Professor Michelo Hansungule
Professor Michelo Hansungule

By Professor Michelo Hansungule

The Constitutional Court cannot be trusted with protecting democracy in the country. Since its establishment, the ConCourt has unashamedly been on the side of the PF government rather than the neutral arbiter courts are meant to be. We all know the debacle the Court provoked when by a majority of three it illegally denounced its own unanimous decision taken a few hours prior declaring its decision to hear the 2016 presidential election petitioners Hakainde Hichilema and Godfrey Bwalya.

The cases of Lusaka Central and Munali constituency election petitions both which it dismissed are just latest examples of jungle justice this Court has become associated with. But here, I do not blame the Court. Rather, I lay the blame squarely on the door steps of Zambian people who tend to be too trusting even of the jungle as source of justice for them. When I saw Ms. Scott’s message on whatsup the week her Lusaka Central petition was up on appeal I realized immediately that like most Zambians, she was trusting that there could be justice at last from the jungle in her petition. In the message, Ms. Scott yearned for justice complaining that it had taken her over two years for the appeal to be processed. On my side, I knew there would be nothing of the kind from that Court.

Not only because it took too long before the appeal but everything else on the ground pointed to a dismissal of the appeal. Lusaka Central member of Parliament Ms. Mwanakatwe who was the appellant at the ConCourt was elevated to Minister of Finance by Edgar Lungu despite that her purported election as member of Parliament was quashed and declared illegal by the High Court. Experience around the world shows quite clearly that ministry of finance is by definition a very important ministry which cannot be entrusted to a person who is subject of proceedings that may result in her losing the parliamentary seat for which she holds the ministerial position. The two PF MPs both for Lusaka Central and Munali constituencies were allowed not only to hold onto their parliamentary seats after the High Court nullified them but also remained part of cabinet as if nothing had happened. All this shows that Edgar Lungu’s PF government either does not care about courts or that it has judges in Edgar Lungu’s pockets. Just like in the 2016 presidential election petition,, Edgar knew what judges would decide in the two cases hence the confidence he exhibited to not only leave them in cabinet but to elevate one of them to the hot portfolio of Finance Minister.

John Sangwa has previously laid bare the inexperience and dismal lack of qualification of ConCourt judges. According to Sangwa virtually none of the judges then qualified to sit on that important court and I agree. If anyone doubted Sangwa at the time of his article or perhaps thought that it was vitiated by jealousy, court’s decisions since have more than vindicated him. Unless you have ill-motives you can’t give ill-qualified inexperienced bunch of individuals responsibilities beyond their capacity. This is precisely what Edgar wanted, to appoint individuals that are incapable of interpreting the law hence who can be abused by him to do his bidding. In other words, he wanted both to e president and simultaneously to be head of the judiciary, the case now. Besides the façade of courts and the principle of separation of powers in the constitution, he in fact calls the shots.

Munyonzwe Himalengwa has bemoaned the fact that the ConCourt could not use the two election petitions in Lusaka Central and Munali to redeem itself. He too is right. However they are in fact redeeming themselves but not by showing fidelity to the law but to the PF, their paymaster. If you see the composition of the ConCourt in recent sittings, it includes those individuals that were considered ‘independent’ or those that had not been part of the dreaded Court during its earlier sittings. Judges Munalula, Mulembe, Ann Sitali and president Chibomba had either not been part of earlier courts or were seen to be relatively independent but certainly not anymore. If you read the letter of the law they announce or are part of including in these two cases, they appear to have shifted positions and too willing to play to the PF gallery rather that to the law.

Ideally, the ConCourt in terms of its hierarchical structure in the judiciary is not supposed to play the role of court of first instance such as the High Court. It is at the Court of first instance where the Court has the opportunity to listen to witnesses in relation to a matter hence the court with the jurisdiction to rule on issues of fact. Issues, for instance, of racial discrimination that were perpetrated against the petitioner in the Lusaka Central petition are prerogative of court of first instance which listened to witnesses to determine. There is a clear distinction between the mandate of a court of first instance and a hierarchically higher court with the latter only vested with issues of law and not of fact. To the extent the ConCourt also apparently reviews findings of fact and given the structure between the High Court and the ConCourt does not provide for the appeal court, the ConCourt is operating illegally.

