By Sishuwa Sishuwa
On 13 March 2020, the Judiciary’s Acting Chief Registrar, Prince Boniface Mwiinga, announced that prominent constitutional law expert John Sangwa would no longer be allowed to appear before any court in Zambia. In a notice to all judges of the Supreme Court, Constitutional Court, Court of Appeal, High Court, Registrars and Magistrates, Mwiinga stated that the action followed “a complaint of professional misconduct made by the Judiciary to the Law Association of Zambia [LAZ] against the said Mr John Sangwa, SC”. What do we make of this move by the Judiciary?
The first point to note about Sangwa’s suspension is that it is void on grounds of procedural impropriety. The process for dealing with the misconduct of members of the bar is elaborate and provided for in Part IV of the Legal Practitioners’ Act. If anyone, including judicial officers, is aggrieved by Sangwa’s conduct, the correct procedure is for the aggrieved party to complain to LAZ for consideration of the grievance. The association, through its Legal Practitioners’ Committee, would then invite both the complainant and the concerned practitioner to whom the application relates for hearing. If a prima facie case is established against the respondent, the matter is then referred to the Disciplinary Committee, established under the Act, for further hearing.
The Disciplinary Committee may, after hearing the parties involved, and depending on the severity of the transgression, admonish or fine the practitioner, or recommend to the High Court that the practitioner be suspended or struck off the Roll. The court can only exercise the powers to suspend a practitioner on the recommendation from the Disciplinary Committee after all investigations and hearings have taken place. Now, what has happened in case of Sangwa is that the ‘Judiciary’, pre-determining his fate, started with the possible final adverse outcome before going through the mandatory process outlined above. This is prejudicial to Sangwa’s rights because an arm of the State is effectively trying to render whatever decision the Legal Practitioners’ Committee can make redundant.
The second point is that Sangwa’s suspension violates his constitutional right to be heard and secure protection of the law. Article 18 (9) of Zambia’s Constitution provides that “Any court or other adjudicating authority prescribed by law for the determination of the existence or extent of any civil right or obligation shall be established by law and shall be independent and impartial; and where proceedings for such a determination are instituted by any person before such a court or other adjudicating authority, the case shall be given a fair hearing within a reasonable time.” By taking an adverse position against Sangwa without according him the opportunity to be heard, the Judiciary committed ‘a bloodless coup’ against the Constitution and the basic principles of the rule of law. The Judiciary is neither infallible, above the Constitution nor beyond reproach. Judicial officers, more than anyone else, should know this. If the Judiciary, by penalising Sangwa, sought to encourage respect for the institution, they may have succeeded in achieving the opposite.
The third point that emanates from Sangwa’s suspension is in form of a question: who among the Judiciary was the complainant against him, the one (s) who will appear before the Legal Practitioners’ Committee for hearing? To suggest that it is the ‘Judiciary’ – an arm of the State and not a specific judge or court – is vague and misleading because institutions have no feelings to be hurt by the remarks of human beings. According to the Constitution of Zambia, the Judiciary consists of the Supreme Court, Constitutional Court, Court of Appeal, High Court, subordinate courts, small claims courts, local courts, and any other courts as prescribed by Parliament. Is the Judiciary’s Acting Chief Registrar telling Zambians that judicial officers of all these numerous courts met, sat down and decided, without according Sangwa the opportunity to exercise his constitutional right to be heard, that he should be barred indefinitely from appearing before any of them or their courts? Or is it the case that the Acting Chief Registrar is the complainant? If yes, what wrong did Sangwa do against the Acting Chief Registrar? Under what law or authority did the Acting Chief Registrar assume the role of complainant and judge to mete out the punishment? If the Acting Chief Registrar is not the complainant, then who directed Mwiinga to write the letter of complaint?
Assuming that Sangwa has been barred because of his argument that President Edgar Lungu dribbled Zambians when he appointed individuals who did not meet the constitutional requirements to serve as judges on the Constitutional Court: namely, specialised training or experience in human rights or constitutional law and 15 years’ experience as a legal practitioner, then there are three fundamental issues that arise. First, if the charge arose from this public criticism of the qualifications of Constitutional Court judges, one that may have been taken as attacks on the personal integrity of the individual judges, why is the complaint coming from the Acting Registrar of the Judiciary, not the individual judges themselves? Second, it is worth noting that this is not the first time that Sangwa is making this argument. He first raised it in 2016 when the current individual judges were nominated to serve on the Constitutional Court.
