Professor Muna Ndulo on Judicial independence and Supreme Court’s decision in matter of three judges

By Muna Ndulo

(Professor of Law, Cornell University Law School)

 Until the recent Zambian Supreme Court decision in the matter of the Attorney General vs. Mutuna and Others, I, along with many others, had believed that African judiciaries had emerged from the period of powerlessness and marginalization at the hands of strong men or as Kenyans preferred to call them “imperial presidents.”   The period of the “imperial presidents” saw African judiciaries serving primarily as instruments of legitimization of executive actions.   Constitutional lawyers referred to the jurisprudential doctrine that emerged as the doctrine of “executive supremacy.”  This doctrine regards the “state” (personified in an omnipotent Chief Executive) not the constitution as the source judicially speaking, of all “rights” and “freedoms”. The state is thus subject to only such restraint as it chooses to place upon itself, while the citizen has only such rights as the state may allow.  In short, as Prempheh (1999) has observed under this jurisprudence, the state walks into the court house with an almost irrefutable presumption of lawfulness as to its conduct.

In a recent article entitled With Forked Tongues: Why Chibesakunda’s Majority Ruling in Attorney-General v. Mutuna & Others is Flawed, Elias Munshya wa Munshya ably shows us the fallacy of the arguments advanced by the majority on the rules of interpretation of constitutional texts and the relationship between Articles 91 and 98 of the Zambian Constitution.  He also does a suitable job of exposing the numerous contradictions within the opinion.

What I would like to do is argue that the doctrine of “executive supremacy” which the Zambian Supreme Court seems to want to return the country to has no place in a constitutional democracy.  Additionally, I would like to support the view that in most constitutional democracies the approach to constitutional interpretation is purposeful interpretation and not literal meaning as the Supreme Court would have us believe.  Constitutional provisions must not be construed in isolation, but in the context of the objectives of the constitution. Our judges would do well to read the most recent case on this issue coming out of the South African Constitutional Court, the case of Democratic Alliance v. President of South Africa and Others (2012). The case is rich in analysis and provides extensive coverage of comparative law on constitutional interpretation. Earlier, the same court had stated in Investigating Directorate: Serious Economic Offences & Others v. Hyundai Motor Distributors (pty) Ltd that: “the Constitution requires that judicial officers read legislation, where possible, in ways which give effect to the fundamental values.”

The adoption of the doctrine of “executive supremacy” led the Zambian Supreme Court to exhibit in its judgment unbelievable and worrying excessive deference to the Executive.   As a result, alarming statements are made by the majority with the belief that the Executive is always right because the president knows best and has privileged information that is not available to ordinary people. How does a court determine that a president’s sources of information are impeccable without scrutiny?  Is the court telling us that it has a secret way of finding this out?  If it has is that legal and transparent? The level of groveling exhibited by the judges in this case would shock most constitutional lawyers and judges around the globe.  The trajectory of African transitions to democracy will remain a dream if African judges fail to make the transition from the jurisprudence of “executive supremacy” to constitutionalism. Lord Denning’s warning that when the state defends its actions by pleading national interest and privileged information it is the end of liberty and indeed constitutionalism is quite appropriate in this case.

A jurisprudence of constitutionalism differs in fundamental respects from a jurisprudence of “executive supremacy”.  It is premised on the supremacy of the constitution. The Zambian constitution for example states in Article 1 that: “The Constitution is the Supreme Law of Zambia and if any other law is inconsistent with this constitution, that other law shall, to the extent of the inconsistency, be void.”   Additionally, constitutionalism is premised upon the separation of powers of the three arms of the government (executive, legislative, and judiciary).  In Donoghue v. US (1356) the court stated that:

“it is important to separate the several departments of government and restrict them to the

exercise of their appointed powers, it follows, as a logical corollary, equally important, that each department should be kept completely independent of the others-independent not in the sense that

they shall not co-operate to the common end of carrying into effect the purposes of the constitution, but in the sense that the acts of each shall never be controlled by, or subject directly or indirectly, to the coercive influence of either of the other department.”


With respect to Parliament, the courts have the power, and indeed the duty to see to it that there is no infraction of the exercise of legislative powers, whether substantive or procedural, as laid down in the relevant provisions of the constitution. If such infraction exists, the courts must declare any legislation passed pursuant to it unconstitutional and invalid. The constitution is premised on the exercise by the judiciary of its power of judicial review which means that the judiciary must see to it that the other arms of the government act within the provisions of the constitution. It is the duty of the executive to give effect to all judgments given by the judiciary regardless of the executive’s view of the correctness of the judgments.  Where the executive is dissatisfied with the judgment of a lower court the proper and constitutional way is for the executive to exercise its rights of appeal.

