Soon after the Electoral Commission of Zambia announced its final results in favor of Lungu, Prof. Ndulo warned that Zambia was becoming a failed state. On September 12, Lusaka Times published a detailed article from Professor Ndulo, addressed to the three Constitutional Court (ConCourt) Judges who reversed their decision on HH’s petition. Prof. Ndulo argument is summarized in the first two paragraphs:
“There can be no denying that Zambia’s Judicial system, especially the Constitutional Court, is in a crisis. It has failed to play its constitutional role. I would agree with Professor Hansugule’s assessment that the Zambian Constitutional Court displays unbelievable mediocrity and is an embarrassment to Africa and the rest of the world. In this article I argue that the September 5 decision of Justices Sitali, Mulonda and Mulenga to overturn a decision of the full bench was illegal, irregular and unprofessional and has no legal effect.”
Prof. Ndulo’s article followed Prof. Hansugule’s piece which condemned the ConCourt’s decision. The article further claimed that his once “friend” Lungu stole the election from his “younger brother” HH—and Lungu “knows it”. Lungu, he argued, “has unilaterally barred the CC from hearing the petitioner in line with well-articulated principles insisting on an independent judiciary.” There is nothing new to Prof. Hansugule claims—HH, UPND and the Zambian Watchdog have repeated these claims.
I have respect for the two Professors and I believe they are among the cream of Zambian intellectuals. However, I am surprised that they ignored the first U-turn of the ConCourt, when it reversed its decision to dismiss the petition on Friday 2, 2016. HH was excited that the ConCourt had reversed its official decision, and would hear his petition on Monday. But when the same Court reversed its reversed decision, he cried foul.
Sadly, the two learned scholars did not address the Friday September 2, 2016 ConCourt U-turn—which is equally shocking. In legal terms, the Court needed to cite the section of the Constitution under which its decision to reverse its initial ruling was based—which in fact does not exist. Since the precedent of reversing decisions was set on Friday when HH complained, it should not surprise us that the ConCourt did it again on Monday September 5, 2016.
In addition, the two scholars failed to discuss some bigger problems with the Constitution—14 days and the finality of the ConCourt decisions. I fully agree with Prof. Ndulo—we face a constitutional crisis. This crisis, however, is not due to Lungu’s victory or the ConCurt’s decision, but the national Constitution. All well-meaning Zambians need to accept that the current Constitution needs straightening if it is to stand the test of time. I realize that those who participated in the drafting of the Constitution simply cut and paste various sections from other nations’ Constitutions and legal documents without thinking through the legal implications of the same. It is for this reason that HH must be applauded—he allowed us to see the holes in our Constitution. To cite Constitution, while ignoring those which justify the Court’s decision is nothing but mere partisan politicking.
It is saddening that scholarly analysis of the issue is blinded by partisan politics as opposed to independent legal analysis. In my article published before the Supreme Court’s ruling on HH’s attempts to halt the inauguration of Lungu, I argued that the Zambian Constitution does not allow appeals related to presidential petitions: “Clause 101: 7, and 103: 4 state that the ConCourt’s decision “is final.” These clauses are further stamped by Article 128: (4) “A decision of the Constitutional Court is not appealable to the Supreme Court.” Thus due to the un-appealable clause, HH, GBM, the UPND and its allies can make as much noise as possible—but the case is constitutionally closed!” Supreme Court Justice Nigel Mutuna agreed with my reading of the Constitution when he dismissed HH’s case with the words, “decisions made by the Constitutional Court cannot be reversed by the Supreme Court.”
Finally, we do not have the legal framework for addressing the Presidential petition and neither do we have any case in our short history to employ as an example. We may refer to other courts in other parts of the world as General Miyanda did, but those nations’ legal structures are equally different. Since the ConCourt itself is a new legal entity in the nation, we need to address how it relates to the bigger legal system in the nation—we need to work together to resolve this crisis.
By Rev. Kapya Kaoma