By Muna Ndulo
Professor of Law, Cornell University Law School.
It is quite obvious that there is political crisis in Zambia and the country is rapidly descending into a failed state. There is violence everywhere and a breakdown of law and order is evident. Courts are openly being intimidated by politicians, party cadres and Sycophants masquerading as civil society.
The former Secretary-General of the UN Boutros Boutros Ghali , described a failed state as “a feature of such societies is the collapse of state institutions, especially the police and the judiciary, with resulting paralysis of governance, a breakdown of law and order, and general banditry and chaos.”
It is beyond dispute that to sustain a democracy in the modern world, an independent, impartial and upright judiciary is an absolute necessity. Therefore, the constitution, laws and policies of a country must ensure that the justice system is truly independent from other branches of the state. As Sandra Day O’Connor observed
: “judicial independence is the vital mechanism that empowers judges to make decisions that may be unpopular but none the less correct.” In so doing, the judiciary vindicates the principle that no person, or group, however powerful, is above the law. And it gives life to the promise that the rule of law safeguards the minority from the tyranny of the majority. Justice Krigler in the South African Constitutional Court Judgement, S. V. Mamabolo, similarly observed: “In our constitutional order the judiciary is an independent pillar of the state, constitutionally mandated to exercise the judicial authority of the state fearlessly and impartially under the doctrine of the separation of powers. It stands on an equal footing with the executive and legislature as pillars of the state.” Yet independence comes at a price. In Zambia it is quite evident that in the election petition, the Constitutional Court has come under tremendous pressure and attack by forces that are orchestrated to prevent a hearing of the petition to take place. There appears to be a morbid fear of the evidence to be submitted coming to the surface and hence the strenuous efforts being made to prevent a hearing of the petition. In spite of such challenges the judges must recognize that they are duty bound to provide society with the highest possible standards of service and commitment, and that a failure to maintain this is a betrayal of the judicial oath of office. Independence does not mean that judges can decide cases according to their personal preferences. To the contrary, judges have a right and duty to decide cases before them according to the law, free from fear of reprisals of any kind. The Universal Declaration of Human Rights in article 9 recognizes that: “everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charges against him.” In a credible judicial process, the petitioners and the defendants must be given reasonable time to present their cases. The court must be alive to the danger that the defendants might employ delay tactics by unnecessarily objecting to motions to prevent a hearing only to turn around to claim that time has run out.
The Friday September 2 decision of the full bench of the Constitutional Court to give each side two days to present their case is correct in law and in fact. The earlier decision by Judge Sitali was impracticable and unreasonable. Besides Judge Sitali made two conflicting decisions. In the absence of the presentation of the case to the Constitutional Court what was the Constitutional court going to decide on? It would shock constitutional lawyers around the world into disbelief to learn that a Constitutional Court in Zambia, after refusing to hear evidenced, turned around and gave what at best would be a technical reason for dismissing a case before it. That is not law no matter how you look at it. The principles of natural justice, and constitutional principles the world over require that parties be given ample time to be heard. Various Zambia Constitutional provisions guarantee a right to be heard in a judicial proceeding. In any event Article 10 of the Constitution that talks of 14 days is not a model in drafting. It says: ”the electoral petition shall be heard in 14 days.” Judicial proceedings involve hearing and determining. The article, by not mentioning determining renders itself to numerous interpretations. Human rights courts the world over have stated that the rights of individuals in the constitution are intended to guarantee rights that are not theoretical or illusory, but practical and effective. The courts the world over where human rights are involved chose an interpretation that provides more extensive protections of individuals. In this case, they would chose, one that gives both sides an opportunity to be heard. Where all parties are given an opportunity to be heard, it becomes easier for all concerned to accept a decision of the court.