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Let Zambia’s courts arise

[By John Phiri]

Rainbow Party General Secretary Wynter Kabimba has in the recent past published some very well reasoned articles of great legal and national interest. This week he turned his political and legal mind to the apparent tiff between the Constitutional Court and Speaker of the National Assembly Patrick Matibini.

Kabimba is quoted as asking President Edgar Lungu to intervene in the conflict between the Speaker and the Constitutional Court before it becomes problematic.

“This is an important matter in which the President should take interest and avoid a situation where one day we actually have a direct conflict between the two arms of government; the Judiciary and the Legislature or between the Chief Justice and the Speaker, like it happened in Zimbabwe. In that country, the High Court handed down a judgment in favour of former Prime Minister Ian Smith, who was a member of parliament then, and ordered that his suspension from parliament was illegal, and that he must be paid all his emoluments for the period he was on suspension.”

But the Speaker of the Zimbabwe parliament refused to obey that judgment of the court, resulting in threats from the Chief Justice and his Supreme Court colleagues that they were going to resign if the Speaker was not compelled by the Head of State Robert Mugabe to obey the judgment. Mugabe stepped in and resolved the constitutional crisis between the Judiciary and the Legislature.

“I think there is a precedent here that President Lungu should fall back on in order to avert an apparent direct conflict of two arms of government. The developments, which have their genesis in the (Chishimba) Kambwili case, which was the first time that the ConCourt attempted to pronounce themselves on the extent which the Speaker cannot go in discharging his functions on constitutional matters, have led to an atmosphere of unease,” Kabimba is quoted as saying.

For these reasons, Kabimba feels that President Lungu should intervene before this apparent conflict gets out of hand.

This proposed solution presents a frightening prospect, and this has nothing to do with Kabimba himself. It is easy to understand how Kabimba has fallen into this benign blindspot. He has assumed and mistakenly held President Lungu to the same personal regard for the law and rule of law as his own. Perhaps Kabimba found that this was so when they both worked as lawyers. But as a political operator, President Lungu has betrayed compromise in this regard.

Remember the ConCourt ruling on ministers remaining in office after dissolution of parliament? This case remains unresolved, largely because of the comments President Lungu has made regarding ministers paying back the salaries they received during the time that the ConCourt ruled they were in office illegally.

Before the case went to court, President Lungu declared publicly that he too was a lawyer, he had checked relevant provisions and believed the ministers continuing in office had solid legal defence. It turned out his topnotch opinion was wrong. After the ConCourt ruling that the ministers pay back, President Lungu has shilly-shallied on making his government obey this order.

If President Lungu was a stickler for the rule of law, he should have lent the culprit ministers money to pay back what they ate, being the one who “appointed” them to continue in office illegally. To date President Lungu has done nothing to compel his colleagues to obey the ConCourt order. In this matter, the President has done very little that can stand up as promoting respect for the rule of law.

Now, in the light of this conduct by President Lungu, would Kabimba still be confident in proposing that he should intervene in any apparent conflict involving the ConCourt, or indeed any court?

Probably not. But if he still needs convincing, he should have listened to MMD President Nevers Mumba at his last press briefing. He narrated how after beating seven other candidates to be elected MMD President, the battle entered the courts. During the three years the case was in court, Dr Mumba won in the High Court, in the Court of Appeal for Zambia, in the Constitutional Court and in the Supreme Court.

This is what Dr Mumba said: “A few days ago, President Lungu made a very troubling statement. He said to the whole nation that he does not recognise Nevers Mumba and the MMD. Instead he recognises the other people who lost the case. That makes my heart tremble. If he does not recognise court outcomes, then we have a very serious problem….”

Unfortunately, Dr Mumba did not make known the medium that President Lungu used to make this “troubling statement”. His comments on this statement were more extensive than we have quoted.

The question to Kabimba remains the same: if what Dr Mumba says is true, does he still think that President Lungu is the one to intervene in the apparent conflict between the ConCourt and the Speaker?

Kabimba, and other political leaders, should actually be advocating the opposite – that President Lungu should steer very clear of any kind of intervention in the judiciary, regardless of whatever may be perceived as “apparent conflict” between the Legislature and the Judiciary.

This has not escaped the attention of legal eagle, State Counsel John Sangwa. He was quoted as saying not only that Kabimba’s suggestion is dangerous, but also that the President has no such powers to interfere in the operations of the Judiciary.

Sangwa goes further to say that the President was not superior and that such sentiments as those of Kabimba were the kind that made the Head of State feel like he is above the law. He said that if President Lungu was to intervene, he would not only be violating the independence of the Judiciary, but would also be interfering in the operations of the Speaker.

Then threw in the caution that encouraging President Lungu to intervene in the ConCourt- Speaker disagreement could actually undermine the independence of the Judiciary. This is significant.

An independent Judiciary is the last bastion for protection of citizens’ rights against wanton, arbitrary, bad faith acts committed by corrupt public officers and political leaders intent on furthering special interests of well-connected business syndicates.

Thus far President Lungu has shown himself unable to stay above the political fray when confronted by unfavourable court judgments. This has been so in the earlier stated ConCourt order that his colleagues, the ministers pay back what they received when they remained in office illegally. That is at the political level.

What Kabimba and other political party leaders must be vigilant, so that they do not unwittingly strengthen President Lungu’s hand against the Judiciary. They should instead do their utmost to prevent him and the executive from extending either implied or actual influence, let alone intervention, in operations of the Judiciary.

Zambia’s judiciary is just about due for its moment of greatness, in the new tradition that supreme courts and constitutional courts in the region have been rousing themselves to their full regal stature by the quality and import of final decisions in momentous, epoch-making cases.

South Africa’s Constitutional Court did the previously unthinkable when it effectively declared President Jacob Zuma a “constitutional delinquent” while he was still in office.

Kenya’s Supreme Court scored a continental first when it nullified re-election of an incumbent President Uhuru Kenyatta, and elevated the democratic capabilities of the nation and all political players.

Then the Malawi Supreme Court of Appeal came in with what is currently the gold standard, delivering a judgment that did not just embody supreme legal wisdom to rescue a nation poised for eruption, but whose prescriptive orders detailed a dignified way to hold a credible redemptive election.

Are there no cases before Zambia’s Supreme Court, whose final decisions can also unfurl before the whole world the finest legal thinking the country’s hard working judges are capable of, and display independent thought and action of the Judiciary in operation?

These need not necessarily be political cases, but ones whose final decisions will be precedent-setting, such that they become legal compasses by which the country can determine whether or not the conduct of government and its agents, and indeed all other actors, conforms to the dictates of the rule of law.

Leave the courts with their independence intact, and they will rise to the occasion.

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