Where is the critical voice of Zambia’s legal academy while the constitution is on fire? If one just came from outer space, they may think that Zambia has no law schools compared to the vibrancy of the earlier years at UNZA, the current state of law schools in Kenya, Uganda, South Africa, Pakistan, Canada, US, Britain, Israel, Canada and elsewhere. The visitors would find Zambia’s legal academy dead, when in fact it should be at its most liveliest because this government wants to kill Zambia’s democracy. This government has also killed Zambia’s judiciary. This government has killed Zambia’s law enforcement agencies. Zambia is cascading towards a Constitutional Dictatorship, constitutional only because of the manner in which dictatorship would be foisted on Zambia, not through a military coup but through constitutional amendments.
The evisceration of Zambia’s independent legal thought and voice when it concerns grave constitutional issues affecting the country is evidenced by the volumes of silence by legal scholars based in Zambian law schools and law institutions. Nary a voice is heard from the legal academy, for example, about Bill 10. Each law school teaches several mandatory first year courses, critical of which is Constitutional Law. There have been so many constitutional law issues, developments and case law that should have engaged spirited commentaries of the independent legal academy. These commentaries need not take any political overtones. They could be nuanced neutrally but informative or they could be rabidly political. Zambia is a democracy and democracy is based on the contestation of ideas. Democracy is anathema to burying one’s head in the sand like an ostrich when it sees danger.
The myriad voices of the legal academy ought to be heard whether or not these disparate voices are supportive or opposite any grave constitutional issues of the day in order to provide sober legal analysis or perspectives, and therefore necessary leadership to the country’s debates. Legal scholars are supposed to be experts in their areas. Scholars have an opportunity and obligation to read, analyze and follow closely the areas in which they teach and therefore are supposed to comment with a measure of competence to provide leadership on these issues. What explains their silence? Your guess is as good as mine.
Legal commentary by the legal academy need not be in any format or forum or medium. It can be in any format. Whatever the format or the forum, it must be heard. The legal academy has seen or heard all types of commentaries from many voices, including the Economic Association of Zambia (EAZ), the Law Association of Zambia (LAZ), many civil society organisations, political parties, individual politicians, media pundits and so forth. The province and jurisdiction of the legal academy is the law. The constitution is the supreme law of the land and therefore the platform on which the legal academy must play. Where is the voice of the legal academy in general and in Zambia in particular?
The voice of the legal academy enhances the quality and quotient of democracy and justice. It improves the quality of the debate. After all the legal academy supplies the canon and fodder for the present judiciary and future judiciary. The legal academy teaches the students who will become lawyers and judges of today and tomorrow. You are what you have produced. In order to have better lawyers and judges today and tomorrow, the legal academy need to engage in critically debating the critical issues of today. This is not happening now. It shouldn’t be that way.
The legal academy need not necessarily speak as individual voices though that is necessary in a democracy, but can speak as a civic or civil society organization. On May 21, 2016, shortly after my arrival from many years abroad, I sent the following letter to all Law Deans. I proposed the formation of the Zambian Association of Law Schools and Law Teachers (ZALS) so that Law Teachers can speak with one voice in law and legal matters of national importance. Such a voice must nit only be left to LAZ.
It is quite horrifying to see the extent of the silence of the Zambian legal academy in critical constitutional matters of the day compared to the respective positions on similar matters of their counterparts in Pakistan, Kenya, South Africa, Nigeria, Ghana, Canada, the US, Britain, Israel, Australia and so on.
If this association was formed, it could have critically guided the debate on Bill 10, a bill that wants to demobilise our democracy with our eyes wide open. No law teacher worthy his salt would want democracy that we fought so hard for, eviscerated by this government through Bills like Bill 10. The academy should be very angry about this. They could have spoken with one voice through ZALS. Imagine if that Bill was presented in Kenya, Pakistan, Israel, South Africa, Nigeria, Ghana, Canada, the US, Britain etc! The legal academy would have been up in arms. In Zambia, everybody else has spoken, including LAZ, except the legal academy that produces law students, lawyers and judges.
