[By Felicity Kayumba Kalunga, O’Brien Kaaba and Pamela Towela Sambo]
A COMPETENT, impartial, and courageous judiciary is the bulwark of democracy. Such a judiciary serves as the guardian of the Constitution, defends the weak and disciplines the government. According to the Advisory Panel of Eminent Commonwealth Judicial Experts: “The judiciary must be the one bastion where citizens may go to challenge the arbitrary or oppressive actions of the State. It must be the safe haven where the most impoverished or abused citizen may find support for his or her legal rights when they conflict with those of the rich and powerful in society.”
Zambians elected a new government on 12 August 2021 which marked the end of the Patriotic Front (PF) era. Under the PF reign, the country experienced the worst form of partisan judicialisation of politics by the PF government and its allies. The incoming United Party for National Development (UPND) government has promised, as a priority, to restore the rule of law, among other governance interests. We opine that the restoration of the rule of law should prioritise judicial reforms, and in particular, address, with utmost urgency, the existence of the Constitutional Court. We urge the new administration to abolish the Constitutional Court and rebuild the entire judiciary from scratch by requiring all judges to under-go a mandatory vetting process and dismissing all the judges who will fail the vetting process. In the specific case of the Constitutional Court, we highlight two reasons in support of our argument for its abolishment. The first reason is centred on the constitution and the jurisdiction of the court while the second focuses on the quality of the judgments rendered by the court.
With regard to the constitution and jurisdiction of the Constitutional Court, the idea of establishing a Constitutional Court in Zambia goes back to the 1991 Constitution making process. This initial suggestion, however, did not elaborate the detail of how the proposed Constitutional Court would relate with the already existing courts. In spite of this omission, a stand-alone specialised Constitutional Court was finally established following the 2016 constitutional amendment.
The Constitutional Court as established, has original and final jurisdiction to hear any matter relating to the interpretation of the Constitution; violation or contravention of the Constitution; the election of the President and Vice-President; appeals relating to the election of members of parliament; and any matter concerning the court’s jurisdiction. The Constitutional Court, however, does not have jurisdiction to enforce the constitutional Bill of Rights. This is because the Bill of Rights was not amended in 2016 and, the provision on the enforcement of the Bill of Rights, Article 28, still vests jurisdiction over the enforcement of the Bill of Rights in the High Court and the Supreme Court.
When a constitutional matter, within the jurisdiction of the Constitutional Court arises in any other court, that court is required to refer such matter to the Constitutional Court. A decision of the Constitutional Court is final and not appealable to the Supreme Court. Confusingly, however, Article 121 of the Constitution ranks the Constitutional Court and Supreme Court equivalently. It is open to argue that Article 121 is based on a complete misunderstanding of the structuring of Constitutional Courts within the hierarchy of existing courts in a common law system like ours, where stand-alone constitutional courts have been the norm. Article 121 appears to have been based on a manifest misunderstanding of the civil law tradition where, as a matter of fact, constitutional courts are ordinarily not part of the judiciary but exist outside the judicial hierarchy. This approach was tried but eventually abandoned in South Africa because it is unworkable and leads to contradictory jurisprudence.
The emergence of contradictory jurisprudence is a real problem for a country like Zambia which follows and strictly applies the common law doctrine of precedents, where such precedents are seen as having the force of law. Supreme Court judge Mumba Malila has previously warned of this danger: “There is also the additional risk of the Constitutional Court overruling the Supreme Court on matters that it decides on the basis that a constitutional issue was ignored, or misapprehended by the twin apex court. This has the potential of undermining the twin apex status of the Supreme Court, and, in fact, relegating it to an inferior status relative to the Constitutional Court.” A number of cases from the Supreme Court and the Constitutional Court already demonstrate the materiality of contradictory precedents. It would appear that what is needed in the specific case of the Zambian judiciary is not a stand-alone Constitutional Court, but a special constitutional committee within the existing judicial hierarchy. Such a special constitutional entity could be tasked with hearing important constitutional matters more efficiently in line with slightly relaxed procedural rules. There is nothing magical and extraordinary about having a Constitutional Court.
