By Prof. Michelo Hansungule
The so-called ‘historical judgment’ (according to PF Secretary General Davies Mwila) by the Constitutional Court of Zambia is unconstitutional, illegal both in domestic and international law, irrational and quite simply absurd.
This judgment constitutes blatant violation of the constitution. Quite frankly,all the judges that appended their signatures to this evil and dreadful decision must as a minimum vacate office forthwithto take responsibility. If they cannot on their own volition do so, then we should forcibly remove them from office as a national duty and ensure they account for this heinous crime against democracy. The remedy for violating the constitution is treason and I cannot think of any better sanction than this.
To recapture, the issue of the two–term limit was a result of protracted political demands country-wide by Zambian people and no one let alone Edgar Lungu or his cohorts in the Constitutional Court can rob Zambians of this democratic milestone. Just to make it clear, this is time for us to die in defence of democracy. Zambians must rise up in their numbers and defend their hard won democracy by whatever means possible against Edgar Lungu’s naked dictatorship and if it has not yet started, the battle begins now.
In 2001, when Edgar Lungu was nowhere in the political space, we buried dictatorship and sent Kaunda parking. Once in State House, late Frederick Chiluba developed the same appetite he was fighting against at Garden House and tried to overthrow democracy but once again, people power stopped him right in his tracks. Now, who the hell is Edgar Lungu? It is time we Zambians remove him from office for violating the constitution.
In the Commonwealth jurisdictions including Zambia, judges are expected to be independent but certainly not of the constitution and the law. Judicial power vested in courts to interpret the constitution and apply the law certainly does not include usurping people power to write their constitution. This is a political, not a judicial function. No judge can dictate a constitution or what it should or should not be to the people. This is a sovereign power only due to the people.
And the Zambian constitution is clear on the point. Paragraph one of the constitution opens with the terse words ‘We the people of Zambia’, followed in paragraph four with a commitment to adhere to democracy and good governance. ‘We the people’ indicates that people sit above everyone else certainly above the State institutions the constitution itself establishes. This is consistent with the Supreme Court decision expressed in the Zambian Democratic Congress versus Attorney General of 2002 in which the Court held:
(i) The Constitution of Zambia itself gives parliament powers to make laws. Parliament cannot be equated to an inferior tribunal or body when it is exercising its legislative powers, although in appropriate cases, actions but not by judicial review, can be commenced against it.
Besides committing the people towards democracy, the constitution goes on to ‘direct that all State organs and State institutions abide by and respect our sovereign will’. This explicit reference to ‘State organs and State institutions’ which are also bound to respect ‘Sovereign will’ includes the Constitutional Court. The word ‘Sovereign will’ refers to the will of the people to exercise their exclusive power to write their own constitution to govern them and people cannot concede this to the State institutions or State organs which are its creatures.
But before I go into details about the content of the judgment, a few anecdotes about this hugely irresponsible unconstitutional and unlawful decision are called for. First, let me say something about the applicants and their right of standing to launch this application. No doubt every Zambian has a right to approach the courts of law and seek their intervention in their personal or other situation. However, some actions smack of hypocrisy to the extreme. Would the applicants in this matter be said to be truly aggrieved about the presidential term limit? Were they acting in their own right when they brought the case and what exactly did they want from the court? Who are these people in the Zambian political space? Granted they are opposition but how are they perceived by the generality of Zambians? Are they truly opposition or only to the extent of that word?
During the now deposed long period of president Robert Mugabe of Zimbabwe, we saw such kinds of ridiculous comedies wherein Mugabe would send proxies to court like one Jealous Mawarire (Judgment No. CCZ 1/13 Const. Application No. 146/2013 JEALOUSY MBIZVO MAWARIRE)
In this case, Mugabe, confronted by SADC to postpone the elections to allow room for further negotiations with the late Morgan Tsvangirai’s MDC, quickly dispatched poor Jealousy Mawarire to court to ‘sue’ him (Mugabe) for trying to delay the elections as by constitution provided. Of course, the equally Mugabe friendly Court quickly ‘ordered’ Mugabe to stick to the constitution time table, ignore SADC and proceed to hold the elections as by law. It later transpired that Jealousy was not a genuine litigant but a young man working for the intelligence.
