By Akalemwa Ngenda-Image is nothing. Or is it? A lot has been said and written about the political saga and legal drama surrounding the investigation into the conduct of Dora Siliya, then Minister of Communications and Transport, for alleged breach of the Parliamentary and Ministerial Code of Conduct Act.
The allegations arose from the award of a contract for the evaluation of the assets of ZAMTEL, cancellation of award of a contract for a Zambia Air Traffic Management Surveillance Radar System, and misappropriation of K12.5m at Petauke district council. A large proportion of the public has been left confused by the decision of the High Court to overturn the findings of the tribunal which was set up to inquire into these alleged breaches of the law.
Many people have wondered how a single judge of the High Court could overrule the decision of a panel of three judges two of whom are Supreme Court justices. For some, this whole episode just does not seem right, and for others, the very idea that Supreme Court judges were declared to be in error on a matter of law is quite simply inconceivable. Is it strange that the stark reality of the main lesson to be drawn from all this – which is that there is no monopoly of wisdom – does not sit comfortably with the public?
Unfortunately, in terms of public perception, this chapter of events seems to cast aspersions on the integrity of the judiciary. One could argue that this is yet another instance of politics putting the entire machinery of the legal process on trial in the court of public opinion. This, therefore, begs the question whether interpretation of laws is strictly a preserve of the judicature which should be oblivious to what happens in the court of public opinion. In other words, does it matter what the public thinks regardless of what the law says? The question could be answered affirmatively if one takes the view held by U.S. president Barack Obama that law is after all, by definition, a codification of people’s morality.
The tension between public opinion and the inner working of the legal system brings to mind the captivating message of that iconic Sprite campaign which proclaimed that “Image is Nothing”. While that advert may have sold tonnes of soda pop by convincing people to obey their thirst, its catchphrase would arguably make for a very hard sale against the background of a romanticised view of the legal system.
When it comes to public perception, image counts for something. One of the often quoted principles of natural justice evokes the notion that “not only must justice be done; it must also be seen to be done.” In other words, anything which creates even a slight suspicion or doubt over the administration of justice is to be avoided like the plague. In order for the courts to effectively administer justice, they need to dispense more than just fairness – they also need to present and preserve a particular image. That image is largely symbolised by the statue of Lady Justice in front of the High Court building holding balanced scales. It is the symbol of a judicial system which is intended, among other things, to be apolitical, rational and impartial, i.e. a sanctuary of justice and fair-mindedness.
However, as the English legal scholar Reginald Dias once observed, judges are not merely that blindfolded figure of justice impersonally brooding over a mechanical process, which we choose to equivocate with the ‘administration of justice’. This is a mirage that pleases because it inspires public confidence, which is why it is sedulously preserved.
The uncomfortable truth remains that judges are human beings too, and that the juridical processes are not bias-free zones. A judge’s interpretation of the law is liable to be incorrect. Otherwise, we would not have a self-correcting hierarchy of appeal(s) in the legal system. To borrow an expression from the movie Minority Report, for the system to function it must dispel any notion of fallibility because in truth no one wants a system of justice which raises doubt; it may only be reasonable, but it’s still doubt. Any sign of discord or dysfunction denudes the system of its symbolically vital public image and thereby erodes public confidence. Therein lays the difficulty presented by the decision of the High Court which partially overturned the tribunal led by Judge Chirwa. In the eyes of the public one puisne judge is no greater than or equal to two Supreme Court justices plus a High Court judge. While this equation is legally tenable, vis-a-vis jurisdiction of the High Court over administrative tribunals, it has not been perceived well by the public. For better or worse, the exercise of the powers of judicial office must comport with the tenets of democracy. To quote the American journalist and writer Henry Mencken, “democracy is the art of running the circus from the monkey cage”.
To be sure, this was not the first time that the findings of a tribunal led by a senior judge have been overturned by the High Court under judicial review proceedings. Legally speaking, there is nothing sinister or inappropriate with what the High Court did, although it is a contentious point of law for the judge to have ruled that Dora Siliya was “cleared by th[e] court under Article 54(3) of the constitution”. Having decided that the tribunal had no power to pronounce on the constitutional issue, it was unnecessary to consider whether abiding the Attorney General’s advice was mandatory.
This is regardless of whether the High Court’s interpretation of the constitution was correct. Under judicial review, the court is not called upon to substitute its own decision in place of that of the tribunal. The issue at stake was not one of reasonableness of the tribunal decision but rather the propriety of the proceedings in arriving at the decision. However, this is beside the point. The present point of discussion is that there is obviously a mismatch between public expectation and the function of the judiciary in our constitutional system of government. The law must inspire confidence in practice as well as theory. This is important in order to engender trust and respect for, among other things, the rule of law as a fundamental aspect of good governance. Clearly, the integrity and role of the judiciary in this process does not only rest on legal or constitutional legitimacy but also on the goodwill of the public.
It is ironic that the appointment of senior judges to sit on statutory or administrative tribunals which was meant to ensure universal respect for tribunal findings in the same manner that the law is venerated now happens to be a source of so much consternation. This statutory regime was meant to cultivate a democratic culture of checks and balances in government. In this regard, it was felt that the best way to ensure legislative and executive transparency and accountability was naturally through use of the machinery or expertise available within the judicial arm of government. The problem is how do you get ordinary people to have trust in legal processes, if no one wants to come to terms with what is generally considered by learned experts to be the best means suited for doing so.
Indeed, many commentators have opined that these are shaky times for constitutionalism in Zambia. If legal reform is not overdue under these circumstances, it may well be imperative.
The public sentiment is fine with judges reviewing the work and conduct government officials, but not so comfortable with those judges being subject to review. Whether that’s sad or really sad, the jury is still out because, in another twist of irony, one could not imagine a better example of the rule of law.
Be that as it may, changing the status quo presents a very real prospect of throwing away the baby with the bath water. Given that we are not dealing here with a fundamental flaw in our system of government, the solution may lie in tweaking rather than complete overhaul of the Parliamentary and Ministerial Code of Conduct Act.
Yes, sometimes image is everything. The original objectives and purposes of the law are relevant now more than ever in the continuing evolution of democracy in Zambia. As Mencken, once sharply put it, “the cure for the evils of democracy is more democracy”. The public anxiety over the recent parliamentary and ministerial code of conduct tribunal simply exemplifies a collective thirst for clarity, albeit of the kind which the judiciary alone can not provide. To use the soda pop advert which earlier was alluded to as a metaphor, this clarification is analogous to Pepsi; in which case image and thirst are not always mutually exclusive.
In the spirit of amandla awethu, this is one instance when the people can and must have their cake and eat it – and it would be imprudent not to give the people what they want. The point can not be made any more poignantly than by cannibalising the immortal lyrics of that munyaule nafuti tune. Yes indeed, when it comes to quenching one’s thirst, it’s advisable to go all the way. Some solutions are averse to half-measures.
The author is a Lecturer at Brunel Law School, Brunel University, West London, UK