More importantly, the preset structure of the ConCourt as enshrined in the 2016 constitution is illegal. When the constitution says decisions of the ConCourt on matters which come to it in its capacity as court of first instance are final, it seriously overlooks the right to appeal enshrined in the bill of rights as a universal human right attached to every human being. A basic right guaranteed in the bill of rights cannot be taken away or wantonly denied by a power in a chapter outside the fundamental human rights chapter. Therefore, it is illegal for the constitution to tell petitioners like HH and GBM that they cannot be heard by the ConCourt and that they have no right of appeal to anyone against this decision yet the bill of rights guarantees them this right.

During his confirmation hearing, current Chief Justice of Nigeria (Walter Samuel Nkanu Onnoghen) was asked by Senators whether Nigeria should establish a permanent and separate federal constitutional court? In his response, the CJ discouraged the idea arguing that a separate constitutional court was not Anglo-American tradition. The CJ drew parallels with the experience in the United Kingdom and other common law jurisdictions which did not have separate constitutional courts. He argued that idea of a constitutional court is part of civil law tradition like in French and like jurisdictions. In this sense, South Africa is an exception. Partly because South Africa is Roman-Dutch law but also common law and given the apartheid past, it was necessary for South Africa to break with tradition and enact the Constitutional Court in Section 166 of the post-apartheid constitution and prescribe its jurisdiction in Section 177. Just like the Zimbabwe constitution, the Chief Justice of South Africa heads the ConCourt which unlike Zimbabwe is a full time court. Unlike Zimbabwe, the South African CJ is not member of the Supreme Court of Appeal which is ranked one step lower than the ConCurt.

Finally, the way our constitution was ‘adopted’ prior to enactment by Parliament explains its current woes. Instead of seeking broader consensus from the population given the importance of the constitution, PF took it to State House where it was bastadadized into what it is today. In PF they think that the president is above the constitution hence they asked him or rather he demanded to have sight of it so that he could have a final say and this is why it is such a useless document full of contradictions. If you compare the Zambian constitution with the Zimbabwe 2013 constitution on the constitutional court, the latter has no contradictions characteristic of the former. Section 166 of the Zimbabwe constitution provides that the constitutional court shall consist of the Chief Justice, deputy Chief Justice and five other judges. Just think of this in relation to the Zambian constitution which leaves out the Chief Justice but instead brings people from nowhere and promotes them to this very high court? This is what the CJ of Nigeria was referring to, namely, that the constitutional court in common law jurisdictions is usually ad hoc only convened when there is a case requiring interpretation of the constitution. Even in South Africa which has this court separately from the regular courts it began it with separate jurisdiction specifically to interpret and apply the constitution but has since then expanded it to all other matters for which leave has been granted.

So, from various levels, the ConCourt should be abolished as permanent self-standing court. First, as explained above, its jurisdiction is illegal. Second, its hierarchical structure in the justice institutions is vague and uncertain. Third, it is composed of unqualified and inexperienced bunch of people. Decisions since the operationalisation of this court inevitably demonstrate this conclusion. Because of the illegality of this court, it follows that the occupants of the position of judge cannot plead security of tenure as in ordinary circumstances. Consequently, they can be removed without regard to the law governing security of tenure of judges.

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73 COMMENTS

  1. Agreed, in fact, if we are not careful, this Kangaroo Court might create rifts and fights among the animals in this republic. In the first place why should the Zambians be promoting lawlessness by subjecting themselves to an institution being run by unqualified personnel? Is this not the same as presenting yourself to a quack surgeon for an operation?

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    • By hook or crook, the next government will be PF.

      They will make sure they win the elections, at any cost, by any means.

      The reason is simple.

      All plausible permutations of alternatives would see them spend their natural lives behind bars.

      It really is that simple.

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    • The constitution is like the Bible and the basic premise of sound theology is that scripture backs scripture.

      That’s why when the devil tried to tempt Jesus using scripture, He responded back using scripture to discredit his manipulative objectivity.

      Jesus’ responses knocked the devil off his kilts because scripture supports scripture. In the same vein, I am not a lawyer and I don’t ever intend to be but I have read the entire constitution.

