Some countries have stopped appointing sitting judges to hot-potato political positions because of the fear of the violation of a centuries-old truism which simply reposes majestically: “Justice must not only be done, it must also be seen to be done.” These democratic countries instead appoint retired judges or other retired personalities of apparent integrity to handle high stakes political positions. After they have handled these volatile political missions, these personalities are never given judicial or other political positions where they stand the chance of being accused being biased towards the appointing authority.
It does not matter whether the accusations hold water or these individuals have pure hearts as the Virgin Mary or similarly angelic entities, the adage of “Justice must not only be done, but it must also be seen to be done” imports the important reality of perception. Perception is as real as reality and perception of corruption is as corrosive to the body politic as real corruption itself. It engenders mistrust, misconduct and actual corruption. People act both on the reality they experience and that which they perceive.
The repositioning by President Lungu at this early stage in his presidency of Chief Justice Irene Mambilima from her high voltage position as Chairperson of the Electoral Commission of Zambia (ECZ) where she was wrongly or rightly accused of bias towards the governing party, so far without evidence of any wrong doing, to the highest and most potent of legal and political positions of Chief Justice of Zambia in one breath, raises the spectre of the essence of the old adage.
What if she was promised the coveted position predicated on her swinging the election results one way or the other?
There are one or two concerns for that. First, and this hinges on the appointing authority himself, it is the nature of the just-ended presidential by-election in Zambia. The January 20th, 2015 election was the most closely contested election ever held in the history of Zambia – 807,925 votes for President Edgar Lungu of PF and 780,168 votes for Hakainde Hichilema of the UPND. With the difference of just over 27,000 votes, the election results would have gone either way. It raises the issue of legitimacy after the fact. If the disparity was gigantic, perhaps, the issue would be minimized. The urgency under which the president appointed the Chief Justice (subject to ratification by Parliament), who was the determining factor and guardian of the just over 27,000 votes which determined who the president would be, may nurture forbidden inferences. Some may wonder: What if she was promised the coveted position predicated on her swinging the election results one way or the other? Or, what if the appointment is expediently engineered in order to prevent would be petitioners from making head ways on this issue? These, of course, are only speculations, but in the framework of legal correctness, they raise fundamental questions germane to the discussions of corruption in Zambia.
Second, it is the issue of Chief Justice Mambilima being perceived to be impartial in future presidential elections should the results be judicially challenged, for example. This is a serious thinking person’s food for thought in a democracy. This thinking isn’t for the faint of heart. This thinking isn’t amenable to reflexive knee -jerk reaction. Insults don’t answer questions.
The ghosts of this most powerful phrase (“Justice must not only be done, it must also be seen to be done”) in the annals of justice could lie dormant for years and generations, but it’s spirit could rise again and again and again. The reign of the former Acting Chief Justice Lombe Chibesakunda was partly marked by controversy because of this very perception that something was wrong or untoward in her appointment even though she herself may have been upright. The controversy was fuelled by some perceptions. Perceptions are real. The Law Association of Zambia (LAZ) went to court to challenge her continued stay, albeit, she had reached retirement age. It is ironic that the same LAZ has now applauded President Lungu’s appointment of Justice Mambilima as Chief Justice given the history.
Would the Judiciary of which she was the head actually be able to remove her? This is in reference to the unforeseeable (but probable) position that these elections (or similar-situated ones) were challenged in court and she was called upon to make judgment. There will be developed bad blood within the legal and judiciary system in Zambia. President Sata had really lobbed Machiavelli in the spokes of the justice quotient of Zambia whose ill effects may echo for generations. The Zambian judiciary is perceived rightly or wrongly as corrupt and the Chief Justiceship tenure of Madam Lombe Chibesakunda did not help, particularly because of the manner in which it was politically maintained. Some perceived the judicial results of some by-elections as payback time in the politics of political survival. Some of the consequences and legal and political implications of Chief Justice Chibesakunda’s tenure will not be known for generations, but surface they will.
Thus, it was not surprising that much jubilation was accorded Chief Justice Mambilima’s appointment because of the hiccups generated by Chief Justice Chibesakunda’s tenure. We knew Chief Justice Chibesakunda. We know Chief Justice Mambilima. Both are impeccable and moral ladies as individual human beings. The old adage, however, goes the extra distance. It probes into the perception of the people out there.
Again, how will Chief Justice Mambilima acquit herself after the next election, if the presidential results are challenged and she remains Chief Justice? How will some of the players perceive her? Again, it is not only the reality that counts here, it is also the perception. Will some people who will lose, not recast their suspicions to her appointment as Chief Justice so soon in fact after President Lungu had won the presidency and she was the chief at ECZ which ratified the narrow electoral victory of the appointing authority? And then think of the soon-coming 2016 presidential elections, would it not reasonably be foreseen that the PF are setting a stage for a win (whether it will be clear-cut or controversial)?
Admittedly, Chief Justice Mambilima was the substantive Deputy Chief Justice before President Sata played his legal gymnastics. Surely as reigning Deputy Chief Justice she deserves the position, but the context and timing of this appointment is injurious to the norms of fundamental justice, especially in reference to a much closed election under which the just appointed Chief Justice presided as chief election monitor! The full implications of this appointment may echo into the future for generations.
In most democratic countries that take the adage seriously, they would not have appointed a sitting judge to head the Electoral Commission and then immediately after winning an election, appoint this judge to be the Chief Justice of the country. But then again, paraphrasing Frank Sinatra’s famous song, Zambia has always done it its own way. 2016 is around the corner and then we will know whether Zambia’s ways of doing things have been the right ways. January 2015 to September 2016 promises Zambians the greatest political rides of their lives.
Co-authored by: Charles Mwewa and Dr. Munyonzwe Hamalengwa
Charles Mwewa is the author of Zambia: Struggles of My People and the two volume study of President Michael Sata entitled, King Cobra Has Struck and Allergic to Corruption. His latest book is Legal Aspects of Landlord and Tenant Law in Canada.
Dr. Munyonzwe Hamalengwa is the author of Class Struggles in Zambia and the Fall of Kenneth Kaunda as well as Thoughts Are Free: Prison Experience and Reflections on Law and Politics in General. His latest book is The Politics of Judicial Diversity.