The stability and wellbeing of all Zambians hinges upon respect for the rule of law which embodies the separation of powers. Fundamental to this is the realization that the independence of the judiciary must be unassailable. These are the hallmarks of all successful and lasting constitutional democracies. Such a state cannot be achieved without entrenched safeguards to ensure judicial independence, chief among which is proper standards preventing the arbitrary or baseless removal of judicial officers.  In order for the judiciary to perform its duties fearlessly and impartially, the constitution grants the judiciary independence from the other two arms of government.  Article 91 (2) states that: “the judges, magistrates and justices of the courts mentioned in clause (1) shall be independent, impartial and subject only to this constitution and the law and shall conduct themselves in accordance with a code of conduct promulgated by Parliament.”  Article 98 provides for ways to remove a judge from office.   It provides that a judge of the Supreme Court may be removed from office only for inability to perform the functions of his or her office, whether arising from infirmity of body or mind or for misbehavior, and shall not be so removed except in accordance with the provisions of this article.  The Article further provides  that if the President considers that the question of removing a judge of the Supreme Court or the High Court under this Article ought to be investigated, (a) he shall appoint a tribunal which shall consist of a Chairman and not less two other members who have held high judicial office; (b) the Tribunal shall inquire into the matter and report on the facts thereof to the President and advise the President whether the judge ought to be removed from office under this article for inability as foresaid or for misbehavior.

Articles 91 and 98 without a doubt are interconnected.  Article 91 provides the overall context within which provisions relating to the judiciary should be interpreted.  It underscores judicial independence. Article 98 cannot be interpreted in such a manner as to become the conduit of executive influence over the judiciary.  The removal of judges from the bench on spurious grounds is the greatest threat to judicial independence.  There is no assurity of a judge’s independence if he or she can easily be removed from office.  Where judges can easily be removed, it would require fearless men and women of the strongest will and moral fiber to do justice where the interest of the reigning political party is involved.  To safe guard the independence of the judiciary granted in Article 91, Article 98 provides that a judge can be removed on only two grounds: (1) inability to discharge the functions of office or (2) misconduct.

International standards applicable to the preservation of the independence of the judiciary place considerable emphasis against the improper removal of judges from office. They insist that a judge who faces removal must be examined by an independent and impartial tribunal, and that the grounds of removal must be limited to the two cases mentioned above. (Latimer House Guidelines for the Commonwealth).  The Judicial Code of Conduct Act states in the clearest of terms that it is to provide for the code of conduct for officers of the judicature pursuant to article 91 of the constitution.  The trial judge was right when she said that there was an interplay between articles 91(2) and the judicial Code of conduct on one hand and articles 98(2) (3) and (5) on the other. The idea of the Procedures set up under the Judicial (code of Conduct) Act of 1999 was to ensure that the process of removing judges established under article 98 does not compromise judicial independence, including security of tenure and undermine the right to due process.  It is to ensure that the President cannot, without the approval of the Chief Justice, initiate the process to remove a judge from office.  In this way, the judiciary overseas the removal process. The rationale of this approach is for the Chief Justice to advise the President only in circumstances where it is reasonable and justifiable for an investigation to be conducted.  Without this check, there would be no way to ensure that the President does not appoint a tribunal that he or she can manipulate to achieve a predetermined outcomeAdditionally, the Complaints procedures established under the Judicial Code of Conduct Act protect the judge’s due process rights by enabling the judge to defend himself or herself before a complaints hearing before a Tribunal is appointed.   The argument that Article 98 provides the president with unfettered power to check the judiciary as the majority opines is to say the least, unbelievable and completely undermines and offends the doctrine of the separation of powers. Further by construing article 98 as a standalone provision the court ignores the fact that there is a context to article 98.  Neither the constitution nor the Judicial Code of Conduct Act procedures could have contemplated that the position of the judges would be as vulnerable as the majority would want us to believe.  If the constitution had wanted to vest this power at the complete discretion of the President, the constitution could easily have used words to that effect.  The constitution does not say misconduct “in the opinion of the president.” It says, “If the president considers the question of removing a judge of the Supreme Court or of the High Court under this Article ought to be investigated.”  That means there has to be an objective criteria on which the question is based otherwise the President is acting arbitrarily.  It is correct to say that the determination of whether a judge is unfit for office or is guilty of misconduct stipulated in Article 98 involves a value judgment. But it does not follow from this that the decision and evaluation lies within the sole and subjective preserve of the president.  Value judgments are involved in virtually every decision any member of the Executive might make where objective requirements are stipulated.  It is also true that there may be differences of opinion in relation to whether or not objective criteria have been established or are present. This does not mean that the decision becomes one of subjective determination, immune from objective scrutiny.

The argument that the powers under Article 98 are investigative and not executive is disingenuous. Equity looks at substance rather than form.  What remedy can there be for a judge if the Tribunal recommends dismissal?  Should the judge wait until the Tribunal has concluded its work to institute judicial review of the President’s action to appoint a Tribunal?  It is a betrayal of the sacred duty of doing justice entrusted to judges if the judges take such an obviously naïve view of the law and declare executive action as exempt from scrutiny by the courts. Our courts must regard themselves as courts of justice, not merely courts of law—narrowly defined, especially where human freedom and dignity are concerned.  In the words of Andrew Jackson “All the rights secured to the citizens under the Constitution are worth nothing, and a mere bubble, except guaranteed to them by an independent and virtuous Judiciary.”