      Based on reading in entirety a term is a 5 year mandate and does not include finishing one from one deceased President to another.

      Further more, ECL ascendency to finish MCS’s term was under the old constitution this even carried forward to the amended constitution.

      Based on these premises and others from more articles, ECL is eligible…

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    • Continued… and in 2

      Based on these premises and others from more articles, ECL is eligible unconditionally to stand for his own 2 full terms and that will be the verdict come Friday.

      Sorry Chipimo, sorry M’membe, sorry Hakainde, sorry Hansungule and well done General Miyanda, well done Rev Pule and team.

      The rest just be ready to meet Lungu at the polls in 2021. So far he still has my vote, it’s incumbent upon you to convince me you’re better alternatives.

      But so far, you’re just a bunch of whiners.

      Whining Is Not A Winning Strategy ~ B R Mumba, Sr

      Original Content, No Copyrights Reserved.

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    • Yaba … Prof here had 2 years to contribute effectively to the commission and chose to keep quiet.

      Also, when ECL wanted to push for a referendum which he is now advocating, he was part of the bandwagon campaigning against the referendum.

      These chaps think we are so stup111t to remember their antics. Now he comes here with his long diatribe hoping to skew opinion.

      Kabepeko bambi boyi … we are not abolishing anything you had 2 to 3 years to contribute to effectively and even when given a second chance through the referendum process you fought against tooth and nail.

      What a moron!!! Shaa

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    • KangCourt has undermined the independence of judiciary. Its become a garbage bin for unfavorable verdicts against PF.
      Most of these KangCourt judges are Lungu’s drink-mates or friends wives. The openly biased Ann Mwewa Sitali is a sister to the notorious Joseph Mwewa who provided cash to pay bribes to the judges who in 2015 ruled Lungu as legitimate PF president over Miles Sampa. Joseph Mwewa owns Asphalt Roads Zambia Ltd with road contracts in kabwe, Kasempa, sinazongwe & at new KK international airport.

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    • Hansungule is a UPND mercenary hiding thw guise of the law. Just like Ndulo. These arw hired guns to now discredit the Court ahead of Friday ruling

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    • Since the concourt does not seem to have ever ruled in favour of Hansungule’s UPND, it should be abolished. But Hansungule should ask himself why this is so. Does he think his tribesman HH can get justice from the concourt whose justices he has been in the habit of insulting?

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    • Next government? Really laughable…that would happen with those stooges in place forget 2021…you have to be very smart or win outright!!

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    • Koma chalimikalipa! This Ha tribe is bitter. It’s just so pathetic to see seemingly educated men like this Hansungule think with their hearts rather than be objective. Kalusa lost not because of con-court but he didn’t have the numbers.
      If I where you and your other Ha tribe folk, I would be thinking of replacing the perpetual loser, rather than blaming Zambian voters!

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    • The ethical standards currently prevailing in the country are the barometer. Zambia has very low ethical standards. For that reason, people feel free to steal, kill, cheat, and lie, judges included. They call it “CORRUPTION.” That is the cancer, and there is no known cure for it.

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    • The only problem PF and ECL made was to shy away from the petition, they should have just allowed the courts to finish off the pathetic party and its leader once and for all.

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    • I STARTED READING THE ARTICLE, BY THE TIME I WAS FINISHING THE FIRST PARAGRAPH, I GOT LAZY.
      So suddenly if they ruled for the two individuals highlighted, then they would be doing the right thing.

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  2. Continued …

    Based on these premises and others from more articles within the constitution, ECL is eligible unconditionally to stand for his own 2 full terms and that will be the verdict come Friday.

    Sorry Chipimo, sorry M’membe, sorry Hakainde, sorry Hansungule and well done General Miyanda, well done Rev Pule and team.

    The rest just be ready to meet Lungu at the polls in 2021. So far he still has my vote, it’s incumbent upon you to convince me you’re better alternatives.

    But so far, you’re just a bunch of whiners.

    Whining Is Not A Winning Strategy ~ B R Mumba, Sr

    Original Content, No Copyrights Reserved.