Many countries with progressive judiciaries, such as Kenya, Namibia, Canada, the United Kingdom and the United States, do not have a separate constitutional court. In the UK, for example, the House of Commons in 2014 inquired into the desirability of establishing a separate Constitutional Court. After consulting leading experts and senior judges, the House concluded that “there would be no need for a separate constitutional court.” One of the respondents, Lord Lester QC, indicated the following convincing reason for rejecting a separate constitutional court: “Once you have a constitutional court, first of all, you are separating something called constitutional issues from ordinary law. I believe that constitutional issues are not so specialised that they require a court specially appointed to deal with them. You cannot be a good public lawyer or constitutional lawyer if you cannot interpret a contract. It is very important that the judges who are interpreting the Constitution know and understand general law, about tort or contract law, criminal law and so on, and bring all that knowledge and experience to interpret the Constitution.”
The second justification for our proposal to abolish the Constitutional Court emanates from our preliminary analysis of the quality of decisions so far made by the Constitutional Court in selected cases. By way of setting the context, a functional judiciary sets the tone for the rule of law in the country. When a judiciary is not committed to the rule of law, it inevitably sends a clear message that impunity is acceptable and such a judiciary or court is deemed to be weaponised against both the people and the values that it should foster. Instead of defending democracy, such a court cultivates a climate of lawlessness and leaves the country in a state of crisis. In relation to the pre-2010 governance crisis in Kenya, a report by Africa Watch, for example, observed that: “At the heart of the human crisis in Kenya is the lack of an independent judiciary. Courts are used to dispose of political opponents and critics. On a broader basis, the courts have become a weapon for the powerful and wealthy to settle personal vendettas and local disputes.”
This is exactly what the Zambian Constitutional Court has reduced itself to in recent years. It became an acolyte of the corrupt and lawless. The Constitutional Court was unabashedly biased in favour of the executive and the ruling party cadres in its judgments. The Constitutional Court went to the extent of disregarding well known and established legal principles and standards of legal reasoning expected of a competent court interpreting the supreme law. Examples include the decisions of the Constitutional Court to vacate the 2016 presidential election petition without hearing it; deliberately misinterpreting the Constitution in order to allow former President Edgar Lungu to run for a third term of office; the refusal to enforce the constitutional provision requiring public loans to be approved by Parliament; paving the way for desecration of the Constitution by allowing the Constitutional Amendment Bill No. 10 of 2019 to proceed; refusing to amend the presidential candidates’ affidavit to make clear the presidential two-term limits and condemnation of the petitioner, John Sangwa, to costs in the same case; approving the manifestly dubious and lawless removal of DPP Mutembo Nchito, and many other similarly bewildering cases.
In some instances, yet, the Constitutional Court simply ‘sat’ on the cases, rendering the ultimate outcome an exercise in futility. A great example is the case by Chapter One Foundation filed in August 2020 challenging, among other things, the legality of the decision of the Electoral Commission of Zambia to abolish the existing voter register and conducting voter registration within 38 days. Almost a year later, the Constitutional Court had not heard the matter.
Almost all the time, the Constitutional Court has disappointed the country when it was needed the most to check government actions and stall the then rapidly growing autocratisation. The judges of the Constitutional Court by their judgments, with the exception of a few dissenting opinions notably by Justice Margaret Munalula, were the negation of the values a judge should live by, as articulated by Lord Bingham: “strong character, powerful intellect, great learning, courage, wisdom, eloquence, [and] robust common sense.”
Although we firmly believe that the Constitutional Court should as a priority be abolished, we hold the view that reforms to the judiciary should not end there. There is need to overhaul the entire judiciary. Such an approach would help “fix” some of the many problems faced by the judiciary today, such as the appointment and promotion of questionable characters to higher judicial office. The judiciary is now staffed by many pliant judges appointed not for their competence, professionalism, or integrity but for narrow political reasons. We propose a new start, something akin to what was done in Kenya through the 2010 Constitution. This approach would initially require all judges and magistrates to undergo a mandatory vetting process and those who fail, based on their competence to hold judicial office, must vacate office. The vetting process should be credible and structured to accomplish two things: not only facilitating the removal of unsuitable judges because they damage the integrity of the entire judiciary and undermine public confidence in the judiciary; but also ensuring that the vetting process is not used to remove or penalise judges for making credible but unacceptable decisions to the executive or ruling party. This would be a necessary step in order to weed out incompetence, corruption and laziness, which is often manifest through inefficiency and poorly reasoned decisions. There is further need to abandon the current executive-driven secret process of recruiting and employing judges in favour of a public process where vacancies are advertised and candidates are interviewed openly. All this can be achieved through a well-tailored constitutional amendment.