A judge should not, and cannot afford to just subject himself or herself to a mere mechanical application of the law but must feel called upon to higher duties. In any event, in this particular case, it was unnecessary to decide whether the decision by the president constituted investigative or administrative action because even in terms of the former, rationality is a requirement for the validity of executive action under the principle of legality. The Human Rights Committee has said that the principle of legality and the rule of law are inherent in the International Covenant for Civil and Political Rights (ICCPR). The Inter-American Court of Human Rights has also stressed that there exists an inseparable bond between the principle of legality, democratic institutions and the rule of law.

The majority opinion held that the appropriate way to interpret Article 98 was through the method of the “literal rule of interpretation.”  According to the majority, the literal rule requires the court to give the ordinary grammatical meaning to provisions in constitutional texts.  This approach is contrary to the view of courts elsewhere in the commonwealth and it is intellectually deficient and can lead to bizarre outcomes.  Does the majority suggest that our constitution does not subscribe to any values that it seeks to reflect and advance?  In any event, Article 91 and Article 98 need interpretation.   How for example do you reconcile the independence of the judiciary with an easy process of removal of judges from the bench?  How do you reconcile the doctrine of the separation of powers and removal of judges by a system entirely initiated and controlled by the executive without any opportunity for scrutiny?  Further, Article 98 states that a judge can be removed for “inability to discharge the functions of his office or for misconduct”. To an ordinary layman these may appear to be clear terms.  But far from being clear, they are in fact nebulous.  All these matters require reconciliation by the Supreme Court in ways that do not undermine the core purposes of the constitution.  In a constitution there are some provisions, for example amount of members of Parliament that because of the clear and unambiguous meaning of the text, render these clear-cut provisions to literal interpretation and do not therefore require the application of a sophisticated theory of constitutional interpretation in order to reach a sensible conclusion. On the other hand, there are provisions of the constitution where the text itself is so abstract or ambiguous that analysis of the text and sometimes the history, the structure, purpose, and intent of the relevant provision is absolutely necessary.

The purposeful approach to interpretation invites more active judicial intermediation and interpretation. In particular, it demands that judges interpreting a constitutional text not only consult the spirit of the law but also endeavor to harmonize the letter with the spirit. To do this, the judges must bring to their reasoning and decisions a clear understanding of the overarching values and philosophical foundations of a liberal democracy of the social, economic, and political evaluation of their country; and of the historical antecedents and contemporary purposes of the particular provision in dispute.  The Zambian constitution in its preamble provides the values which should be the context for constitutional interpretation.  It states; “The people of Zambia…, ..solemnly resolved to constitute Zambia into a sovereign democratic republic.” It further states: We pledge to ourselves that we shall ensure that the state shall respect the rights and dignity of the human family, uphold the laws of the state and conduct affairs of the state in such manner as to preserve, develop, and utilize its resources for this and future generations” and finally states that “we resolve to uphold the values of democracy, transparency, accountability and good governance.” The values of democracy, transparency, accountability and good governance are particularly relevant in the interpretation of article 91 and 98.

The existence of an independent and impartial judiciary is at the heart of Articles 91 and 98. The two articles attempt to ensure that the justice system is truly independent from other branches of the state.  Different organs of the state have exclusive and specific responsibilities.  By virtue of this separation, it is not permissible for any branch of power to interfere into the others’ sphere.  An interpretation of Article 98 that holds that the determination of whether or not to hold a tribunal is a matter for the president’s subjective opinion alone and cannot be questioned by any court of law is not in keeping with the constitution.  An interpretation that requires the existence of objective jurisdictional facts before the appointment of a Tribunal is more consistent and in keeping with the constitutional guarantee of the independence of the judiciary.

There is accordingly a constitutional guarantee of independence, and any legislation or executive action inconsistent therewith would be subject to constitutional control by the courts. As Udoma JSC rightly pointed out in the famous Nigerian case Nafiu Rabiu v The State (1980) “It is the duty of the courts to interpret the constitution liberally. The courts should not interpret any provision of the constitution so as to defeat the ends the constitution is designed to serve where another construction equally in accord and consistent with the words and spirit of such persons will serve to enforce and protect such ends.”   Articles 91 and 98 must be read together to determine the purpose for which the power was conferred.  It is evident that the purpose of the conferral of the power in article 98 was to ensure that judges are men and women of integrity without at the same time compromising the fundamental principle of the doctrine of separation of powers and independence of judges. In Findlay v. UN (1997) the European court of Human Rights held that “the irremovability of judges by the executive must in general be considered as a corollary of their independence”. From the perspective of their personal independence, it is crucial that the judges are not subordinated hierarchically to the executive or the legislature.   It is a fundamental requirement of judicial independence that judges at all levels should not be subordinate or accountable to other branches of government especially the executive. Judges are accountable to the constitution. As Kennedy explains: the bedrock of . . .  democracy is the rule of law and that means we have to have an independent judiciary, judges who can make decisions independent of the political winds that are blowing.


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