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Why is Chief Justice Irene Mambilima shielding the misconduct of ministers?

[By O’Brien Kaaba and Felicity Kayumba Kalunga]

Corruption is a massive problem facing Zambia. Major corruption scandals involving senior government officials occur with such regularity that the country is literally being stolen. Ironically, the culprits are the public officials entrusted to manage its affairs.

The consequences of corruption are well-known. It undermines the rule of law, deprives people of services, destroys meritocracy and the moral fiber of the country. As stated by the former South African Chief Justice, Arthur Chaskalson, in the case of South African Association of Personal Injury Lawyers v Health Willem Hendrik and Others Case CCT 27/00 (2000), “Corruption and maladministration are inconsistent with the rule of law…They undermine constitutional commitment to human dignity, the achievement of equality and the advancement of human rights and freedoms. They are the antithesis of the open, accountable, democratic government required by the constitution. If allowed to go unchecked and unpunished they will pose a serious threat to our democratic state.”

It is for this reason that corruption should be fought and contained in order to foster a culture of transparency, accountability and integrity in the public service. Zambia, like many other countries, has multiple legal instruments intended to help with this. One of the relevant statutes is the Parliamentary and Ministerial Code of Conduct Act which is the ethical code of conduct for Ministers and Members of Parliament. It, inter alia, requires those who fall under its jurisdiction to declare their assets, liabilities and income at set intervals.

It is this statute that Chapter One Foundation invoked on 13 January this year when it wrote to the Chief Justice of Zambia, Mrs Irene Chirwa Mambilima, asking her to establish a tribunal to investigate ministers who had violated its provisions. The Foundation alleged, based on their searches of the register of declarations for the period 2016 to 2020, that 40 ministers had not submitted their declarations in the manner prescribed by section 10 of the Act, that is, within 30 days of their appointment and within 30 days after each anniversary of their appointment to office.

However, in a letter dated 11 February 2021, Justice Mambilima, refused to appoint a tribunal to investigate the allegations of misconduct against the 40 Ministers. Instead of setting up a tribunal as required by law, the Chief justice proceeded to determine the merits of the complaint by stating that her records showed that “of the 25 Members (to whom Section 10 applies), 8 consistently filed their statutory declarations within the period under review. The remaining seventeen (17) members filed, at most, on four occasions and at the very least, once in the same period.” Justice Mambilima proceeded, “seventeen (17) Members did not appear to have made any statutory declarations in the period under review.”

She then went on to justify her decision to not constitute a tribunal, even against the 17 that she had established had not complied with the provisions of the Act, by arguing that she was constrained from doing so because section 10 of the Parliamentary and Ministerial Code of Conduct Act, had been overtaken by Article 263 of the Constitution. Article 263 of the Constitution provides that “a person holding a public office shall, before assuming office or leaving office, make a declaration of their assets and liabilities, as prescribed.”

We disagree with the decision and legally defective reasoning of the Chief Justice for at least three reasons. Firstly, the Chief Justice has no power under section 13 of the Parliamentary and Ministerial Code of Conduct Act to investigate the allegations and let alone determine the complaint on its merits. Secondly, in her efforts to determine the complaint on the merits, the Chief Justice ventured into constitutional interpretation with the effect of rendering a statutory provision unconstitutional, thereby unconstitutionally usurping the jurisdiction of the Constitutional Court. Thirdly, Justice Mambilima’s interpretation of the Constitution vis a vis section 10 of the Act flies in the face of well-known and established principles of constitutional and statutory interpretation.

Starting with the first point, the Chief Justice has no power under the provisions of the Parliamentary and Ministerial Code of Conduct Act, to investigate or determine the merits of an allegation submitted to her in writing by a complainant. Her powers are clearly outlined by Section 13(3) of the Act which states: “the Chief Justice shall notify the President and the Speaker of the allegation and shall appoint a tribunal in accordance with section fourteen to investigate the allegation.”

The Section is couched in mandatory terms. It uses the term “shall” in relation to the actions that can be taken by the Chief Justice once she has received an allegation of a breach of the provisions of the Act. Her administrative function under this section is purely ministerial. This means that she must carry out the statutory function as a matter of duty, devoid of any discretion, freedom or choice. She cannot therefore opt out of performing this statutory function.