Current president Mnangagwa while he was minister of justice did the same in Zibani v JSC & Others (HH 797/16 HC 12441/16)  ZWHHC 797 (12 December 2016). Because he (Mnangagwa) did not want the Zimbabwe Judicial Services Commission (JSC) to have the power as provided in the historic 2013 constitution to decide on the appointment of the country’s Chief Justice and not the president which he wanted, he too sent someone this time a law student Zibani to seize court and ask the judge whether it was constitutional for JSC which includes the Chief Justice to have the power to decide on chief justice appointment? Particularly instructive in this case is that the court file was conveniently allocated to a ‘friendly judge’ and not allocated according to registry roaster. Of course the judge easily decided that the JSC had no such powers because it was conflicted in that some of the applicants for the position are also JSC members and the Chief Justice is such a high office it needed the decision of the president in his absolute discretion to reflect its prestige. Of course it was later overruled by the Supreme Court on appeal which restated the supremacy of the constitution. Some would argue today that Emmerson Mnangagwa in taking the steps he did was not just acting on his ministerial powers but looking ahead to the day when he would be president which he now is.
In 2016, our troubled neighbours, Joseph Kabila’s Democratic Republic of the Congo (DRC) had the same experience as in Zimbabwe, and now Zambia. More than eighty members of parliament of Kabila’s ruling party (mark this not opposition) seized the constitutional court to ‘seek’ an interpretation of the legality of extending Kabila’s mandate beyond the constitutional limit given thechallenges by the DRC electoral Commission to mobilise funds to hold the elections within the constitutional time lines? The court, which was(still is) just Kabila’s office, after ‘listening’ to the electoral commission confirming it had no money to hold the election, validated Kabila’s illegal grip on power beyond the constitutional mandate.
Against this background, we are here faced with our case in the constitutional court. Make your own conclusion given this context about why Africa is what it is? Every time a dictator comes to the fore, there are Africans and institutions willing to kowtow to the leader simply for the benefit of their stomachs. When is Africa, the real Africa predicted by the Kwame Nkrumah’s, the Julius Nyerere’s and the Kenneth Kaunda’s going to arise, or will it just remain a pipe dream?
Like my other compatriots have observed before, the issue of the presidential term limit in Zambia was settled with the 2016 constitution. This matter was decided democratically and not in a court of law because the issues are not legal but political. A court of law which is created by the constitution cannot dictate what the constitution should read like? More so in terms of article 106 which is so eloquent it does not call for judicial interpretation. In any case, in terms of the rules of interpretation, a constitutional provision cannot be interpreted in isolation but in relation with other provisions.
Further and perhaps more serious, some of the judges on the Constitutional Court that decided this case are obviously conflicted. There are many such judges on that court but let me just mention two to illustrate the point. Judge president Hilda Chibomba and Judge Professor Margaret Munalula were classmates of president Edgar Lungu at the school of law of the University of Zambia in 1977 to 1981. Clearly Edgar Lungu, now the president, appointed the two to the position of judge of this court for a purpose and this case appears to illustrate this – scratch my back and I scratch yours. As a minimum and in keeping with the ancient principle which dictates that justice must not only be done but must be seen to be done, the two should at the very least have declared their relationship with Edgar Lungu before proceeding to sit on the case, which they did not do, a serious breach of the law.
Even better given this they are conflicted, the two should have recused themselves and declined to sit on the case because whichever way, the outcome would benefit the incumbent not just their classmate but the one who rewarded them with the current positions. To the extent they did not but went ahead to sit and to be part of the decision which directly benefits the incumbent president, their class mate, the decision is seriously faulted.
Writing on ‘Corrupt Justice’ in the US justice system in October 2015, peter S, Green and John Mazor asked a critical question ‘what happens when a judges’ bias taints the case? In this paper, the two authors quite accurately observed:
Judges in local, state and federal courts across the country routinely hide their connections to litigants and their lawyers. These links can be social – they may have been law school classmates or share common friends – political, financial or ideological. In some instances the two may have mutual investment interests. They might be in-laws. Occasionally they are literally in bed together. While it’s unavoidable that such relationships will occur, when they do create a perception of bias, a judge is duty-bound to at the very least disclose that information, and if it is creates an actual bias, allow a different judge to take over.