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    • – Levy Mwanawasa = Kwacha K3.5 per Dollar, Fuel K5 per litre, Mealie meal K28 per 25kg bag, 0 Debt, $3 Billion Foreign Reserves, Chinese population = 100
      – Lungu = Kwacha K12 per Dollar, Fuel K16 per litre, Mealie meal K100 per 25kg bag, $20 billion Debt, $0 Foreign Reserves, Chinese population = 500,000

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    • Ba Mumba sr, i like your analysis but old man you are forgetting one thing that is no matter how educated you are if stupidity is in your DNA you remain stupidity….eligible or not eligible sort out the blood economy then will have confidence in this government. What have you done for Zambia yourself that we should be proud of, how many Zambians have you employed? Busy defending the government that doesn’t care for its people, busy defending a government that is corrupt, busy defending the government that is empowering foreigners, busy defending a government that is full of police brutality…ba mudala were are your morals.

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    • killer – Really laughable you praised him (as Junior likes that) then you let him have both barrels!!!!!!!

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    • Why is that in your vocabulary it is always , Blur, blur, blur, “BUT,” Blur blur blur , “Really LAUGHABLE?” HANEGATIVES with hate in the heart.

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    • B R Mumba is a joker. Which constitution did you read that said a term is only 5 years? It says you need to have served a minimum of 3 years for it to be called a term. If you serve less than 3 years, you would not have served a term but still have held office, and you can only hold office twice. So technically you will only be able to serve one full term and its over.

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  3. What a waste of time by this fimofimo ill informed prof. The concourt is only credible when a verdict is against the PF. An institution can’t be abolished based on emotions and tribal thinking. The under 5 party you support will need the same concourt in future.

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  4. 100% true, and with all these judgements in favour of PF we all know the verdict for ECL’s 2021 Eligibility. It’s like Concourt judges are PF paid up members, it’s really sad, we do not have an independent Judiciary in Zambia.

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  5. Prof Hansungule
    Unashamedly always on the opposite side of the PF government rather than the factual academic arbiter he should be in interpreting the law.
    The cases of Lusaka Central and Munali constituency election petitions both which it dismissed are just latest examples of moderating an overzealous High court judge making a ruling with intent to provoke. There are precedents emanating from the Kaunda era where you had to prove that violence was indeed prevalent and convictions were made against a certain candidate. That malpractice noted in one polling station could affect and reverse the entire election outcome.
    Zambia has made a start by putting up a ConCourt. The idea should be to improve it and not abolish it. The onus is on professionals such this learned man to come up with…

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    • …readjustment proposals. Mind you, this idea of the ConCourt was mooted by fellow professionals equally qualified and experienced.

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  6. this old man called profes has gone astray such that the knowledge he got has gone to waste,anyway with no doubt pf ni continue like it or insult writing are on the hall

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  7. …readjustment proposals. Mind you, this idea of the ConCourt was mooted by fellow professionals equally qualified and experienced.

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  8. BREVITY IS THE SOUL OF WIT.
    THE ARTICLE BY THE PROFESSOR IS TOO LONG. WE HAVE OTHER THINGS TO DO THAN READ TEDIOUS TRACTS.

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  9. True, the PF kangaroo court run by unqualified judges that only the kaponya`s in PF can approve of, the majority of PF members are uneducated, that`s why they approve of the kangaroo court run by unqualified magistrates who are tilted with the wrong judgment on every case, in fact these are PF paid up members masquerading as unqualified judges.

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  10. What a shame that a man who is suppose to be a light for the country has stooped so low to petty partisan and tribal levels. When these people pushed for the enactment of the constitution, they thought they could knock out ECL with the 50+1 or petition. Now he even sinks lower to pick out judges from his tribe?? Pathetic, and he doesn’t realise he’s losing his credibility and morality. Instead of guiding the nation as elders and intellectuals, they are promoting tribalism and divisions.

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  11. By the way with the new constitution, we never have to worry about this term nonsense anymore with by-elections since the Vice President will now be able to finish the remaining term of a deceased President.

    That’s a major breakthrough the smart people of the Zambian Enterprise achieved for themselves.

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  12. What if, in similar to the Industrial Relations Court vis a vis the High Court, the ConCourt was made equivalent to the Court of Appeal, in similar circumstances, both the ConCourt and the Court of Appeal reporting to and under the Supreme Court?