Sangwa even wrote a letter to President Lungu at the time, pointing out the noted shortcomings and asking him to reconsider the choice of his nominees. The President ignored him, and thanks to the ruling party’s majority in parliament, all six nominees were ratified. The question is, how is it possible that the same point that was not an offence in 2016 is now an offence? Now that they are confirmed judges, are the six individuals whose qualification to serve on the bench Sangwa had questioned now seeking to (ab)use their judicial positions to punish an active citizen who asks the hard questions, who proposes ways forward and who, from any position or none, acts as an agent or catalyst of positive action in dealing with the issues that matter most?
If the incompetence that some of the affected individuals have demonstrated in office or their judicial decisions is not deliberate, then Sangwa has been absolved by history. With the benefit of hindsight, we may now understand the poverty of some of the decisions that have come out from the Constitutional Court as a result of genuine lack of capacity: the judges are performing a role they are not qualified for. Third, were Sangwa’s comments that President Lungu corruptly appointed the judges of the Constitutional Court so grave that to keep him in practice would prejudice the legal profession and the public? In any case, did anyone from the Judiciary contact or seek audience with Sangwa before suspending him to confirm the accuracy of his views in any published story that may have motivated the decision to bar him? Or is the Judiciary simply out to gag critical voices?
The fourth point that arises from the indefinite suspension of Sangwa is that the Judiciary is now lawless, with terrible consequences on the rest of society. Let us assume that Sangwa, aggrieved with the decision of the Judiciary to bar him from appearing before any court in Zambia, wants to challenge the action in court on the basis that it violates his right to be heard. Does the ban extend to his choice to represent himself since citizens have a right to represent themselves in a court hearing? If it does, which body should Sangwa approach to challenge the violation of his right to be heard with himself as his legal counsel, since, in the absence of private courts, he only has public courts – that have all banned his right to Practice – to turn to? Where would he seek legal redress if members of the Judiciary, the custodian of the law, are themselves the violators of the law? The Judiciary is manufacturing lawlessness.
Sangwa’s suspension also demonstrates the breathtaking hypocrisy of the Judiciary when it comes to public criticism of judicial officers or their decisions. Why should Sangwa’s criticism of, say, the Constitutional Court judges attract punishment without being heard when President Lungu’s criticism of the same court or judges, his interference with their work, or refusal to obey their judgement, has not attracted any repercussions? If the argument is that Sangwa is a lawyer, Lungu is also one. In any case, Article 118 of the Constitution obliges the Judiciary to exercise judicial authority without discrimination; it says justice shall be blind and done to all. So why should Sangwa, who is a citizen before he is a lawyer, be discriminated against and denied his constitutional right to be heard and represent himself on the basis of his profession? When barring Sangwa, on whose behalf was the ‘Judiciary’ exercising that power – on behalf of individual judges or on behalf of the people as mandated by the Constitution?
The final point to be said about Sangwa’s suspension is that the real reason why he has been barred may have to do with his principled opposition to President Lungu’s third term bid. In recent months, Sangwa has been a strong critic of the proposed Constitution of Zambia (Amendment) Bill Number 10. He has also maintained that Lungu does not qualify to seek another term of office. In other words, the decision to bar Sangwa indefinitely is most likely linked to his defence for the protection of term limits coupled with Lungu’s efforts to eliminate someone he probably sees as the stumbling block to his all-consuming desire to secure a third term. In the event that Lungu does not succeed in his plans to push through Bill 10 – his main lifeline for re-election – there will likely be a legal challenge to his nomination, once filed in line with Article 52 of the Constitution, to stand as Zambia’s President next year.
By barring Sangwa, Lungu may be using the Judiciary to eliminate a likely counsel for whoever might oppose his nomination out of the fear that Sangwa’s great mind and expertise on constitutional law could lead to a successful legal challenge, one that would result in the fatal disqualification of the ruling party’s presidential candidate. It is indeed possible that LAZ may itself challenge the constitutionality of Lungu’s presidential candidacy next year once he has officially filed his nomination. Were that to happen, Sangwa is likely to be the association’s lawyer. He has previously represented LAZ on several high-profile cases relating to the defence of the Constitution such as the case of ministers’ illegal stay in office, the constitutionality of the deplorable Bill 10 and the unresolved matter of whether Lungu is eligible to stand for another term. Sangwa has also exhibited genuine loyalty to principle, inspiring bravery, and has been unrelenting in his demand for the Judiciary to provide reasoned judgements. In this instance, Lungu may be using the courts to supress criticism of the Constitutional Court in particular, criticism that has the potential to encourage the judges to display greater independence from the executive and stick to the rules of the game.
