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.