Once Chapter One Foundation had fulfilled the requirements of section 13(1) of the Act, namely, submit a written complaint signed by the complainant, the mandate of the Chief Justice was simply to notify the President and the Speaker of the allegation and appoint a Tribunal. The powers to investigate the allegations and determine their merits are given to the Tribunal by section 14 of the Act. The framers of the Act intended for this power of the Chief Justice to be purely ministerial as they put in place a mechanism to counter abuse of its provisions by creating an offence of knowingly making a false allegation. By proceeding to investigate the allegations and determining them on their merits, the Chief Justice acted illegally and ultra vires the empowering provisions.

The second point we wish to address is the Chief Justice’s unconstitutional attempt to usurp the exclusive jurisdiction of the Constitutional Court by venturing into constitutional interpretation on a matter where she clearly lacked the jurisdiction to do so as shown above. As noted above, the Chief Justice declined to appoint a Tribunal, based on her interpretation of Article 263 of the Constitution.

The binding and authoritative interpretation of the Constitution, except for the Bill of Rights, is a matter reserved to the Constitutional Court. Article 128(1)(a) of the Constitution is categorical in vesting this power in the Constitutional Court and there is no ambiguity about it. Since the Chief Justice was simply being asked to play an administrative role of appointing a tribunal, she had no business in veering into constitutional interpretation.

It seems the Chief Justice learnt nothing from the recent decision of the Constitutional Court in the case of Chishimba Kambwili v Attorney General 2019/CCZ/009 (2020), where the Constitutional Court berated the Speaker of the National Assembly for purporting to interpret the Constitution. The Court went on to say: “The interpretation of the Constitution as a legal instrument is a function of the Courts, the branch of government to whom is assigned that delicate task. Therefore, by ruling as he did, the Speaker exceeded his constitutional power as he strayed or encroached into the adjudicative function of the courts of the land which are mandated to exercise judicial authority of the Republic by interpreting the law and the Constitution.” In the current situation, the Chief Justice is only assigned an administrative role to appoint a tribunal. It is not an adjudicative responsibility. By purporting to interpret the Constitution, she manifestly exceeded her power and encroached on the judicial function of interpreting the Constitution assigned to the Constitutional Court.

Thirdly and lastly, the Chief Justice’s narrow and simplistic interpretation of the Constitution offends well-known and established principles of constitutional and statutory interpretation. The Constitution is the moral sail of the country and by its very nature disavows an interpretative approach that is formalistic and literal. It demands a purposive approach that contributes to the realisation of its underlying ideals and values. Interpretation entails “getting under the skin” of the Constitution in order to determine its point or purpose.

Constitutional interpretation is about looking for the best that the Constitution means in securing the interests of the people and the establishment and disciplining of government. This approach sees provisions in the Constitution not as ends in themselves, but as having an instrumental value, that is, the Constitution is an instrument for the realisation of the values underpinning it.

This approach is best illustrated by Ronald Dworkin’s parable of an inverted community. In this community, members follow a set of rules known as “rules of courtesy” relating to a wide range of social occasions. The people believe that courtesy requires that peasants should take off their hats to nobility. This has been the accepted practice for many years and attained the character of a taboo, that is, the rules are simply obeyed and have not been varied. However, after some time, slowly the members of the community develop a new attitude towards the rules of courtesy. First there is an assumption by the people that the practice of courtesy does not just exist literally but has value, that is, it serves some purpose. This implies that the value behind the practice of courtesy can be expressed or stated independent of merely describing the practice of courtesy.

The second assumption that develops is that the rules of courtesy are not exclusively or necessarily what they have always been taken to be but are instead there to simply serve the purpose of showing courtesy. Dworkin argues that once this new attitude takes hold, then the practice of courtesy is no longer going to be carried on mechanically as people will from now onwards reflect on the institution of courtesy and see it in its best light and may even restate or alter the practice in view of the new meaning. Thus, the people no longer defer to a practice uncritically; the people may, in light of the new assumptions, for example, determine that courtesy does not require removal of hats to nobility but is better expressed by other means. Using this parable, Dworkin argues that interpretation “folds back into the practice, altering its shape, and the new shape encourages further interpretations….”

Taking this approach to constitutional interpretation, it becomes clear that there is no contradiction between the provisions of Article 263 of the Constitution and section 10 of the Parliamentary and Ministerial Code of Conduct Act. Although Article 263 mandates declaration of assets on assumption of office and exit, it does not divest parliament to require intermediate declarations from specific public officers.

More importantly, it is self-evident that Article 263 is premised on fostering transparency, accountability and integrity in public life. This purposive approach to constitutional interpretation is given legal force by Article 267 of the Constitution which sets out relevant guides for its interpretation, which include the need to interpret the Constitution “in a manner that promotes its purposes, values and principles; permits the development of law; and contributes to good governance.”