Another possibility is that Lungu could be using the Judiciary to bully LAZ and weaken its opposition to his ongoing unconstitutional manoeuvres and efforts to liquidate democracy by intimidating one of the association’s shining lights and making him an example of the perils of standing up to power. In fact, principled LAZ members and Zambians in general should not be surprised if they woke up tomorrow and learnt that Sangwa has been summoned for contempt of court and consequently handed a punitive jail sentence out of this ridiculous case in order to keep him away from the courtroom. Such is the desperation of the ruling elites. LAZ, which was easily manipulated by the Patriotic Front (PF) into publicly condemning Sangwa – for allegedly “questioning the qualifications, integrity, propriety and impartiality of the Constitutional Court Judges” – hours before the complaint from the Judiciary reached its secretariat, has put itself in an awkward position. Now that the matter is before LAZ, would Sangwa be heard and his case concluded before the 4 April 2020 elective Annual General Meeting – at which the PF intend to completely capture the body by advancing ruling party supporters to run and render it totally ineffective? Or would LAZ immediately ask for a reconsideration of the defacto suspension of Sangwa’s right to Practice? If the case remains undetermined by 4 April, it is probable that a thoroughly captured leadership, which could emerge from the LAZ elections, may recommend that Sangwa be removed from the Roll, however innocent he might be.
Argh, it is a disaster this thing called “Zambia”, right now, one that makes my blood boil.
Sangwa is a frustrated bitter person who doesn’t reason for his next person!!! No body cares it’s life as usual!!!
Mr Shishuwa(Dr prefix reserved for Medical doctors) is a Trumpian clone. He spins then sells his mistaken ideas. His modus operandi is the use superlatives for logical argument. He refers to the lawyeroid Sangwa as “prominent “, “expert” very subjectively. What a evidence is there to show Sangwa’s prominence in Common law Constitunal law, let alone expertise?
Repeal of judge-made law cannot be implied by aclaimation!!!
The Judiciary has complained against John Sangwa’s comments about some of its officials and went ahead and sanctioned him before hearing him. The Judiciary has told us that no matter wht Sangwa says in his defence, he’s guilty.
Criminal contempt of court in general refers to conduct that tends to hinder, embarrass, or obstruct the administration of justice or conduct which is calculated to lessen the court’s authority or dignity. Unlike civil contempt of court, it is a crime.
For once, I agree with Shushiwa. The judiciary is lawless. Sangwa should have been charged with this crime. On conviction, the nutural consequences should have then taken their course.
@BembaMan, No it cannot be life as usual. What we are witnessing in Zambia today needs you and me to put aside our regional and intangible affiliations to stand up and fight for what is right. Posterity will judge you harshly. Remember Niemoller ‘s poem which I paraphrase: First they came for the socialists, and I did not speak out—Because I was not a socialist. Next they came for the trade unionists, and I did not speak out— Because I was not a trade unionist. Then they came for the other tribes, and I did not speak out— Because I was not a from the other tribes. Then they came for me—and there was no one left to speak for me. By the time you realize that the PF is a monster it will be too late and you will have been its menu item and completely consumed and swallowed.
This act of barring Sangwa could be the last act that will break the back of those jackass rascals seated on the bench!
I pray so.
Sishuwa is witty, knowledgeable, sarcastic and makes watertight arguments in elegant and erudite prose. He’s right now the betenior and gadfly of ruling elites in Zambia. It’s not farfetched to imagine that he’s in their sights now.
Biased and without reason; This guy’s analyses are prejudiced and outright s.t.up.id!! He is a upnd cadre hiding behind academia, a coward without a spine. Who gives you the right to call the Judiciary “lawless”?? The Judiciary has every democratic right to admonish its officers who exhibit unethical behavior within the country’s Laws. Useless upnd cadre!!!!
@Zambian Citizen. Based on your accusation, does this mean you’re PF cadre?
In your head which is your world if holding a different opinion means belonging to an opposition party, then you should abandon that useless head of yours or find a butchery where they can help detach it from your body. That head of yours is not functioning as intended.
Zambian citizen – I don’t think you will find that Sishuwa questions the right of the Judiciary to admonish its officers but rather their impropriety in not following their own procedures in doing so. He clearly raises a few really strong points that should give you ample reason to counter him on rather than just branding him UPND whatever.
It’s officers perhaps. Sangwa isn’t one of those. Only LAZ governs him
Only a upnd fanatic fails to reason. It’s their way on nothing else. Sishungwa is filled with hate for Edgar Lungu hence his pseudo-intellectual attacks on him. When did sishungwa do an analysis on other leaders like Nawakwi, Chipimo, Mutati or hh?? It’s always Edgar this, Edgar that, PF this and that, he’s a upnd cadre!!! And he shall be treated as one.
