IS the Constitutional Court of Zambia denying Zambians justice embedded in the Constitution in its constitutional rulings on technical grounds and on injunctions? It is my considered and researched opinion that the Constitutional Court has continued to fail Zambians when it comes to its decisions on the most important constitutional rulings, starting with its rulings on interim injunctions in cases that really matter to the majority of Zambia.
The ConCourt refused to issue an injunction in the Ministers staying in office after the dissolution of Parliament case and Zambians have continued to suffer irreparable harm and damages up to November 2019 and beyond from early 2016. The decision to refuse to issue that injunction when in my considered opinion and that of many other Learned Observers should have issued was inexplicable because the Petitioners satisfied the tripartite test of serious/genuine issue to be tried; irreparable harm and balance of convenience, no matter how one looked at that case. In any case, the proof in that particular case is in the eventual decision and the cascading irreparable harm that the country has continued to endure because of the refusal to issue an injunction in a clear case like that one in the first place. The decision eventually vindicated the Petitioners in that the ConCourt found in their favour. We call this winning by losing. They eventually won the case but Zambia has lost in irreparable harm of loss of financial resources and that some ministers won because of the benefit they derived during the elections by utilizing government resources. The injunction should have issued.
It is always stated that a case must not be analyzed with the clear benefit of hindsight where the vision now becomes 20/20. This case however is not. It was clear right from the beginning that the correct decision militated in favour of issuing the injunction. It crossed some of our minds that because the ConCourt was still new and the judges were newly appointed, making an important first decision in their young constitutional lives, they ruled in favour of the status quo as is the won’t of many newly appointed Judges. This issue of new judges not wanting to dirty the waters and the trust of the appointing authority despite the oath of office and the protections of the tenure of office has been written about by judges themselves and by prominent scholars, and we need not belabour it. So it is understandable with respect to that first ConCourt decision if one thinks outside the box of the decision itself. No judge says in a judgment that they are ruling this way because they are new on the job.
That first misfiring on the issue of injunction and the resulting and continuing irreparable harm on Zambians is not only in terms of political loss and financial loss, it is in the imperatives of the rule of law itself. The Ministers have refused to pay back which is literally disobeying a court order. One of the most serious disorders in a democracy is the disobedience to court orders without repercussions. Breakdown in the rule of law is evidenced by the government of the day disobeying court orders, with impunity. The Ministers who refuse ought to be in jail now. Or they ought to have their salaries garnished if jailing them for contempt is too drastic a step in this our fragile democracy. Some ministers are pointing to the President as responsible for their acts though the decision is not against the President. Has the President remained mute as is his habit? The rule of law is being dismantled in our very eyes.
Now what if all powerful entities like multinational corporations, banks, opposition political parties, wealthy political and private individuals etc collectively and individually began to use the precedent of the ministers refusing to obey a court order, and also decided to flaunt court orders, what will happen to the reputation of the courts and to the rule of law under a democracy? They can also point to the incidence of impunity where nothing has happened to the ministers and why must anything happen to them? Following precedents is a hallmark of the rule of law. This is no idle analysis, remote as it may sound. The new government after 2021 elections could also use this precedent. If the leaders in government disobey the court orders, why must an ordinary citizen obey court orders? Why must an ordinary citizen pay income tax? The government is ruling by anarchy, so will the people respond anarchically.
The decision to stop the argument and prosecution of the Presidential Election Petition case in 2016, based on technical grounds in a constitutional case demonstrates in my opinion my thesis that this constitutional court is denying constitutional justice to Zambians based on its ruling on technicalities. The rule of thumb in constitutional matters is that the constitutional case must not be defeated on technical grounds. This is the position in history everywhere including in Zambia until that case. Once a case has started of a serious constitutional matter within the set deadlines of commencement of the case, it cannot be aborted in mid-air on technical grounds. Even the National Dialogue Forum saw the futility of thinking they could have finished their job in the set time-frame. They couldn’t and they were given more time. And what they were called upon to deliberate on was mikey-mousey compared to the Presidential Election Petition case of 2016 where the Court never gave guidance on the timelines. The lawyers did also not demand set guidelines. There are precedents in Zambia and all over the world that have stated that technical grounds must not defeat the prosecution of serious constitutional matters. In Zambia, the Anderson Mazoka case, a Presidential Election Petition Case is a precedent which ought not to have been ignored. Justice was denied to Zambians by the 2016 decision on the Presidential Election Petition based on technical grounds. This court has continued to deny justice to Zambia based on technical grounds.