Here is the proposal that I had sent on May 21, 2016:
Whereas Zambia has a number of law schools and most of which are very new,
And realising that all law schools are afflicted with more or less the same problems of shortage of human resources in terms of professors, senior lecturers and lecturers, face the same challenges of lack of financial resources and paucity of legal resources in the libraries where these exist, and noting that coordination through joint efforts to deal with these challenges is a sine qua non to individual and collective success, now therefore, Zambian Law Schools have decided to form an Association named, the Zambian Association of Law Schools and Law Teachers (ZALS).
The objectives of ZALS are:
1. To act as a common front in coordination to deal with the challenges facing Zambian Law Schools and Law Teachers.
2. To share legal information about the best practices in the running of Zambian Law Schools and the teaching of law,.
3. To gather and disseminate legal information about the best and latest teaching methods in the field of law.
4. To jointly and in a reciprocal fashion supervise each other’s LLM and Doctoral students or be on the Dissertation and Theses committees.
5. To promote legal education in law schools that benefit the socio-economic development of Zambia.
6. To lend support to each law school in terms of filling in gaps in the shortage of law teachers, teaching materials, library resources and sundry other matters.
7. To coordinate with both the Law Association of Zambia (LAZ) and the Zambia Institute of Advanced Legal Education (ZIALE) in efforts to produce the best law students, ZIALE students and lawyers through legal education efforts and joint provision of best legal materials in continuing legal education.
8. To interface with the judiciary on a continuing basis in order to provide each other with the best and latest legal information and best judicial practices from within and without Zambia for the benefit of law students, lecturers, lawyers, judges and society as a whole.
9. To share joint platforms on a continuing basis with government legal departments and law enforcement agencies for mutual legal education benefits in the promotion of good governance and best legal practices from around the world.
10. To support legal developments that enhance good governance in Zambian Law Schools and in Zambia as a whole.
11. To be part of regional and international associations of law schools and law teachers for the advancement of the local objectives of ZALS and Zambian positive legal developments.
12. To raise funds in order to jointly send a law teacher or law teachers on a rotating basis to attend the annual Commonwealth Law Association, International Bar Association, American Bar Association, Canadian Bar Association, SADC Law Association or other legal conferences in order to acquire and share latest international legal knowledge and best legal practices in comparative and international law.
13. To jointly assist and comment on the possible correct legal courses to adopt if consulted by any interested party in Zambia in furtherance of the rule of law, good governance and constitutionalism.
14. To act as amicus curiae or intervenor in any appropriate legal cases of national importance.
15. To protect and defend the independence of Zambian Law Schools and Law Teachers in terms of the functions of law schools and the philosophy of autonomy and independence of universities.
16. To jointly participate in the provision of access to justice by way of legal aid clinics to the disenfranchised.
17. To engage in mooting competitions against other law schools in Zambia and sending better teams abroad to represent Zambia in mooting competitions.
18. To advocate for country and regional recognition of practicing certificates so that lawyers within SADC can practice in any country in the region subject to approved requirements.
19. To exchange law teaching staff for a term or year within Zambia and within SADC to teach in other law schools.
20. To allow students to experience a term or year in another law school within SADC or elsewhere.
To accomplish the above objectives, ZALS shall be governed by a council consisting of a Secretary-General, a financial officer and an IT specialist and such other personnel as deemed necessary by ZALS who shall hold office for two years after an election.
The Council of ZALS shall meet bi-monthly or as necessary.
The Council shall meet on urgent AdHoc basis to formulate a legal position representing ZALS perspective on any issue of urgent national importance.
The Council shall publish bi-monthly a newsletter or blog in which it shall share latest information on legal developments of interest to the membership and Zambia as a whole.
And such further actions and programmes as deemed necessary by the Council or members in the interests of the Law Students, Law Schools, Law Teachers and Zambia as a whole.
End of the proposal.
Update: As of September 30, 2019, I have not heard from Law Deans about this proposal. Any time I have broached the subject since, there has been utter silence. In a democracy, you cannot force anyone to do anything even that which is in their best interests, for example, when evidence points in one direction that Bill 10 will destroy Zambian democracy as we know it.
Martin Luther King Jr. once said that “the voices you eventually remember are not those of your enemies, but the silence of your friends”. The legal academy should be a friend of democracy. It’s is their silence that will be remembered during this stretch of Zambia’s journey through this thicket of legal landmines.
Dr Munyonzwe Hamalengwa is a Law Teacher. His forthcoming book is entitled, “Commentaries on the Laws of Zambia”.