The Green Party plans to use the proposed process of multi-stakeholder dialogue, facilitated through the office of the Commonwealth Secretary General, to advocate for constitutional court reforms, holding of the referendum to enhance the Bill of Rights, and ensuring an electronic voting system is put in place, for Zambia to have an effective framework for good governance and the rule of law prior to 2021 elections.
The ugliest governance scar that resulted from Zambia’s 2016 Presidential is the emergence of enclave politics or geopolitics. The country in now politically divided into two political enclaves: The north-east political enclave and the south-west political enclave. This ugly governance legacy needs to be curtailed before the 2021 General Elections through various interventions.
The most unfortunate situation is that the geopolitics has cascaded even to the justice system, particularly the Constitutional Court. In addition to charges of incompetence, ugly commentaries on the judges’ geopolitical orientation emerged. At the moment five out of six judges are appearing before the Judicial Complaints Commission (JCC) for incompetence and gross misconduct in relation to handling of the 2016 presidential petition. Some commentators went further to align the judges decisions in presidential election petition to geopolitical enclave orientation.
To remedy this situation, one of the key interventions the Green Party plans to advocate through the Commonwealth initiative is decoupling of the Constitutional Court from assertions of incompetence and the geopolitics stigma. Such public perceptions of an apex Court like the Constitutional Court erode its integrity. Courts are for men and women of absolute integrity, and of deepest legal wisdom, who view their oath so sacred, and love their country so deeply that they prefer to die for justice rather than betray it, or indeed betray the Constitution and their oath of office.
To aggravate matters, the Law Association of Zambia (LAZ), which is supposed to be the reservoir for judges, has also been caught up in the web of geopolitical orientation. President Edgar Lungu has even asked LAZ to form a political party.
To insulate the Apex Court from ugly perceptions of incompetence and geopolitics, in addition to move for removal of incompetent judges, we as the Greens plan to advocate for employment of additional Constitutional Court judges form the Commonwealth. Since the Constitution prescribes for at least 13 Concourt judges, with only 6 employed at the moment, out of which 5 are appearing before the JCC on charges incompetence and gross misconduct, we find it to be wiser to recruit at least 6 additional judges from the Commonwealth to fill-in the gap.
Recruiting foreign Judges is not strange in the Commonwealth. Several countries have done so before. Kenya’s Judicial Service Commission recently announced it is going to begin hiring foreign judges when the integrity of Kenyan lawyers seeking to join the bench was questioned. The Chief Justice disclosed that although many lawyers were vocal in attacking appointments to the bench, most were incapable of becoming judges. The Chief Justice, who chairs the judicial commission, recently nominated 25 lawyers to become judges. However, the President confirmed only 11 nominees.
While employing expatriate judges may be highly unusual in Zambia, it is important to note that the shared legal heritages of Commonwealth countries – procedural and substantive laws in former British colonies countries are heavily influenced by the British model. So judges in the Commonwealth have one common denominator. In most countries, if not all for British colonies, the British legal system plays an important role. It is also important to acknowledge that among the legal systems in the world, the British model is more understandable, if not exceptional.
Most foreign precedents used by Constitutional Judges worldwide, in deciding constitutional cases, the British precedents are often cited; they are liable, and provide useful insights into the extent to which a progressive constitutional convergence is taking place between common law and civil law traditions in the Commonwealth.
It may be called Judicial Globalization, or something like that, but that is one of the key interventions that Zambia needs to heal the ugly scars of geopolitics prior to the 2021 General Elections.
Green Party of Zambia