Zambian Citizen you have no brains you can’t even understand what Sishuwa is trying to explain. You guys are just useless when I think of it.
Sishua shushua is now full fledged lawless, contemptuous and daring.
Let’s recount.
All social, legal and moral ills based on false accusations and malice designed by upndead and it’s surrogates from 2016 poll petitions through Mukula noise to Eligibility issues have failed.
All the cook pots orchestrated by sishua to sound intellectually solid have landed him in a classless cheap crooked unpaid cadre.
Sishua tries tooth and nail to sound intelligent but his jibberish yada yada places him more unequivocally into a lucky fellow who wasted his years behind the desk and came out empty. He now sounds like Kapya. I’ve stopped reading time wasting articles like sishua’s.
It is interesting how these !d!0+s can now throw unprintables at the Judiciary.
From now on, I will be commenting…
Sishuwa raises five points very clearly. You have not made an attempt to counter even one and instead have launched into a diatribe against his person. Seems to me then that if there is anyone who is a “classless, cheap, crooked, unpaid “, it is not Sishuwa.
You see points, I see utter hogwash and bitterness.
The Judiciary is an arm of Government.
The Executive is an arm of Government.
The Parliament is an arm of Government.
These arms or parts of Government performance the role of Governance.
Do you want them to he antagonistic.
Sishua is a nut, just deal with it.
…from comments.
The scale of attacks on Constitutional Court was unprecedented. The scale of attacks on the Constitutional Court was barbaric because a ruling of the Constitutional Court could not be the object of mockery, ridicule or insult, particularly from constitutional lawyer familiar with cultural norms and practices. Human rights history is replete with controversy. It is not like technology where all things being equal what works will work and what does not work will not work. Human rights communities represent various groups of believers, including conservatives and liberals. The conduct of a lawyer must be judged within the context of peers and the security of the State. Question one: procedure was abandoned by the constitutional lawyer in the first place. That is the reason why the…
Question one: procedure was abandoned by the constitutional lawyer in the first place. That is the reason why the judiciary spokesman responded by appropriate response, namely boycotted. Question 2: the human right to be heard will be maintained before LAZ first and thereafter restored by the judiciary depending on the outcome of LAZ hearing. In short, siege of the Constitutional Court is over with minimum damage. Question 3: the complainant is broadly officers of the bench concerned about the unwarranted attacks on the rulings of the courts and also attacks on the personalities bordering on character assignation. It is more appropriate in this situation to face the court registrar than to face the judge when complaints are against the entire justice system. Question 4: the suspension of…
Question 3: the complainant is broadly officers of the bench concerned about the unwarranted attacks on the rulings of the courts and also attacks on the personalities bordering on character assignation. It is more appropriate in this situation to face the court registrar than to face the judge when complaints are against the entire justice system. Question 4: the suspension of the constitutional lawyer will be lifted depending on the outcome the internal LAZ system. Consequently, the suspension is not gratuitous and at the pleasure of officers of the judiciary. No, there is no coup d’état in judiciary. The coup d’état attempted by the constitutional lawyer has been thwarted by gallant members of the judiciary. The judiciary has spoken. Now social media can take center stage again.
Dr Makasa – its good to get an orderly counter. A couple of things though. So just because Mr Sangwa himself does not seem to have followed procedure then its acceptable for the judiciary not to do so? Secondly, How sure are you that “the suspension of the constitutional lawyer will be lifted depending on the outcome the internal LAZ system”? Is there a written undertaking to do so? I am trying to understand how exactly the characters of the concerned justices has been assassinated. Is it that they actually do qualify to be Con Court judges and that Sangwa is just lying? i have not heard anyone actually state this.
The concept of appropriate response is simple: Ask a silly question: Get a silly answer. To the extent that the constitutional lawyer is not writing for a learned law journal, the writings are personal sentiments. There was no peer review and there was no authorities referenced on the subject. Scandalizing fellow lawyers sitting at the bench of the Constitutional Court is unacceptable. is wrong. Constitutional law is inherent to law practice. Take a commercial crime, for instance. is a commercial litigation or a criminal prosecution? Two, take libel for instance. Is criminal libel still legitimate or outdated? This suspension was necessitated by the conduct of the constitutional lawyer. When that conduct has been finalized at LAZ level, then the matter is closed. Follow the logic. If you…
JOHN SANGWA FOR PRESIDENT!!!!!!!!