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  13. Another tribal boer has spoken.

    Last time I wrote on this blog that NO MATTER HOW EDUCATED TONGAS ARE, THAT TRIBAL DULLNESS IS EVER PRESENT.e.g this Prof.

    Master PLAN for ECL to consolidate Con court because of HIGH COURT which is polluted by Nchitos , Fred M’meembe and others UPND ZEALOTS .ECL was once Justice minister , he knows very well how TRIBALLY High court has become. No wonder ECL instituted con-court to champion Justice in the country.

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  14. Prof Hansungule has lost it. As a learned person and academic, he should shy away from emotion. Society respects lawyers and academics for objectivity. Words like ” unashamedly” also befit him for their is total lack of objectivity but emotion in this clearly messy write-up. Even examples given leave much to be desired. Presidential election petitions in Kenya are dealt with by the Supreme Court as a court of first instance. The decision of the Supreme Court in that country, though first instance, is final. If anything, its decisions in the last election have been heralded as some of the best ever in Africa. So what is the fuss about? In South Africa, the president is not elected but deployed. So you cant compare apples to mangoes or bananas.

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  15. I least worry about Professors like Ndulo and Hansungule who have never won a single case. Man is dying of envy that he is no where near Statw power

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  16. My other point of departure is the call to disband the Concourt on account of perceived wrong decisions. Of course the court has generally make errors in its decisions, but is it the only court to have done so? The High court has on several occasions made erroneous decision but is the reason to advance to scrap it? Equally, the supreme court has too made erroneous decisions before but should that be the reason to scrap it? Of course our courts need a tune-up but that is not reason to abolish them?. It is disgusting to see learned persons like Prof Hansungule behaved no better than bad carpenter who blames tools. The starting point resolve judiciary deficits is to resolve ZIALE issues. If ZIALE churns out chaff, so will be the judges, especially if the creame-de-cream opt for greener…

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    • Continued….. If ZIALE churns out chaff, so will be the judges, especially if the creame-de-cream opt for greener pastures like private practice and working abroad. Prof Hansungule is actually a culprit himself in this regard

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  17. I dont like it when it comes from some political cadres, he is saying this knowing very well that it will be PF again in the next government. This man is a UPND cadre who hopes that one day the upnd will form government and he will be appointed obviously to the Ministry of …………….he knows very well. He awnts to be the Given Lubinda of the government that will never be……….nayaa inee

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  18. Professor Ha what?

    Why doesn’t he condemn his president for no election in upendi

    Who voted for GBM to become VIP

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    • Pro. HANSONI, the FOURNTEEN write the UN on his UNIVERSITY PAPERHEAD, that proves how dull and “villagish” this TRIBAL UPND TONGA is. I don’t even know what he teaches his students but I can tell you it isn no different from what you see from HaJOONY, HaMweetwa, BoSpakata and all the CLAN here because that THING is in the Blood.

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  19. You can forgive this disillusioned old man because his promised chances of ever being appointed to a Ministerial position through nomination by Hynae HH will never come to pass and you understand his ranting. We havent forgotten that this the same old man who forged some University Headed paper to try and use the name of a named University in South Africa until he was warned and suspended. These are the people HH and UPND has engaged to manufacture fake news to discredit President Lungu and the PF Government to international media, what a shame!!!! Mwanya, you will rot in diaspora while we, the patriots of Zambia develop and build our beautiful country for our children, grand children and great grand children. Some people, you wonder!

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  20. It’s not the concourt that should be abolished but the judges that are sitting there. The concourt is a good idea if it observes neutrality and works the way it should like the one in SA. Problem comes when you have biased judges.

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  21. I reviewed constitution regarding Presidential term of office for myself. It says: An individual shall not serve as President for more than two 5 year terms of office. A term of office is 5 years not less. Term does not refer to number of times sworn in it is a duration of Time. This means that anything less than 5 years is not considered a full term of office. An incomplete term of an abandoned Presifency is a Presidential term of office of that President and not of the one that completes it. This in essence also means that RB can stand for another term of 5 years should he so wish. Be objective and not emotional read the constitution for yourselves.