All too often, however, the conflicted jurist says nothing and proceeds to rule in favor of the connected party, while the loser goes off without realizing an undisclosed bias doomed her case. ;
Sadly, precisely this is the situation in this case. We have judges who failed to at least disclosed their connection with Edgar Lungu the beneficiary of their erstwhile ruling while pretending to be judges. This alone faults the outcome of the judicial process and renders the decision illegal.
Second, as alluded to above, the constitution is based on the principle of separation of powers. Elias Chipimo has already canvassed this point. Our system of governance is built on the idea that the three arms of government will operate separately from each other and not seek for one arm to step on another’s toes. In South Africa, courts try to refrain from what has become known as ‘judicial overreach’ i.e. the temptation for judges to usurp the functions of the other arms in this case the legislature or elected officials to legislate by issuing binding recommendations to the legislature such as to legislate or repeal laws found to be offensive. Point, however, is that they try not to take the jurisdiction of another arm. Since Frenchman Montesque’s famous dictum, democracies try to identify themselves as such by observing the principle of separation of powers as sine qua non for democracy. And in a jurisdiction with a written constitution, like in Zambia, violating this principle calls for the harshest punishment against the violator in order to vindicate the principle that the constitution is sacred.
On the issue of presidential term limit, article 106 (3) is too clear to call for the kind of weird interpretation the Constitutional Court came up with. It says:
(3) A person who has twice held office as President is not eligible for election as President.
Of course in keeping with the principle of constitutional interpretation this sub article should be read in conjunction with other relevant provision, in particular, paragraph one of this article which reads:
. (1) The term of office for a President is five years which shall run concurrently with the term of Parliament, except that the term of office of President shall expire when the President-elect assumes office in accordance with Article 105.
These provisions are not new, they go back to the post one party 1991 constitution which in article 35 provided:
Subject to clause (2) and (4) every President shall hold office for a period of five years. •
Head of state term length 2. Notwithstanding anything to the contrary contained in this Constitution or any other Law no person who has twice been elected as President shall be eligible for re-election to that office.
Again, the issue is whoever has ‘twice been elected as President’ has their eligibility for re-election to that office permanently exhausted. Only slight change between the 1991 and the 2016 constitution is that now emphasis on barring prescribed persons to go for re-election has changed. In the 1991 and subsequently the 1996 constitutions, emphasis was on ‘twice been elected as President’ while in the 2016 constitution, it has shifted to ‘twice held office as President’, but in both cases, such person is categorically forbidden to ever seek office as president once they have exhausted that condition. It is so simple, after the current term, Edgar Lunguwill ‘twice have held office’ which is the condition for barring him to seek re-election to the office of president. Right now, he is holding office (illegally of course) for the second time having held it immediately after the election which preceded late president Michael Sata’s death which makes him ‘twice holding office’ making him ineligible to re-contest the office of president at the expiry of this term.
Not only does it violate the constitution, the so-calledjudgment brazenly infringes against international law applicable to Zambia. Zambia is party to the 2007 African Charter on Elections, Democracy and Governance which it signed in 2010, ratified in May 2011 and formally deposited the instrument of ratification with the African Union on 8 July 2011.
Relevant parts of Article 23 of this treaty provide that
State Parties agree that the use of, inter alia, the following illegal means of accessing or maintaining power constitute an unconstitutional change ofgovernment and shall draw appropriate sanctions by the Union:
(4) Any amendment or revision of the constitution or legal instruments, which is an infringement on the principles of democratic change of government.
By this judgment, Edgar Lungu is signalling that he intends to unconstitutionally maintain power against the letter and spirit of this treaty. The judgment infringes on the principles of democratic change of government constructed in the 2016 constitution. Quite clearly, this judgment sets the country on a collision course with the African Union’s sanctions regime, something that is completely unnecessary.
By this decision, Constitutional Court judges are openly demonstrating their affiliation to the ruling PF. It is a sad day for Zambia that instead of being just neutral arbiters of justice, judges openly demonstrate political party affiliation. Henceforth, every Zambian has a duty to treaty these judges as PF political cadres and no more. This coincidentally is why PF Secretary General Davies Mwila was so quick to praise them and to describe their judgment ‘historical’ because by their judgment, they confirmed their party membership. Because this is inconsistent with being judge, the so-called judges – all of them – must forthwith vacate office as such.