Reflections On President Lungu Comments Concerning The Supreme Court Of Kenya

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Green Party leader Peter Sinkamba
Green Party leader Peter Sinkamba

By Peter Sinkamba

A lot has been said from various corners on President Edgar Lungu’s comments regarding the Constitutional Court and his eligibility to contest the 2021 elections. I will not dwell on the aspect of his eligibility as that is the preserve of the Court lest I am cited for contempt for commenting on a matter that is active before the Court. Nor will I dwell on the aspect of whether or not what President Lungu said contravened the doctrine of separation of powers vis-à-vis judicial independence. A lot has been said about this from various stakeholders.

The least discussed but quite important is his criticism of the court system in Kenya. Though President Lungu did not specifically mention a particular Court of Kenya by name, I strongly believe he was making reference to the Supreme Court, and in particular with regard to the decision that Court made to nullify the election of Kenyatta and Ruto on 20 September, 2017.

For the record, below are President Lungu’s comments:

“But to my friends in the court system, I say don’t plunge us into chaos by imitating or emulating Kenya or any other court system for that matter which does not care for the interests of the people. I am saying this in front of you people because there are cameras in front of me, there are some Zambians who are writing this story, recording, because I have heard some judges say ‘why don’t we emulate the Kenyan courts? They are very brave’ I don’t think that is right. We should preserve peace, we should listen to the voice of the people, we should listen to the will of the people in the Constitution. Whether I am eligible to stand or not in 2021 should not be dependent on the case in Kenya.”

For the benefit of majority who did not have sight of the Kenya Supreme Court Judgment, below are some of the pertinent excerpts of the Judgment in relation to listening to the will of the people in the Constitution:

[393] In the 2013 Raila Odinga case, this Court stated that “it should not be for the court to determine who comes to occupy the Presidential office; save that this court, as the ultimate judicial forum, is entrusted under the Supreme Court Act, 2011 (Act No.7 of 2011) with the obligation to assert the supremacy of the Constitution and the sovereignty of the people of Kenya” [S.3(a)] must safeguard the electoral process and ensure that individuals accede to power in the presidential office, only in compliance with the law regarding elections.”

“We reiterate those words in this petition and for as long as the Constitution of Kenya has the provisions granting this Court the mandate to overturn a presidential election in appropriate circumstances, it will do so because the people of Kenya in the preamble to the Constitution adopted, enacted and gave unto themselves the Constitution for themselves and future generations.”

[394] It is also our view that the greatness of a nation lies not in the might of its armies important as that is, not in the largeness of its economy, important as that is also. The greatness of a nation lies in its fidelity to the Constitution and strict adherence to the rule of law, and above all, the fear of God. The Rule of law ensures that society is governed on the basis of rules and not the might of force. It provides a framework for orderly and objective relationships between citizens in a country. In the Kenyan context, this is underpinned by the Constitution.

[399] What of the argument that this Court should not subvert the will of the people? This Court is one of those to whom that sovereign power has been delegated under Article 1(3)(c) of the same Constitution. All its powers including that of invalidating a presidential election is not self-given, nor forcefully taken, but is donated by the people of Kenya. To dishonestly exercise that delegated power and to close our eyes to constitutional violations would be a dereliction of duty and we refuse to accept the invitation to do so however popular the invitation may seem.

Therefore, however burdensome, let the majesty of the Constitution reverberate across the lengths and breadths of our motherland; let it bubble from our rivers and oceans; let it boomerang from our hills and mountains; let it serenade our households from the trees; let it sprout from our institutions of learning; let it toll from our sanctums of prayer; and to those, who bear the responsibility of leadership, let it be a constant irritant..”

DATED and DELIVERED at NAIROBI this 20th Day of September 2017.

Fellow Zambians, my question is: what, from the above pronouncements of the Supreme Court of Kenya is not worth emulating here in Zambia?

What is unconstitutional about the pronouncements?

Please help me understand this!

22 COMMENTS

    • Something wrong with the dude, knows not his jurisdiction, Kenyan courts are not part and parcel of Zambia, so why dude eavesdrop on your neighbors, you ain’t got stuff to do?

      stick to your hood, the petition in concourt for your third term bid was brought forward by your dan pule, and his colleagues.

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    • Sinkamba here is to understand:
      1. A wise/gentleman, accepts a pregnancy even if he is total sure that his wife (country) was raped. A child (citizen) will understand in future. Why DNA test at supreme court?
      We all know the election rapist, this is why Edgar saying “think of child”, don’t abort like in Kenya, next pregnancy may result in another ****.

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    • Hell no LT, you can’t moderate my comments. Sinkamba needs understanding that Zambians elections were raped, and Edgar saying please don’t call for re-raping.
      I am on Edgar side this time.
      I don’t like anything about Kenya.

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  1. Ba Peter
    I’m your follower but you have failed me in this “analysis”. I thought you would delve a little further and deeper in unbundling the excerpts quoted from Kenyan Concourt ruling. Should we expect a follow-up? You have answered your question with a question. What a waste of space, I’m sorry to say

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    • Ba Folosho,

      Ba Sinkamba is not “analyzing” anything but merely asking two questions:

      (1) What is unconstitutional about the pronouncements of the Supreme Court Justices since the President is quoted as saying “we should listen to will of the people in the Constitution”?

      (2) Which one of paragraphed pronouncements should we not emulate?

      These are the two questions Mr. Sinkamba is seeking responses from the readers like you

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    • @Zambia in the sun: The only time “we”, and I mean ‘WE’ Zambians, can emulate any Constitution or Law on God’s good Earth is when we are formulating OUR own Constitution. And that time, worth several years and some change, is past already. But those who feel that our Constitution falls short, the process is already under way to take care of the shortfalls and lacunas that exist in our Constitution….I honestly hope you are participating in the process instead of complaining and crying about it later on!