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    • The Party of INCOMPOS will stone you for being objective. They like HALLUCINATING and dreaming about their UNDER FIVE little god.

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  22. Objectivity is key for rational thinking and Reasoning. A new amendment to a constitution does not prejudice an incumbent or disadvantage them for the past. As an example, if today marijuana was legalized in Zambia it means everyone convicted of it in the past and serving time in Prison currently would have to have they’re sentence scrapped and those serving in prison released.

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  23. So given the above EL and RB are eligible to stand for one more full term no problem. Don’t let anyone else mislead you to think ConCourt is making an unfair judgment on this one. Learn to read things for yourselves rather than read and digest someone else’s opinion.

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  24. Constitution of Zambia, 1991 (as amended up to Act No. 18 of 1996)

    PART IV: THE EXECUTIVE

    (11)
    The person who has held office as President shall not, within the period referred to in clause (10), perform any functions of the office of President under this Constitution or any other law.

    35. (1) Subject to clauses (2) and (4) every President shall hold office for a period of five years.

    (2)
    Notwithstanding anything to the contrary contained in this Constitution or any other law a person who has twice been elected as President shall not be eligible for re-election to that office.

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  25. So this foolish prof thinks Zambia belongs to HH what about other opposition leaders who have actually started there political party’s from the scratch other than being brought from back door because he is Tonga

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  26. Apparently, Prof. Hansungule’s bitterness is NOT linked to Constitutional Court verdicts on MPs for Lusaka Central or Munali, which were pronounced a long time ago. Bo Hansungule’s real fear arises from the latest verdict that dismissed UPND’s bid to overturn Mr. E.C Lungu’s election as Republican President. Worst still, UPND’s recent Parliamentary losses has actually cast doubts on HH’s chances ever becoming Republican President. Such set-backs have triggered nightmares in Prof. Hansungu who has never defended a case in Courts of Law. I just feel sorry for students of Law at Wits University.

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  27. Example of how change in constitution should not leave the past disadvantaged.

    Except from an American Newspaper….

    In the weeks following the legalization of cannabis in California, San Francisco’s district attorney expunged thousands of felony convictions related to cannabis possession. Cities such as Seattle and San Diego have also moved to clear away records of marijuana possession.

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  28. I thought the little god vice president of the TRIBAL PARTY online Larry Mweetwa would challenge you on this one but he has put away his tail like a Galu Watcher in Zambia.

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  29. I am at pains to understand how a Lawyer can write a critic on a Constitutional issue without providing provisions of the Constitution – and expect his readership to learn why a judgement should tilt one way. Anyway, his readership believe everything he writes, and he knows.

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  30. It’s that thing again? I mean the trib.al “professor” Hansungule? I would have read if I didn’t see the trib.al name, and whoops the trib.al nose gives everything away!???

    Yaba, the “professor” who wanted to use the name of University of Pretoria to prop up trib.al Hacks? This trib.al thing is never ashamed of embarrassment, is “he”??

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  31. CADRES ARE VERY VERY SICK.
    They don’t use their brains to think and you can guess what they use to think. Just read their comments on this blog and you will conclude what I am talking about. I feel for the country. We the sober people let’s not attack personalities but discuss issues that affect our citizens. Let the PF cadres continue with insults. We will not go low to their studipity.

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  32. Prof. Hansungule stated
    “First, as explained above, its jurisdiction is illegal” meaning that of the Constitutional Court of Zambia

    The Zambian Spreme Court in Miyanda v The High-Court defined the term ” Jurisdiction ” to connote the legitimate authority granted upon any Court to not just hear and determing any matter but to also entertain any application before it . The authority to hear any matter shall always be obtained from the Law ( herein referred to as The Constiution or any Subordinate Law , In this case , The Constitutional Court Act )

    The Constiutional Court of Zambia in the case of Nkandu Luo (Prof) and The Electroal Commission of Zambia v Doreen Sefuke Mwamba and The Attorney General Appeal No 1072016 ,In passing judgement cited the Kenyan case of Samuel Kamau…

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  33. @1.6 LAZI. You should equally show dismay when judges become cadres. Those judges are more important to upholding our rights than Professor Hansungule. You should equally be ashamed of your thinking levels bru.

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