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Solomonic wisdom needed: when you can’t have both, which is preferable, the Best Constitution or Best Judiciary?

Which is preferable if you can’t have both: The best constitution in the world or the best judiciary? Solomonic wisdom is required to answer this question. Zambia provides Exhibit 1 concerning this hypothetical conundrum.

At a public forum on the controversial Bill 10 of 2019 at Intercontinental hotel in Lusaka on January 17, 2019, Constitutional lawyer John Sangwa submitted that the Constitution of Zambia as amended in 2016 is the best constitution Zambia has had so far. He also at some point stated, if I heard him correctly, that in constitutional matters, Zambia’s judiciary is a let down.

This sent me thinking: which is preferable, the best constitution or the best judiciary? Now both of the raw material (Constitution and Judiciary) we are talking about were brought by the same regime of President Chagwa Lungu. Was there a catch somewhere if we accept Sangwa, SC’s evaluation of these institutions? Was one designed to defeat the other? Checkmate?

In the midst of this catch 22 Armageddon, the same government that gave us the best constitution and Sangwa’s questionable constitution-interpreting judiciary a mere three years ago, has proposed to decimate through Bill 10 that very best constitution despite it having served the regime very well because of the judiciary that the regime set up. The regime could conceivably have continued to survive through this checkmated calculus.

The opposition to Bill 10 as articulated by Sangwa and others at the Forum is that the government simply wants to win an election by summoning through this process the long dead one party dictatorship.
This article analyses how the best constitution was brought about and how the alleged less than sanguine constitutional judiciary was assembled. We will meet Sangwa again down the stretch.

What is the trajectory of the current Zambian judiciary that Sangwa has so evaluated and which in fact is the handwork of President Edgar Lungu? This is Lungu’s judiciary. Just as Lungu, according to Sangwa, gave us the best Constitution to date through transformation of the old one, so has he transformed the Zambian judicial system and judiciary more than any other Zambian President? Presidents design or attempt to design the judiciary in their own image. What kind of judiciary has Lungu designed or attempted to design for Zambia? Thou shall know them by their fruits. So simple.

A bit of history is in order to set the stage for the current state of the judiciary. President Kenneth Kaunda was hamstrung and straitjacketed into maintaining the colonial judiciary when he assumed full Presidential powers in 1964 because of the paucity of indigenous Zambians to assume judicial posts. He had no choice but to continue with the existing judiciary until about the Mid-seventies and later when Zambian-born judges became available. Kaunda never tampered with the judicial hierarchy as it then existed except a few renamings of a court here and there. Like every president, he appointed judges of his liking but few if any, complained of the judge’s qualifications to perform their duties. Of course, I stand to be corrected. Unlike other countries, there is no book on Zambia’s judiciary, so information is thin.

Presidents Frederick Chiluba, Levy Mwanawasa and Rupiah Banda left the judicial institution and judiciary more or less as they found them. Questions of course about judicial autonomy and independence have always arisen under all presidents. But these questions existed within the inherited and existing judiciary and judicial system.
President Michael Sata began to deviate from the known arrangement by removing a Chief Justice and appointing an Acting Chief Justice as well as an Acting Deputy Chief Justice. The Acting Chief Justice and her Acting Deputy became more or less permanent in that role of Acting and the status remained so during Sata’s tenure. A lot of tension was exhibited during that time including litigation by LAZ concerning the tenure of the Acting Chief Justice. Sata even instituted the Chikopa Tribunal to remove sitting judges, something that had never happened before.

Then came President Lungu who completely overhauled the entire judicial system, judicial hierarchies and judiciary. His remake was either revolutionary or counter-revolutionary. And that is where you the reader come in for your own independent assessment. John Sangwa has partially pointed out his evaluation. I just provide the following indisputable facts as follows, sprinkled with my own interpretations and opinions. I may be wrong on the facts here and there and I stand to be corrected.

Justice Irene Mambilima declared Lungu as the victor by 27,000 votes over opposition leader Hakainde Hichilema in the January 2015 Presidential by-election necessitated by the death of President Sata. Shortly after Lungu was sworn in, he appointed Justice Mambilima as Chief Justice of Zambia, removing the then permanent Acting Chief Justice Madam Lombe Chibesakunda. Charles Mwewa and I wrote an article at the time questioning the optics being beamed about appointing as Chief Justice someone who had just declared you a victor in a heavily contested election in which the declared President could have lost given the narrowness of the margin of victory. There was then no Constitutional Court. Was the President building a judicial architectural foundation for his protection in case there will be future contested election results petitions? Flash to the future. President Lungu was later heard in a tape recording stating something like, ” we didn’t get the vote in 2015 and 2016 but we are still here. If we lose in 2021, we won’t move out” or words to that effect. Mwewa and I speculated whether Lungu was positioning himself to beat any judicial challenge to the election outcome of 2016 by redesigning the judiciary. Speculations, informed as they maybe are not facts. Everybody knows the results of the 2016 Presidential Election Petition. Were Charles Mwewa and I too far off the mark or did we hit the bull’s eye?