      What we can’t do, or tolerate, as a Country is get into the HABIT of copying/emulating other Countries’ Judicial judgements thinking that they would work in our CONTEXT. Cookie-cutter court judgements, borrowed from foreign judicial systems without real understanding of the…

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    • Continue:

      …local Dynamics, is dangerous and bound to fail or boomerang (to borrow the KHC language.) Let us emulate appropriate and relavant Laws, and good Practices that fits our indigenous jurisprudence….NOT Foreign Court Rulings just because they sound SEXY or appear COURAGEOUS from afar!

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  2. Mr. Sinkamba, here you are misleading the readers. I have read the full judgement of the Kenyan presidential petition and I have also read the Dissenting Opinion of Judge Ojwang, SCJ. The Judgement is 178 pages long and the Dissenting Opinion is 91 pages long. By you Mr. Sinkamba to extract a few paragraphs from a 178 paged document and by you not mentioning the contents of the Dissenting Opinion is highly misleading. You have also deliberately avoided to discuss that the Supreme Court of Kenya went against its own precedents and the reasons it gave and whether you agree with these reasons or not.
    The biggest problems we have in Zambia is that we have politicians in the opposition who cannot tell the truth – either out of ignorance or deliberately.

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    • Ba Big Joe,

      Instead of a blanket statement”here you are misleading the readers” it would have been very helpful to us reader if you pin-pointed any one of the paragraphs from Ba Sinkamba’s write-up where he has misled the readers. It is not how long or short the judgments were. Nor is it which opinion (majority or dissenting) is right or truthful. From my understanding the crux of the matter is which one of the statements or pronouncements quoted is not worth emulating. And which one is unconstitutional. If you have noted any pronouncements in the 178 pages or 91 pages judgments not worthy emulating, or which are constitutional, it would have been helpful if you highlighted them to challenge Ba Sinkamba. If can not do that, then Ba Sinkamba has a point

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  3. Let us thrash out any ambiguity in the Zambian Constitution, regarding the issue at hand, here at home. No one will do it for us, from outside.
    Let us move forward.

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  4. Whats wrong with it? The Kenyan SC made an earth shattering judgment and then no one was found culpable.Thus it was all a mere show of “independence” and a history making statement than a solidly grounded ruling.It was “unconstitutional” ruling due to the fact that no election anywhere is ever perfect so to void a whole election on imperfections that didn’t alter the general will of the voters was wrong.Mind you Odinga lost by 1.5m votes.

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  5. “But to my friends in the court system, I say don’t plunge us into chaos by imitating or emulating Kenya or any other court system for that matter which does not care for the interests of the people. I am saying this in front of you people because there are cameras in front of me, there are some Zambians who are writing this story, recording, because I have heard some judges say ‘why don’t we emulate the Kenyan courts? They are very brave’ I don’t think that is right. We should preserve peace, we should listen to the voice of the people, we should listen to the will of the people in the Constitution. Whether I am eligible to stand or not in 2021 should not be dependent on the case in Kenya.”

    Is there any illegality in what the President said? Anything wrong with it? where did he go…

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    • Illegality in law and mere unethical improprieties are two different fruits.To say i don’t like you vs physically hurting you are two things in law.

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  6. Not worth emulating. The petition was brought based on evidence of electronic vote hacking & rigging which was never proved in court.The SC ruling went on another direction against its own earlier precedent and voided it on reason that the election didn’t pass the required constitutional test.Nobody was found guilty or punished by the court.

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  7. The constitution is not an end in itself. It provides a foundation for legal instruments vital for democracy to flourish. The specific reference to God was absurd. God is creator of all candidates, both winners and losers. Before God there is no victor nor vanquished. The loser is often times more deserving of victory than the winner. Alas, the people’s voice only is supreme. That is the reason why the Kenyan judgment can not escape from popular scrutiny.

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  8. Kenyan Sc – [399] What of the argument that this Court should not subvert the will of the people? This Court is one of those to whom that sovereign power has been delegated under Article 1(3)(c) of the same Constitution. All its powers including that of invalidating a presidential election is not self-given, nor forcefully taken, but is donated by the people of Kenya.
    Lungu’s statement – we should listen to the voice of the people, we should listen to the will of the people in the Constitution. Whether I am eligible to stand or not in 2021 should not be dependent on the case in Kenya.”
    Contrast the two. This is what Sinkamba is trying to get

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  9. “But to my friends in the court system, I say don’t plunge us into chaos by imitating or emulating Kenya or any other court system for that matter which does not care for the interests of the people”.
    So in these ruling extracts, which ruling is bad to emulate? Is there anything wrong to emulate in these extracts by Mr. Sinkamba ruling as pointed out by ECL. Also what about precedent, persuasive precedent in Zambia, are those two pieces of extracts bad law to use as precedent in Zambia?

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  10. “Reflections On President Lungu Comments Concerning The Supreme Court Of Kenya”. Does anyone worth his salt really give ECL a hearing? ECL is a clueless and an incompetent leader who is wasting Zambia’s development years. Here is an individual who negatively influenced the judicial processes inquiring into August 2016 election tampering, an aspect that would be unethical, immoral even illegal in a normal democracy. To argue that ECL is worth paying attention to, or that his commentary even contributes to a serious discourse on good governance and the rule of law, has got be one of the greatest jokes coming from Zambia today.

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  11. Each time ECL takes his tours abroad he proudly says he has learnt something from that country. This time he seems not to have learnt anything from the Kenya Supreme Court ruling!

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