The latest denial of justice based on technical grounds in my respectful opinion is the ConCourt decision to quash the subpoenas issued against Justice Minister Lubinda and Attorney General Kalaluka. The court reasoned that the Petitioners, LAZ did not seek leave of the Court to issue the subpoenaes. LAZ sought to subpoena the ministers so that they could come to court to give evidence based on the documents they may have gathered to come up with the rationale to amend the Constitution of Zambia. Would anyone seriously knowledgeable in constitutional matters doubt the importance of any background documents? There are criteria by which judges use or refuse to exercise their discretion: serious/genuine issue, prejudice to the other party etc. No one would doubt that the existence or non existence of background documents to justify the amendment of the Constitution in the current manner raises a serious issue. Or was this enterprise dreamt from thin air and the ambitions of a few politicians without any trail of documentation? What prejudice could accrue to either Minister or the Respondents if these Ministers brought the presumably already existing documents? The decision to quash the subpoenas on technical grounds is an affront to constitutional justice in Zambia and the use of discretion in that manner is an error. Serious constitutional matters must not be demobilized on technical grounds. None existent precedents are being erroneously created by this ConCourt.
The refusal to issue an injunction on the continuation of the National Assembly deliberation on Bill 10 in the face of the serious demonstration of the existence of the tripartite test is reminiscent of the Minister’s stay in office during dissolution of Parliament, except that this one is more serious with monumental irreparable harm on constitutional democracy in Zambia. No one doubts about the serious issues in this matter nor on the balance of convenience. What is usually debatable is irreparable harm. If there is any case in Zambian history where irreparable harm is palpable, it is this case of Bill 10. The issues engage the very existence of this constitution and democracy under which we live.
The test for what is happening is the following: is the legislative intent involved in this amendment in constitutional compliance with the tenor and values of the constitution of Zambia? There is a always a presumption that whatever the legislature does, it is in compliance with constitutional values embodied in the constitution. This is usually done or demonstrated in documents that pre-exist the constitutional bill or act. These are documents LAZ wanted from the Minister of Justice and the Attorney General. These are the documents for which the subpoenas had been issued and the ConCourt quashed. An injustice is brewing here, perpetrated by our ConCourt.
If the Legislature is bringing in an amendment that is not in compliance with the tenor and values embodied in the constitution, there could be no deference to the legislature or its intent by the Court. The Legislature is not above constitutional scrutiny in exercise of the much touted sovereign intent or will if what that exercise entails is to eviscerate constitutional values embodied in the existing constitution. The legislature has no jurisdiction to destroy the tenants of constitutional values of democracy, good governance and the rule of law. The Legislature has no jurisdiction to abolish our constitution. The legislature should be enjoined before it destroys the current constitutional values on which our democracy rests. How many times have any court undone constitutional amendments that have now become part of the constitution? Hardly. We are cascading towards permanent irreparable harm if the National Assembly debates this Bill and possibly enact it into law of the constitution before its merits based on the current constitution are aired transparently in a court of law. The refusal to issue the injunction in this case is a miscarriage of justice. Zambians have been denied their right to constitutional justice by the ConCourt’s refusal to issue the injunction. How can there be a serious issue after the Legislature has already amended the constitution. The whole case becomes moot. Given the track record of the ConCourt, can it be expected to quash the constitutional amendment after it has become part of the Constitution? There is no precedent. It becomes a moot question resulting in permanent irreparable harm as a rapacious dictatorship takes over based on its constitutional design with the blessed imprimatur of our Constitutional Court. The case is now remanded to the court of public opinion.
Dr Munyonzwe Hamalengwa teaches law in Law School.