By Chali Nondo
A “dununa” judgement: Lessons from a fraught constitution
The Constitutional Court in Zambia has finally given in to threats, intimidation and blackmail from the governing Patriotic Front (PF) cadres by stunningly dismissing an opposition presidential petition that challenged the declaration of the incumbent president Edgar Lungu and his running mate Inonge Wina as duly elected without hearing the main case. The petition was specifically filed by the opposition United Party for National Development (UPND) president Hakainde Hichilema and his running mate Geoffrey Bwalya Mwamba with intent to argue convincingly that they were robbed of their electoral victory by president Lungu and his running mate Wina in connivance with the discredited Electoral Commission of Zambia (ECZ).
The decision by the Constitutional Court to dismiss a petition that was rightly before it without attending to witnesses, evidence and submissions has shocked the world, the intellect and the entire legal fraternity. Initially I had restrained myself from commenting on this matter because I did not want to be seen to be undermining the court and later on be cited for contempt when the case was still active before the ConCourt. Besides, am obligated to respect the laws of every country no matter how small or big a nation-state might be. However, after the passing of the controversial judgement, I was sick to my stomach and was at pains to understand what the hell was going on in the chambers. When I shared this story with my learned colleagues from this civilised world, no one took me serious until I showed them an excerpt of a news item pulled from the internet – of course not from compromised Daily Mail, Times of Zambia or ZNBC. I had to search for credible online news sources. Upon reading the story, their eyes rolled in disbelief and I realised that I got myself into a hot furnace. A barrage of questions followed but I had no better answers to give other than stating that the nation is simply effecting the “dununa” philosophy.
That said, we are now confronted with the most shocking judgement that has unsettled the justice system and potentially casting aspersions on the impartiality of the courts. We have a judgement that has been passed without hearing a case as no witnesses and submissions were considered. This is a circus and comedy of the century played out at the heart of our justice system. It was also clear right from the beginning that the ConCourt was a failed project because the appointing procedure of judges was fraught with glaring irregularities – too obvious were designed to secure a favourable environment for the appointing master.
The current system of appointing judges does not meet the threshold required for attainment of an impartial and competent judiciary. Instead, it allows the republican president to handpick his stooges subject to ratification by a state controlled parliament. This is crazy. In my view, the current system is a serious flaw that threatens the independence of the judiciary in the sense that it technically gives the power to a sitting president to appoint his friends and stooges who will be answerable to him.
I have always been a critic of the current appointing procedure arising out of the many politically motivated tribulations I endured during my journalism practice in Zambia in the early 2000. I will not delve into this narration because it is not relevant to the scope of this discussion. That said, I did submit to the Mung’omba Constitution Commission that the power to appoint judges should rest with the judicial service commission. The republican president should play no part. The judicial service commission should set up a screening committee comprising lawyers, judges, government officials and members of the public particularly from the civil society that are in good standing to meticulously assess all candidates applying to become judges. In particular, the Law Association of Zambia (LAZ) should be extensively involved throughout the screening procedure. The screening committee should submit a list of names of those considered qualified for the job back to the judicial service commission for recommendation and send the list to parliament for ratification. I would have proposed that before the list of names of those considered qualified is taken to parliament, it should be submitted to the ministry of justice for a further scrutiny and final recommendation. However, our current government institutions are subject of incompetence, excessive red-tape and political interference that would potentially render the procedure flawed. I further proposed that individuals wishing to be appointed as judges should demonstrate exemplary behaviour and in a manner that is devoid of criticism to their past service. They should not have any business or special interest in private enterprise or associated with partisan politics. Anyone who has previously filed for bankruptcy and is owing in taxes should also be screened out.
None of my recommendations were taken into consideration in the final Mung’omba draft constitution. The end result is the mess we are currently witnessing from the ConCourt where a panel of judges that were handpicked by president Lungu have created one of the country’s worst constitutional crisis in history which will take years to heal. The ConCourt in its current state is weak, incompetent and compromised to be relied upon. It would be anyone’s waste of time and resources to seek justice from the ConCourt in its current composition.
The ConCourt’s conduct in the presidential petition has raised troubling questions regarding its credibility, impartiality and readiness to do the job. For instance, the court failed to provide guidance on president Lungu’s continued stay in office in accordance with article 103 of the amended constitution. The court remained tongue-tied when overzealous PF cadres and officials conducted themselves in such a way to obstruct the delivery of justice. PF cadres openly humiliated and threatened judges yet no one was summoned to face contempt charges. I would imagine what would have happened if it were opposition cadres. It was also surprising that the judges entertained all the applications filed by the respondents’ lawyers resulting in numerous adjournments whilst all the preliminary applications submitted by the petitioners’ lawyers were shot down. The court shifted the blame to the opposition for the lapse of time without hinting on the delaying tactics by the respondents’ lawyers. Wouldn’t it have been fair for the court to compensate the petitioners lost time caused by the respondents’ lawyers? The rules of natural justice demand that everyone should be heard in a court of law. However, what happened in this case is a reminiscent of show trials that were a common feature during the NAZI Germany and Saddam Hussein’s authoritarian rule.
Previously the ConCourt excited members of the public when it ruled that president Lungu acted outside the law to keep ministers in office after dissolution of parliament and further recommended that they should refund the public treasury any money accrued to them in the past three months in terms of salaries and allowances. This judgement was insignificant with no impact whatsoever because it was conveniently delivered three days before the national polls after the public resources had already been spent on the PF campaign. Besides, the judgement itself did not set out the enforcement mechanism as: who will enforce it? How much do they owe? And what is the payment plan?
I therefore recommend that the ConCourt should be disbanded and reorganised with a new set of terms of references. On the other hand, let us heed Brigadier General Miyanda’s observed counsel regarding our newly amended constitution. In my view, the amended constitution should be withdrawn and taken back to the experts for fixing. The constitution in its current form is horrible and recipe for disaster. Lawyers and judges are even finding it hard to interpret the contents of the amended constitution.
To summarise my article, the “dununa” philosophy of the governing PF has successfully reversed all the democratic gains that were made in 20 years reign of the Movement for Multi-party Democracy (MMD). PF in government has weakened and compromised all public and private institutions. It has clamped down on media freedoms by dramatically shutting down privately owned media organisations and heightened censorship at public media institutions. Any voice that challenges the “dununa” government is silenced in an instant. The “dununa” philosophy has ostensibly evolved into a tyranny and a perfect replica of Uganda’s Yoweri Museveni and Edgar’s god father, Robert Mugabe. On this theory, Lungu’s government has lost its legitimacy to govern and should therefore stand down.
Authored by Chali Nondo
Communications Strategist and International Development affairs analyst.
Formerly Journalist in Lusaka, Zambia (1998 – 2004)