In the same breath as the appointment of Chief Justice Mambilima and removal of Acting Chief Justice Chibesakunda, an appointee of President Sata, came the steps to remove Director of Public Prosecutions, Mutembo Nchito, an appointee of Sata, and a person who was seen to be fighting corruption. The background information as to why and to what eventually led to the removal of Nchito was debated through litigation. The reasons for the decision of the Tribunal to remove him are not in any publicly available transparent format. It is in the hands of the Constitutional Court, a total creature of Lungu. No pun intended.

Let’s digress and talk about the Constitution. Sata did not fulfill the campaign promise of bringing a new constitution in 90 days. The atmosphere was that the PF was going to lose the 2016 elections if they did not design and bring a new constitution. It fell on Lungu to design a new constitution through which he fundamentally changed the judicial system and judiciary by inserting the creation of a Court of Appeal and the Constitutional Court (Concourt), the latter to adjudicate only constitutional issues. Other courts were collapsed to be wings of the High Court in Commercial and Industrial Relations matters and others. The creation of the Court of Appeal and Constitutional Court and other courts gave Lungu an unprecedented opportunity (not available to Kaunda, Chiluba, Mwanawasa, Banda, Sata) to appoint old or entirely new judges after his image and that of parliamentary in which he held the majority, to the judiciary. Most commentaries have focused on the appointments to the Constitutional Court whose judges could make or remake politics and political leaders, by constitutional interpretation or misinterpretation. Lawyer John Sangwa, SC, wrote a widely oft-quoted scathing article about the lack of qualifications of the soon-to-be appointed judges of the Constitutional Court. At the Forum on January 17, 2020, Sangwa’s opinion hadn’t changed, 4 years later.

Starting with the dismissal of the injunction on Ministers staying in office, the handling of the Presidential Election Petition of 2016, the election petitions cases in Munali and Lusaka Central to the decision on whether or not President Lungu was eligible to run for a third time in 2021 tell their own stories about Sangwa’s and also Dr Sishuwa Sishuwa, Prof. Michelo Hansungule and Prof. Muna Ndulo’s analyses of the predilections of the Judiciary and the Concourt designed by Lungu.

The decision to repose constitutional matters in a new Constitutional Court when there was already an experienced court and justices in the Supreme Court of Zambia was suspect. The design to create two equivalent apex courts is unprecedented. Anyway there is only one apex court, the Supreme Court (US, Canada, India, Kenya, Britain etc) or Constitutional Court (South Africa, Angola etc) to which all cases, constitutional or otherwise, end.

The Constitutional Court was supposed to have 13 judges, but only 6 were appointed in 2016 and the 7th was only appointed towards the end of 2017 (two years later) when Lungu’s eligibility to run for office a third time was about to be decided. A motion was made to include the newly appointed judge in the decision-making process, unprecedented anywhere else to make such a move. The 7th Judge was allowed in. It is still fresh how this was done. Lungu continues to design his judiciary just as Donald Trump is doing in the US with Trump openly gloating over the Pyramid that he has created. Is Lungu privately gloating?

Since the 7th Justice was appointed in Zambia, there have been no steps taken to appoint the rest to a full complement of 13. You can only speculate as to why. This ConCourt is overworked and it is failing to render timely judgments.

The new amended constitution itself was adjudged by the very regime that created it to be a disaster. They clearly are not in agreement with Sangwa that this is the best constitution ever in Zambia. Their best constitution is one that gives their President more executive powers, hence Bill 10. But the President had said that he could sign it with his eyes closed because it was so good and he did, despite the cautioning by former Brigadier General Godfrey Miyanda. Was the President economical with the truth? Was it an election game-changer because he knew he had fixed the judiciary? Was it a gimmick? The Minister of Justice Given Lubinda began to campaign after the election victory of 2016 that there were so many lacunae in the constitution that it needed to be reamended. But Bill 10 has not addressed any of the purported lacuna. What is going on here? The government is removing what Sangwa has called the best constitution Zambia has ever had and this government is seeing a problem with the very best constitution that they gave birth to by attempting to give us the worst constitution in Zambian history.

Meanwhile, the Bill of Rights is contained in an unamended Constitution, 1996. This government has not touched that aspect. Our Constitution is like a coat of many colours. Our constitution was tampered with in a hurry for purposes of winning an election in 2016. It is being tampered with again to win an election of 2021, now with powers to extinguish whatever is remaining of the independent power of the judiciary. I posit that our judicial system and judiciary were redesigned to win an election and to stay in power.

The saga continues: can we have both the best constitution and the best judiciary? We the People now have to participate in finding the solution and we the people can be trusted to come up with Solomonic wisdom.

Dr. Munyonzwe Hamalengwa is a Law Teacher and author of “The Politics of Judicial Diversity and Transformation”, among others.

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