By Professor Michelo Hansungule
What happened in our Constitutional Court earlier this week is spectacularly shocking. The three judges involved in this strange decision must personally be made accountable for what they did over the weekend and in Monday. In fact, PF handling of the presidential election petition since the petition started including refusal to have the necessary documents served on Edgar Lungu in his capacity as respondent has not only baffled many Zambians but friends of Zambians around the world.
How can a court, which in its Friday midnight decision unanimously decided to hear the petition on Monday and Tuesday, and respondents on Wednesday and Friday suddenly u-turn and instead announce that three of its members decided over the weekend to denounce the unanimous decision of the five member bench? This, to say the least, is unprecedented in the history of the Zambia. It has never happened and neither is it supported by law that judges who were part of a full bench can sit on a weekend without parties to the case and without some of their colleagues to change a decision they arrived at unanimously with their colleagues which decision was announced to the parties and as per practice to the rest of the world?
The only other case I remember where this happened is when now Chief Justice Chidyausiku of Zimbabwe, as acting judge of the High Court, sat on a Sunday to hear a complaint by parties who had lost their case against eviction from a farm land they had invaded. In that case, one of the evictees Murilo on behalf of his colleagues lodged an application before the High Court protesting the Supreme Court’s decision which decided in favour of the Zimbabwe Commercial Farmers Union seeking eviction of the land invaders from land of a Commercial Farmer’s Union member.
Acting High Court Justice Chidyausiku ‘overruled’ the Supreme Court and went ahead to set aside the apex Court’s unanimous judgment something which earned the ire of the Court and which was completely at odds with common law practice in the ommonwealth. But this is Zimbabwe and I for one never would have thought even in my widest of dreams that instead of teaching the death of the rule of law in Zimbabwe, a day will come when students of law will rather be using Zambia as an example of what Professor Muna Ndulo rightly calls a ‘failed state’. Needless to say immediately after this case, Chidyausiku was appointed Zimbabwe Chief Justice and the rest is history.
Though like many other Zambians I am shocked at the unprecedented development in Court today, somehow I could foresee it coming. I know Edgar Lungu personally unlike most of those who support and are ready to die for him. Just like my young brother HH, Edgar [is] or at least used to be my friend. I know for certain Edgar Lungu did not win the August 11 elections; he did not and he knows it himself. I have never doubted throughout that he will abuse all the state institutions including the CC to defy the will of the people and the rule of law in order to maintain power regardless.
Because he did not win he used the Electoral Commission to steal the vote. Because he knew what will come out if the petitioner was heard, he would not want the petitioner to be heard as guaranteed for him by the Constitution. If the petitioner had been heard, the result will have been exposed in the open for all to read, see and hear for themselves something which would have resulted in an immediate eviction of Edgar from the presidency he is already holding illegally. Therefore, Edgar made sure the case died in its track and this is what happened this morning in the CC. Had it proceeded, Petitioners were going to show Zambians how the vote particularly the Lusaka vote was blatantly rigged and Edgar knew petitioners had solid evidence with them to prove how this happened? They still have that evidence with them.
Clearly today’s CC developments constitute the Zambian Penal Code’s Section 112 obstruction and defeating the course of justice and must as a minimum immediately be investigated. Petitioner’s right to be heard was obstructed by no less an institution than the court itself, it can’t be. This must be investigated immediately by police to establish what happened and culprits taken to court. Only this will restore Zambia’s image now seriously damaged. Zambia police must quickly move in and institute investigations into apparently serious misadventure in court. It is not enough to refer the three judges concerned to the Judicial Complaints Authority which has no penal sanctions to enforce its recommendations/decisions. Besides, the morning’s developments are too serious to be referred to administration with only jurisdictions to recommend to the same authority who happens to be the beneficiary of the misadventure.
Meanwhile, the three judges who changed the unanimous decision over the weekend have no choice but to resign their positions immediately. Given this has never happened before and is quite unprecedented and even illegal for judges to sit on a weekend without parties or their colleagues and rescind a unanimously arrived at decision, they must take responsibility and resign.
That is the epitome of judicial irresponsibility! It is indecisive and a mockery of the court for it to ‘rescind’ it’s own decision without any of the parties making any such request and without giving parties a chance to make representations, and worse, without notice! It appears obvious that there was political interference and the split makes it even more suspicious. So on what basis did the three judges dismiss the petition if the parties didn’t even advance arguments? This is by far the most irresponsible way of handling an election petition on the continent. It will be hard for the court to regain its credibility after this disastrous precedent. I can’t even begin to contemplate the political consequences.
SADC and the African Union must quickly move in and suspend Zambia from their organs. What has happened in Zambia is not an election but clear unconstitutional change of government and the international community has an obligation to act to restore democracy and constitutional order. From the time Edgar Lungu refused to surrender power to the Speaker of Parliament in line with article 104 (3) of the Constitution, he seized power illegally against the wording of the constitution. Now, he has unilaterally barred the CC from hearing the petitioner in line with well-articulated principles insisting on an independent judiciary. All the instruments of the AU and the SADC as well as requisite UN instruments eloquently insist of a free and fair election including the right to complain.
Chief Justice Ireen Manbilima, her deputy Amusa Mwanamwaamwa and other judges have a duty to not be part of this shenanigan and keep away from any purported swearing of an illegal president who seizes power in this manner.