By Fred M’membe
It is becoming clear that the issue of Mr Edgar Lungu’s third term eligibility will have to be decided by the Constitutional Court. It seems Mr Lungu, in his usual character of not backing down on anything he wants, will file in nomination papers with the Chief Justice to have his name on the ballot paper. I say this because huge volumes of campaign materials with his name have started flowing in. It won’t be easy to change this – the cost of doing so will be gigantic. And last minute presidential candidate changes will throw his party into a quandary.
But one wonders where this apparently assured confidence is coming from. The risk is too high to ignore. This means that those determined to stop him from contesting next year’s elections in the belief that it will be a violation of the Constitution will have no choice but to go to the Constitutional Court.
Mr Lungu who says the Constitutional Court cleared him to stand must be ready for this. And, indeed, he seems to be ready, confident and assured all will go his way.
Moreover, all the judges of the Constitutional Court were appointed by him. In 2016, this Constitutional Court came under heavy public criticism over the manner it had ended the election petition against him. And even the court itself was divided over that matter. These are the same Constitutional Court judges who will have to determine Mr Lungu’s presidential candidature in next year’s elections!
Do legitimate issues of public trust, confidence in the Constitutional Court over this matter arise?
All I can say is that an independent and efficient judiciary will be crucial to ensuring that the promises, fundamental values and principles enshrined in the Constitution of Zambia are upheld.
Without an independent judiciary, the Constitution would be reduced to a statement of empty promises.
Every institution has its moments of glory and challenge. The present are moments of challenge when courts have an accentuated duty to become conscious of Constitutional provisions when those in power begin to seek unending dominion. True to their oaths of office, judges must act without fear, favour, affection or ill will, for without an independent judiciary, the Constitution is little more than a statement of empty promises. The democratic credentials of our courts depend on the premise that all individuals are free and equal.
Society will always have someone who will try to manipulate the law to the detriment of society. The solution lies in an ordered, principled and just adjudication. Our judiciary was ultimately trusted with the most important task of all i.e. ensuring that terms of the settlement, or the Constitution, were not breached.
The Constitutional Court is the final interpreter of the Constitution. Together with the Supreme Court, the Court of Appeal and High Courts are tasked with the highest duty: checking the actions of both the executive and the legislature, each of whom are bound by the Constitution. Considering the enormity of this responsibility, insulating the courts ought to have been a matter of Constitutional design. No court can be expected to perform its checking functions with interference from other branches of Government.
Judicial power should never be a facilitator for executive intentions. On the contrary, it has to be an interrogator or scrutineer of executive power.
These are definitive moments when our courts need to reflect upon their own trajectory, their moral alignments and, most importantly, their duty to enhance hope. This is because our Constitution is supposed to be a document of hope.
Initially, we all hoped that Mr Lungu would do the right thing. With Mr Lungu’s insistence on contesting next year’s presidential elections, now it all rests on the hope that judges of the Constitutional Court would do the right thing.