Part I: Dining And Wining With Judges – Luncheon To Celebrate Removal Of Death Penalty

By Isaac Mwanza

“When the executive and the judiciary start singing from the same hymn book know that citizens are in trouble” ~ Jonas Zimba, Lawyer

INTRODUCTION

This series of four articles intends to provide reflections on four key issues that emerge from a luncheon hosted by Zambia’s President Hakainde Hichilema at State House in celebration of the removal of the death penalty from Zambia’s statutes. The four issues in chronological order are:

1. Judges of the superior courts celebrating the removal of death penalty;
2. The scales of justice in Zambia are balanced towards the rich and against the poor – sentiments of a President on ‘death row’;
3. Kudos for removal of death penalty attributed to the people whose opinions have been so divided; and
4. A lone Cabinet decision to decriminalise defamation of the President.

The articles are not intended to either criticise or praise the President or any arm of government but to provide advice which can be reflected upon when decision makers and planners make key decisions in future or plan similar events thereafter.

JUDGES OF SUPERIOR COURTS CELEBRATED REMOVAL OF DEATH PENALTY?

When I saw judges joining in the luncheon to celebrate the removal of the death penalty, my mind’s eye immediately peeped into the workings of the United States justice system, to see what the reaction of both the nine Judges of the Supreme Court of the United States, referred to by the acronym “SCOTUS”, and the American public in the event that President Joseph Biden invited the revered SCOTUS Judges to luncheon to celebrate the passing, by the US Senate, and his signing a law to codify abortion rights in all 50 States of the Union. Of course, such may never happen in the US for obvious reasons.

The issue of abortion in the United States, just like the repeal or abolition of the death penalty in Zambia, is a highly contentious issue among lawmakers and the citizenry, based on various considerations, legal, political and religious ideologies.

In Zambia, if a poll was to be taken today among members of professional bodies such as the Law Association of Zambia (LAZ) on whether death penalty should be abolished, it would show a divided opinion among legal practitioners but usually its the decision of the majority that take precedence. It is unknown though who the majority are in the case of the death penalty, but that is a story for the third series.

In a functioning democracy, however, the minority have a right to petition the Courts with a reasonable expectation that Judges do not have a position on matters brought before them for adjudication.

This is why, there is a 0.0001 percent chance that Judges of the SCOTUS will join the Executive in celebrating the passage of the law to make abortion legal in the United States, and it would actually be unfair for the Justice Department to send invitations to SCOTUS to join in the celebration by the Executive because the question will eventually require them to make a decision on the very question.

If asking questions is still permissible in Zambia, the question would be: how does one aggrieved with the decision to remove the death penalty expect Judges of the superior courts who, yesterday were celebrating the removal of death penalty at the luncheon, to fairly adjudicate disputes taken before them over the same matter? Impressions do matter here.

By joining in the celebrations at State House, the judges can be seen to have overtly taken a position on the matter.

I must state here, that I have utmost faith in the impartiality of the Judges of our Superior courts, especially that they have shown in some cases which are contentious that they can make decisions against the executive and hold their heads high.

The rare cases include when the High Court ruled against deportation of one Roy Clarke, an alien who is a long term resident of Zambia and overturning the decision by the National Assembly to sentence Dr. Fred M’membe, a person who inspired my childhood, Managing Editor Bright Mwape, and Columnist Lucy Sichone to indefinite imprisonment on 27th February, 1996.

The other cases in which our Judges made history was the striking out the charge of publication of false news with intent to cause fear and alarm to the public under Section 67 of the Penal Code which would have sent one McDonald Chipenzi, Daily Nation Managing Editor Richard Sakala, and reporter Simon Mwanza to spend 3 year in prison.

Our newly established Constitutional Court is also credited with a landmark decision which required judges to summon courage as custodians of the Constitution to rule against former Ministers on their continued stay in office following the dissolution of the National Assembly based on the ambiguous provision of the Constitution which the then Republican President, a man who had few months decorated them with appointments to the highest peoples’ court, could not be faulted for invoking.

However, it is my humble view that the decision to invite Judges to the dining table by and with the executive, who included the Attorney-General, Director of Public Prosecutions, representatives of investigative wings such as Anti-Corruption Commission, etc., to celebrate the passage of legislation, is of great concern and a worrying matter for many who litigate against the executive.

This joint celebrations paint the unfortunate picture that the judicial branch and executive branch are now “on the same page” or all singing from the same sheet and that this camaraderie between the two, may result in the judiciary being unwilling to hold their newly-found friends in the executive branch, to account as intended by our very Constitution.

There are currently a number of contentious matters before various Courts in which the Executive has shown some form of contempt against our courts. An example of such a matter is the issue of immunity granted to the former KCM Liquidator, Mr. Milingo Lungu, which is before our courts. Yet we have witnessed the Executive branch, through the new Director of Public Prosecutions, completely ignore court proceedings by tearing apart the immunity agreement which is in fact the subject of contention before the courts at this very moment.

How do litigants in such matters perceive the dining and wining between judges and the executive?

Cabinet Office must avoid the temptation of inviting judges to attend events that celebrate decisions made by either the Executive or the Legislature on contentious matters that are likely to land back in courts for adjudication.

Our judges are the last line of defence against legislative or executive encroachment on our rights as citizens and it is a very worrying scenario when we witness this camaraderie between our governors with our judges, to whom aggrieved citizens must go for succour and whose impartiality on any topic must never be perceived, let alone seen, to be compromised when we witness our judges being wined and dined by the executive.

It is an adulterous relationship – adulterous in the sense that judicial independence may indeed be adulterated by an unwelcome friendship between our governors and the ultimate protector of our rights, namely, the courts.

CONCLUSION

In future, it is important for Cabinet Office to learn from other countries on who they should invite to such celebrations. If such similar celebrations on signing a law to codify abortion rights or abolish the death penalty or enactment of laws to protect the practice of homosexuality in the US was to be hosted by the US President Joe Biden, it certainly would not involve judges of the SCOTUS, or the heads of the investigative and prosecutorial organs of the federal state but would have targeted family members whose loved one had been on death row or some specific community that has a cause to celebrate. I am sure the SCOTUS judges would themselves have decided not to attend the celebration.

[First Published by the Daily Nation. 2022]