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Appointment of the Chief Justice: some lessons for Zambia

John Peter Sangwa, SC, continues to raise some very important legal and constitutional questions for Zambia to ponder and renovate and reform. One of the questions he has raised involve the method as well as the relationship to the President of the next Chief Justice. I will not summarise what Sangwa SC propounded as that is very well known and adequately covered by many others.

What I intend to do is to put in context the broader picture that mitigates against Sangwa SC’s concerns. The Chief Justice while a very important person in the judicial hierarchy could be consigned to a very lonely and dissenting voice without much impact on the trajectory of the court and judicial system. In other words, the Chief Justice, no matter what his relationship to the President is, may be much ado about nothing. Or it could be the deciding factor, which in fact it rarely is.

Let us start with some factors which determine the weight of the authority of the Chief Justice. Does he have flair for judicial independence or autonomy? How deep is his or her intellectual prowess? Is he or her a quack? Can his intellectual pedigree sway the rest to his decisional predilections? What is the intellectual calibre of the entire bench? Does the bench take its oath of office seriously? What is the character of the entire society in which the Chief Justice operates? Will he be run out of town if he exercises judicial independence and autonomy and decides according to the law? Are there strong lawyers and civil society organisations to defend the rule of law and the independence and autonomy of the judiciary or is the legal profession and civil society organisations a collection of spineless and opportunistic individuals?

The character of the judge himself is the most important, followed by the character of the judiciary as a whole and not the relationship between the appointing authority and the judge. Sometime in 1740 Judge Mansfield uttered the following words which we must ponder in respect of any Zambian judge and particularly the Chief Justice: “I will not do that which my conscience tells me is wrong, upon this occasion; to gain the huzzas of thousands, or the daily praise of all the papers which come from the press. I will not avoid doing that which I think is right; though it should draw on me the whole artillery of libels: all the falsehood and malice can invent, or the credulity of a deluded populace can swallow…. Once for all, let it be understood that no endeavours of this kind will influence any man who at present sits here”. Once we have a judge and Chief Justice of such sentiments, we need not worry about his relationship to the appointing authority. The question is, do we have such judges or prospective Chief Justice of such provenance? Given Zambia’s now proven democratic credentials, we do indeed can find such judges and prospective Chief Justice. Do we have a President who can respect, from his own words and behaviour, the autonomy and independence of the judiciary? I believe we do have such a person in the current President compared to the character who was just voted out.

In terms of the collective judiciary which is an amalgam of individual judicial characters, former Chief Justice Ernest Linesi Sakala states the following: “The problem seems to be that many times the judiciary has in reality not been assertive enough. As a result of the lack of adequate self-assertion, the executive, the legislature, and the public have not refrained from apparent direct or indirect interference and attacks on the judges….” Those who should be appointed must be of strong character and intellectual power to protect them from being malleable and be pushovers. Strong judges must be lawyers and later judges who must not show a character trait of being ever read for auditioning for promotion to use Justice Richard Posner’s word in his book: “How Judges Think”.

The fact that the President’s prior relationship with a judge or Chief Justice should not matter was demonstrated by the presidency of Nelson Mandela and his judicial appointments. Mandela appointed a stellar cast of Constitutional Court judges most of whom were proven anti-apartheid activists and who were his proven friends: Arthur Chaskalson, who was his lawyer in the Rivonia Trial of 1964; Pius Langa, who suffered imprisonment and bombings under apartheid, Moseneke who was imprisoned for 9 years under apartheid as a 12 year old boy etc. Chaskalson and Langa were later appointed as Chief Justices but they never gave Mandela any break just because they were friends and previous anti-apartheid legal activists. Mandela and the ANC government lost a lot of cases across the board because the judges appointed were of the Mansfield description and the judiciary was of the Sakala description – exercising judicial self-assertion.

And Mandela was a character out of this world who accepted judicial decisions no matter where they titled and he blamed these decisions on “judicial independence and autonomy and the rule of law”. I believe that the current President would also rise to the Mandela heights compared to his predecessor. The Mandela precedent is worth examining as it also provides a paradigm of how our constitution should be amended and transformed and how our judiciary, including the Chief Justice, should be appointed.

With three changes of government by three different political parties, Zambia is developing into a solid democracy. The judiciary now need not fear and must follow the Mansfield dictum.

Dr. Munyonzwe Hamalengwa is the Dean of Law at Zambian Open University School of Law but the views expressed here are his own. Dr. Hamalengwa is establishing a Global Centre for the Study of the Judiciary and the Legal Profession. He has just the 700 page book entitled, “Commentaries on the Laws of Zambia”(2021) and is the author of “The Politics of Judicial Diversity and Transformation: Canada, US, UK, Australia, South Africa, Israel, International Tribunal and Colonial and Post Colonial Countries” (589 pages, 2012). He can be reached at forthedefence@yahoo.ca

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