Article 9 of the Constitution further requires that its interpretation should apply the national values and principles, which include, good governance and integrity. For the public service, Article 173 demands the following, among other principles: “maintenance and promotion of the highest standards of professional ethics and integrity; promotion of efficient, effective and economic use of national resources; accountability for administrative acts; proactively providing the public with timely, accessible and accurate information.”

Constitutional interpretation of laws and actions regulating the public service must therefore apply these principles. A provision in an Act of Parliament that enhances these values and intended to effectuate them cannot therefore be seen as a contradiction.

With regards to the status of law that existed prior to the 2016 constitutional amendment, section 6 of the Constitution of Zambia Act of 2016 is instructive. It provides: “Subject to the other provisions of this Act, and so far as they are not inconsistent with the Constitution as amended, existing laws shall continue in force after the commencement of this Act as if they had been made in pursuance of the Constitution as amended, but shall be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with the Constitution as amended.”

This means that provisions in the laws that were enacted before the 2016 amendment which are not inconsistent with the Constitution continue to be in force. The Chief Justice misdirected herself by interpreting section 10 of the Parliamentary and Ministerial Code of Conduct as being inconsistent with article 263 of the Constitution. Section 10 of the Parliamentary and Ministerial Code of Conduct applies to “an Officer” defined as “a Ministerial office or the office of Speaker or Deputy Speaker.” It therefore only applies to this specific public office.

Article 263 of the Constitution on the other hand applies to “a person holding a public office” which is general provision regulating a class of persons falling in that category. It is therefore incorrect to assert, as did the Chief Justice, that Article 263 of the Constitution overrides the provisions of section 10 as to the frequency of filing statutory declarations.”

Justice Mambilima’s interpretation demonstrates a grave misunderstanding of foundational principles of the law and legal process. It is a well-established principle of interpretation of legislation that the general yields to specific law where the laws in question regulate the same subject. This principle is expressed by the Latin maxim generalia specialibus non derogant, which espouses the presumption that language which is in general terms relates to a class as distinguished from individual treatment.

In explaining this principle, the authors of the Halsburys Laws of England (2018) Volume 96, Paragraph 302 state, in relation to implied repeal of a particular enactment by a general one as follows: “It is difficult to imply a repeal where the earlier enactment is particular, and the later general. In such a case, the maxim generalia specialibus non-derogant (general things do not derogate from special things) applies. If Parliament has considered all the circumstances of, and made special provision for, a particular case, the presumption is that a subsequent enactment of a purely general character would not have been intended to interfere with that provision; and therefore, if such an enactment, although inconsistent in substance, is capable of reasonable and sensible application without extending to the case in question, it is prima facie to be construed as not so extending. The special provision stands as an exceptional proviso upon the general.”

The application of this principle is even more profound in relation to constitutional enactments which by their very nature provide for the general guidelines under which the specific provisions are provided by statute. In a sense, the Constitution can be said to be the bare bones or framework which is fleshed up by the details of specific legislation.

A statute does not automatically violate the Constitution for merely being more specific than the Constitution. Article 261 of the Constitution confirms this position in relation to the regulation of the conduct of public officers. It states that “a person holding a public office shall act in accordance with a code of conduct and ethics, as prescribed for that office.”

For ministers, their code of conduct and ethics is prescribed by the Parliamentary and Ministerial Code of Conduct Act. The Act contains progressive provisions regarding the minimum standard of conduct expected of MPs and ministers, together with administrative justice mechanisms for redress which contribute towards meeting the above constitutional values and principles. If implemented, the Act has potential to not only improve the quality of leadership, but also tame corruption often manifested through the growing abuse of public resources, which now appears to be part of our staple food in Zambia as can be seen from the gloomy annual reports of the Auditor General and the Financial Intelligence Centre (FIC). Good laws are of little use unless they are effectively implemented.

It is therefore incredibly difficult to appreciate the reasoning behind the Chief Justice’s decision in this matter. To have followed the mandatory provisions of section 13(3) of the Act and established a tribunal to investigate the allegations of misconduct by ministers presented the simplest and clearest option in this case. Instead, the Chief Justice chose to act as a highly problematic gatekeeper, one who blatantly disregards statutory provisions and violates well-known principles regulating constitutional and statutory interpretation. One would not be faulted for thinking that the Chief Justice went to great lengths to shield the liable ministers from being investigated by a tribunal as prescribed by law. The question is: why?

The authors are legal practitioners, lecturers and researchers in the School of Law at the University of Zambia. Views expressed in this article, are, however, personal and may not reflect those of their institutional affiliations.

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