By Dr. Munyonzwe Hamalengwa
If there is any institution in the world that needs no protection from anybody, it is the judiciary. All it needs are men and women of steely character who speak through well reasoned and crafted judgments that are free from bias, incompetence but based on evidence.
Thus my thesis is that in the end everything boils down to the character of men and women who are stirring the ship of justice during moments of crises and criticism of judicial judgments. This has all been written and discussed before over the centuries and across the world.
In Zambia Justice Ernest Sakala as he then was called, spelt it out in his compelling Master of Laws (LLM) Dissertation entitled, “Autonomy and Independence of the Judiciary in Zambia: Realities and Challenges” (2000), that “the greatest challenge now is the quality of those who sit in judgment” for “individual judges are the main actors in ensuring judicial independence” (p.314). Whether or not you agree with this statement, you cannot avoid contending with it in a principled way.
Justice Sakala reveals what should be the guiding principle in the current crises and criticisms of the judiciary in the handling of the Savenda versus Stanbic or the Presidential Petition case or any other cases when he states that, “it is not necessarily important that the public agrees with all judicial judgments. In fact, if judges are truly independent, they will often be required to announce unpopular judgments either in favour of the rights of individuals (or country) or in favour of the executive. What is of importance is that the judgments be well reasoned and expressed so that they are respected and acceptable not only to lawyers but also to the losing litigants”. (P.316).
Sometimes the Judiciary suffers from self-inflicted wounds. Take the Savenda case for example. Stanbic acknowledged that their system did not capture the instalments paid by Savenda and promised to correct that oversight but never did. It was on that basis that the High Court Trial Judge found in favour of Savenda. One can quarrel with the amounts awarded but not the reasoning. But that important fact disappeared in the Supreme Court of Zambia analysis. And analysts were expected to be silent on this!
Take also the Presidential Election Petition Case. The Constitutional Court flip-flopped like a yoyo and ignored the Mazoka precedent on terminating a Presidential Petition already in progress and never took into account the “purposive interpretation” of the constitution doctrine prevalent all over the world that you don’t terminate an important constitutional case on a technicality! In this case, the Court was not even sitting during the weekend. And the discerning public ought not to be outraged about this!
Take also the case of the Ministers staying in power during the dissolution of parliament. The law is so clear one wonders why the injunction was not granted in May 2016 and waiting until two days before the election when irraparable damage had already been done. And now one wonders why the Court is still entertaining that case two years later instead of throwing it out with costs. And ordering the Ministers to pay with interest. Cases must terminate one way or another immediately in the apex court regardless of the result. And people should not be expected to question the motives propelling such drawn out litigations and the caliber of the Judiciary entertaining these shenanigans!
This of course does not mean that the critics are always right with the exception of the judiciary self-inflicted wounds noted above and many others. Blind criticism of the judiciary abounds. Justice Sakala identified one of the perennial problems in Zambia. “The problem does not seem to lie with the judges but with the politicians and the public who rush to criticize and demonstrate against judgments without knowing the full facts, their knowledge of the facts of the cases being based on newspaper reports only”. (Pp. 316-317). These days judgments are denounced before they are written or the case is argued. Threatening gatherings abound on the grounds of the court premises. Newspapers fabricate stories and attack the judges and some litigants without even attending court. Some judges are accused of being in bed with some politicians. But the cure is not in banning analysis and criticism.
Transparency is the greatest disinfectant against corruption and the hidden agenda of biased newspapers, reporters, politicians, critics, judges, as well as bloggers. For example, the petition proceedings should have been covered and broadcast reel to reel by the tax-payer funded Zambia National Broadcasting Corporation (ZNBC) so that the watching public could not be misled about the evidence and the goings on in court. ZNBC covered the Presidential launches and speeches across the country. Why couldn’t they cover this most important aspect of the continuation of the democratic experiment?
Great judges have shepherded the ship of justice during transitional times of crises. John Marshall, the first Chief Justice of the United States forced the state to abide by what they wrote in the constitution that the judicial branch was a co-equal to the executive and legislature and that the judicial branch shall not be intimidated. In the Marbury versus Madison case, the concept of judicial review of state/government action was born asserting judicial independence and autonomy equivalenting the three branches of government. John Marshall asserted that if the government was to kill the court, the court must as well die with a bang and not with a whimper. The court did not die. To this day the US Supreme Court despite its occasional lapses jealously superintends over the constitution of the United States and no one is above the law. Not even the president. A president who breaks the constitution is impeachable in a democracy like the one in the United States.
It goes the same for the Canadian Supreme Court. When there was a transition to a new constitution in 1982, one of Canada’s greatest Chief Justices, Brian Dickson embarked on designing a solid bedrock of constitutional infrastructure including the “purposive interpretation of the constitution” framework of analysis that is now quoted around the world. Every body has heard the biblical saying that a house built on sand does what? A house built on rock does what? The first cases based on a new constitution by a new court must start with a bang and therefore solid foundation and lay the framework for the future.
The new Constitutional Court in South Africa after the shame of apartheid started with a bang. The first few cases were seminal under Chief Justice Ismael Mohamed who even ruled against President Mandela and Mandela graciously accepted the judicial defeat and moved on. That solid foundation continues to serve the South African people very well including the rulings against former President Zuma based on the law and evidence and not pandering to political or corruption sentiments of the unschooled.
If the men and women of the Judiciary are worthy of their character and deliver judgments based on the law, no criticism or crises will lower the reputation of the judges and the judicial institution. It will be much ado about nothing.
Dr. Munyonzwe Hamalengwa is a Senior Lecturer in law at Zambian Open University and is the author of The Politics of Judicial Diversity and Transformation 2012) and other books.