The justices are rewriting the law, making a presumption on the wishes of the parliament or establishing some strange interchangeability with parliament. In my humble view, this is impropriety and illegitimacy.
The decisions of the constitutional court should be legally and morally unassailable-regrettably not so the case.
By Alexander Bwalya Chikwanda
8th December 2017
The judiciary in Zambia has been a big plus for the country and a credible institution on the wider governance horizon. The judiciary comprises of men and women who naturally have their share of human frailties so there are instances of a few rogues but very much more the exception other than the rule. It is therefore an inescapable imperative that all stakeholders in and out of the judiciary take stock and indulge in deep and honest introspection to ensure that slippages in the adminstration of justice are arrested at the earliest opportunity.
Let me, without hesitation; address the particular draconian ruling by the constitutional court on Ministers vacating office. In section 116 of the constitution of Zambia (amendment) act number 2 of 2016, the cases for office of the Ministers becoming vacant are clearly set leaving no room or leeway for speculation, supposition, inference, or indeed extrapolation.
Section 116(3) of the constitution states:
The office of the Minister becomes vacant if-
(a) the Minister is removed from the office by the president;
(b) the Minister resigns, by notice in writing to the president;
(c) in the case of a nominated member of parliament, the nomination is revoked;
(d) the Minister dies;
(e) another person assumes office of the president;
(f) the Minister has a mental or physical disability that makes the Minister incapable of performing the functions of that office
The inference that Ministers are members of parliament and when parliament is dissolved, Ministers must ipso facto vacate their offices may be not too illogical a projection but that is not stated in the pertinent section of the law which is totally without ambiguity. The justices are rewriting the law, making a presumption on the wishes of the parliament or establishing some strange interchangeability with parliament. In my humble view, this is impropriety and illegitimacy.
There are profound lessons about constitution making in Zambia. The powers that be stall when there is ample time to consult and dialogue; then with the passage of time inordinate pressures pile up and matters are rushed to parliament with rather indecent haste ending up with outcomes that constitute monstrosities in the process, not pondering the severe cost implications.
Any further amendments to the constitution should be anchored on deeper reflection apart from more honest elaborate consultation. Constitution making in Zambia from the inception, when some of us were in the unip government, has been a big disaster. There is some ingrained bad habit passed to subsequent administrations. This is that various stakeholders in the government in power, opposition political parties when they have existed, civil society and all, we have shown the inclination to write our short-term interest in the constitution. In the process, we have not come up with realistic constitutions that can stand the litmus test of time by addressing the subtle interests of generations to come, also known as posterity.
Expeditious dispensation of justice will increasingly be hampered by inadequate space and infrastructure, even at the lofty levels of high and supreme courts. Going forward, we must pay urgent attention to remedying this situation. There will be a compelling need to avoid proliferation of courts. With hindsight, constitutional issues are a rarity; the best and most cost effective action would have been to constitute constitutional court sessions from the supreme court where you have experience, maturity and track records. We cannot ordain wisdom and requisite experience by bureaucratic fiats, no matter how elaborate myth making may be.
We need deep thinking in the nation. The justices have the highest levels of intellect shrouded in the ingrained habits to search widely so that they do not interchange facts with value judgements and opinions – this is why they are called learned. Respectability of the judiciary must be anchored on propriety and decisions which are totally above board and beyond reproach.
It is my considered hope and prayer that at all levels of justice, decisions which are emotion and sentiment- driven can be avoided for these decisions inevitably have little or no rationality content. The erosion of confidence and trust resultant from these slippages are inexorable and irreversible.
The Author is Zambia’s Former Minister of Finance, and current Chairperson for Finance Committee in the ruling PF Central Committee