Hahaha that is all I have to say about such nonsense articles. Useless clowns. You do not deserve a substantive comment when you throw such rubbish early in morning.
Sishuwa may be right or wrong but I do think he has presented his viewpoints across in an eloquent manner that would help us intelligently exchange opinions on this matter. Nonsense and rubbish are certainly not two words I would use to characterise his write up.
Hogwash!!
Even silly jibberish can be presented colorfully.
Just say that his s+up!d!ty has taken over your sense of reasoning, kwasila.
I have learned alot from the arrival. God bless the one who wrote. However other people are not fit to debate on such unpolitical items. To them once you analyse and try to reason with judicially then you are opposition. God help us from this cadreism type of life.
Always a joy to read Sishuwa’s articles! Well put.
He is above the law. You know who.
So law is about being feared not being respected bashimafumu bamu middle ages!
Abena Dr Kapasa Makasa Kasonde and Kainyo Zulu are *****s, no one in their right from if mind would expect these two baboons of comprehending great minds of the likes of Sishuwa and Sangwa. This time no more kuzizilika, kunya banee!
The judiciary is not lawless it has simply been sabotaged by the executive arm of Gov’t. The judiciary have been made to compromise by the executive. The judiciary is not independent it has been hijacked.
There is nothing like that in Zambia. You claims of sabotaging are unfounded.
If a ruling doesn’t go your way, it doesn’t mean then that you are at liberty to disgracing and disparaging your fellow professionals.
You are just ungovernables.
Sangwa is a silly Jealousy upndead goon.
Another breathe of fresh air from one Sishuwa. Right now Sishuwa is the voice of reason in Zambia and he sure is contributing to the development of this country, even though what he writes falls on deaf ears of these corrupt numskulls!
To you and me my brother and sister, Sishuwa’s articulate writings are targeted towards us, our conscience, to implore us to do something and not just sit idol and think things will resolve themselves.
It requires ‘woke’ citizens, vigilante citizens, sometimes sacrifice to bring about meaningful changes. No doubt our country is under siege from crooked elements who would do anything to cling on to power even if it means k!lling people along the way.
To the men and women in the uniform, the few good men and women in the judiciary; in parliament…
….To the men and women in the uniform, the few good men and women in the judiciary; in parliament… now is the time to stand up and be counted and make a positive contribution to stop this anarchy for the sake of posterity and your children’s children. What kind of Zambia do you want to leave behind for our future generations? You may think you can’t bring about positive change, but it takes individuals like yourself to make meaningful numbers that count. Stand up be counted… Lungu is just one individual and you hold the power to stop him. Lungu at your neighbouring countries who selflessly made a difference, Zimbwabwe (Mugabe – army, police;, parliament); Kenya (ConCourt); Malawi (ConCourt): etc. – you can draw strengths from that.
Thanks Sishuwa for your contributions mate…
Another breathe of fresh air from one Sishuwa. Right now Sishuwa is the voice of reason in Zambia and he sure is contributing to the development of this country, even though what he writes falls on deaf ears of these corrupt numsknlls!
To you and me my brother and sister, Sishuwa’s articulate writings are targeted towards us, our conscience, to implore us to do something and not just sit idol and think things will resolve themselves.
It requires ‘woke’ citizens, vigilante citizens, sometimes sacrifice to bring about meaningful changes. No doubt our country is under siege from crooked elements who would do anything to cling on to power even if it means k!lling people along the way.
To the men and women in the uniform, the few good men and women in the judiciary; in parliament…
KZ YOUR DAY IS COMING WHEN A CLOWN LIKE YOU WILL BE A LAUGHING STOCK
SANGWA WANTS TO TAKE SINGLE HANDEDLY THE ENTIRE BENCH. THIS IS VERY SAD. YOU CANNOT SUCCEED THAT WAY. YOU WANT TO OPPOSE A SYSTEM ON POLITICAL GROUNDS. THOSE JUDGES WILL DESCEND ON HIM LIKE A HEAP OF BRICKS. THEY WILL NOT ALLOW THEMSELVES TO BE SCANDALISED LIKE THAT.
PF surely destroying everything including the judiciary. The con court is unraveling and showing it’s true purpose which is not to serve the people but lungu. The rulings from that court have been nothing but mediocre. The ministers mock its ruling by not paying back the money. The people on the court are unqualified as noted and it’s spreading to the entire judiciary. Shameful for pf and their cadres who lack integrity all they know is trickery and crookedness that’s why seer1 wants his powers back