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You shall know the character of your judiciary by its decisions

“Marbury -and- Madison”‘ a case decided in 1802 by the United States Supreme Court under the able Chief Justiceship of Justice John Marshall established that the judiciary is not a doormat of other branches of government, that it is a Co-equal to other branches of government, namely the Executive and the National Assembly. Among the powers of the Judiciary were that of judicial review, to review the legality and constitutionality of the activities of other branches of government. No matter what activities those other branches engaged in, they were not above the law.

Despite the powers given to the Judiciary, written or unwritten but which are clear, the Judiciary has historically played second fiddle to the executive and to parliament, especially in times of national emergencies. Lord Acton once had to remind the judiciary and the government of England that the law does not fall silent during crises. Law continues and must continue to assert itself.

Despite the role of the judiciary In democratic societies, occasionally demagogues arise who try to intimidate the judiciary into playing second fiddle to the Executive and Parliament. We have seen individuals as acclaimed as President Abraham Lincoln of the United States attempt to remove powers of the judiciary during times of emergency but independent and autonomous judiciaries refuse to be intimidated.

The judiciary itself has demonstrated inherent weakness within itself, behaving in an inferior manner during times when it is needed most to flex its constitutionally given powers, especially during times of national emergencies when citizens’ rights are at their most vulnerable to perish.

Some judiciaries have existed behind the times, some have been current with the times and some have existed beyond their times as measured by the norms, expectations and experiences of their societies. Generally it is the character of the Chief Justice or some towering jurist within the apex judicial institution by which judicial eras are marked. Sometimes the judiciary is enabled by several powerful learned personalities asserting their autonomy and independence. The judiciary is at its strongest during such times.

The Judiciary is a much studied institution in many parts of the world but unfortunately, it is not as studied in Africa in general and in Zambia in particular as it should be. Articles in newspapers do not constitute sustained studies of the judiciary in any society though such articles form part of the fodder for such studies. Study of the judiciary in many societies is done by the judiciary itself through autobiographies, conference papers, decided cases, newspaper articles, transcribed interviews, LLB, LLM or PhD dissertations and so on. There are also some lawyers and scholars who have devoted themselves to the study of the judiciary, individual justices, ferreting of judicial personalities through their case law output and so on. The study of the judiciary in my estimation is extremely important as it contributes to understanding the internal and external forces that determines judicial behaviour and how this understanding could be harnessed to improving the rule of law, enhancing judicial autonomy and independence.

The character of the judiciary sometimes can be revealed by analyzing one case, especially if it involves a politically dynamic issue. Sometimes the character of the judiciary can be ferreted out by analyzing a series of decisions made in the year or years by the same judicial composition. You can also know the character of the judicially by comparing the judiciary to the judiciary of another country during the same era or different eras. Or you could compare a seminal decision involving let’s say Presidential Election Petition, and how it was handled in Kenya, Malawi, Zambia, Ghana, Nigeria etc and be able to determine the character of the judiciary in each of these countries, at the same time you could determine the nature of politics in each of these countries and whether the judiciary is autonomous and independent or whether it is a captive institution.

The age of the judiciary sometimes explains partly its character. A new judiciary and or a new judge is usually hesitant and uncertain and wants to learn before flexing the constitutional muscle of autonomy and independence. The judiciary and the judge undergo growing pains.

Having mapped out above how the judiciary can be studied to determine its character, what in your estimation is the character of the Zambian judiciary in general or its levels (Supreme Court, Constitutional Court, High Court) in particular are? You can pursue any line of study: a case or cases, comparative studies with other judiciaries, judicial personalities through the cases, you can build on what other scholars have written or said, you can compare Presidential Election Petitions in other jurisdictions and so on. Make your pronouncement.

Lately I have been fascinated by the goings on in England where the Scottish Court of Appeal pronounced that the suspension of Parliament by Prime Minister Boris Johnson was illegal and had been obtained by fraudulent lies. The Supreme Court of England will decide finally the fate of whether the suspension of Parliament was legal. Could any Zambian court have said the same in relation to a similar matter in Zambia? That decision in England is on uncharted territory of second guessing the Prime Minister’s given powers of jurisdiction to prorogue parliament. But he prorogued parliament because parliament had denied him the ability to call an election. Parliament also denied him the ability to pull out of the European Union without an agreement with the European Union. The judiciary has been presented with both legal and political issues but trimmed them down to legal issues and pronounced itself against the Prime Minister. The judiciary is perfectly within its jurisdictional field to pronounce itself against the Prime Minister or Parliament. Can the Zambian judiciary do the same?

Boris Johnson is attempting to alter the fundamental precepts of English democracy. The judiciary has been moved to resist.

There is jurisprudence from India that is clear that the President or Parliament is prohibited from engaging in legislation that will fundamentally alter the character of Indian democracy. Zambia is engaged in such a debate right now. There is legislation that will fundamentally alter the character of Zambian democracy as it currently is constituted. Any decision by the courts on this issue will mark for a long time the character of our respective judiciary.

Dr. Munyonzwe Hamalengwa teaches law in Zambia. His forthcoming book is entitled, “Commentaries on the Laws of Zambia”.

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