Can Zambia have both the best Constitution and the best Judiciary?: Part 1, 2011 to 2021 debates
By Professor Munyonzwe Hamalengwa
THIS is a summary of the debates on the above topic between 2011 and 2021. In Part 11, I will deal with the same topic post 2021 elections as the topic of constitutional amendments was ignited anew and the judiciary continued to be designed and redesigned. The following article was first published in 2020 and is sportingly edited. Part 11 will be a brand new article written post-election of 2021.
Which is preferable if you can’t have both: The best constitution in the world or the best judiciary? Solomonic wisdom is required to answer this question. Zambia provides Exhibit 1 concerning this hypothetical conundrum.
At a public forum on the then controversial Bill 10 of 2019 at Intercontinental Hotel in Lusaka on January 17th, 2019, Constitutional Lawyer John Sangwa State Counsel (SC) submitted that the Constitution of Zambia as amended in 2016 was the best Constitution Zambia has had so far. He also at some point stated if I heard him correctly that in Constitutional matters, Zambia’s Judiciary was a letdown.
This sent me thinking: which was preferable, the best Constitution or the best Judiciary? Can you have both? What are the yardsticks for measuring what is the best? Now both of the raw material (Constitution and Judiciary) John Sangwa SC was talking about were brought about by the same regime of President Edgar Chagwa Lungu. Was there a catch somewhere if we accept Sangwa SC’s evaluation of these institutions? Was one designed to defeat the other? Checkmate?
In the midst of this catch 22 Armageddon, the same government that gave us the best Constitution and Sangwa’s questionable constitution-interpreting Judiciary a mere three years before, had proposed to decimate through Bill 10, that very best constitution despite its having served the regime very well because of the Judiciary that the same regime had set up. The regime could conceivably have continued to survive through this checkmated calculus. What was the problem? Things seemed to be working well for the 2011-2021 regime.
The opposition to Bill 10 as articulated by Sangwa and others at the Forum was among others that the government simply wanted to win an election by summoning through this process the long dead one party dictatorship. The same arguments would be repeated in the debates on Constitutional amendments post 2021 elections pertaining to the upcoming 2026 elections. These debates seem to reoccur every pre-election in Zambia.
This article analyses how the “best” Constitution was brought about and how the alleged less than sanguine Constitutional Judiciary was assembled. We will meet Sangwa again down the stretch. What is the trajectory of the current Zambian Judiciary that Sangwa has so evaluated and which in fact was mostly the handwork of President Edgar Lungu during the 2011 to 2021 period? This was Lungu’s Judiciary. Just as Lungu according to Sangwa, gave us the best Constitution to date (2011 to 2021) through transformation of the old one, so had he transformed the Zambian judicial system and Judiciary more than any other Zambian President. Presidents design or attempt to design the Judiciary in their own image. What kind of Judiciary had Lungu designed or attempted to design for Zambia? Thou shall know them by their fruits. So simple. A bit of history is in order to set the stage for the then current state of the Judiciary. President Kenneth Kaunda was hamstrung and straitjacketed into maintaining the colonial Judiciary when he assumed full Presidential powers in 1964 because of the paucity or absolute absence of indigenous Zambians to assume judicial posts. He had no choice but to continue with the existing Judiciary until about the Mid-70s and later when Zambian-born judges became available. Kaunda never tampered with the judicial hierarchy as it then existed except a few renaming of a court here and there. Like every president, he appointed judges of his liking but few if any, complained of the judge’s qualifications to perform their duties. Of course I stand to be corrected. Unlike other countries, there is no book on Zambia’s Judiciary, so information is thin.Presidents Frederick Chiluba, Levy Mwanawasa and Rupiah Banda left the judicial institution and Judiciary more or less as they found them. Questions of course about judicial autonomy and independence have always arisen under all presidents. But these questions existed within the inherited and existing Judiciary and judicial system. President Michael Sata began to deviate from the known arrangements by removing a Chief Justice and appointing an Acting Chief Justice as well as an Acting Deputy Chief Justice. The Acting Chief Justice and her Acting Deputy became more or less permanent in that role of Acting and the status quo remained so during Sata’s tenure. A lot of tension was exhibited during that time including litigation by the Law Association of Zambia (LAZ) concerning the tenure of the Acting Chief Justice. Sata even instituted the Chikopa Tribunal to remove sitting judges, something that had never happened before. Then came President Lungu who somewhat completely overhauled the entire judicial system, judicial hierarchies and Judiciary. His remake was either revolutionary or counter-revolutionary. And that is where you the reader come in for your own independent assessment. John Sangwa has partially pointed out his evaluation. I just provide the following indisputable facts as follows, sprinkled with my own interpretations and opinions. The late Justice Irene Mambilima declared Lungu as the victor by 27,000 votes over opposition leader Hakainde Hichilema in the January 2015 Presidential by-election necessitated by the death of President Michael Sata. Shortly after Lungu was sworn in, he appointed Justice Mambilima as Chief Justice of Zambia, removing the then permanent Acting Chief Justice Madam Lombe Chibesakunda. I wrote an article at the time questioning the optics being beamed about appointing as Chief Justice someone who had just declared you a victor in a heavily contested election in which the declared President could have lost given the narrowness of the margin of victory. There was then no Constitutional Court. The Presidential term limit was two terms. The next election would be in 16 months and you would already have served one term as the Constitution stipulated at that time. Was the President building a judicial architectural foundation for his protection in case there would be future contested election results petitions? And that 16 months in power constituted a full term? Flash to the future. President Lungu was later heard in a tape recording stating something like, “we didn’t get the vote in 2015 and 2016 but we are still here. If we lose in 2021, we won’t move out” or words to that effect. I had speculated whether Lungu was positioning himself to beat any judicial challenge to the election outcome of 2016 by redesigning the Judiciary. Speculations, informed as they maybe are not facts. Everybody knows the results of the 2016 Presidential Election Petition under the new judicial hierarch of the new Constitutional Court. Was I too far off the mark or did I hit the bull’s eye? In the same breath as the appointment of Chief Justice Mambilima and removal of Acting Chief Justice Chibesakunda, an appointee of President Sata, came the steps to remove the Director of Public Prosecutions (DPP) Mutembo Nchito, an appointee of Sata, and a person who was seen to be fighting corruption. The background information as to why and to what eventually led to the removal of Nchito was debated through litigation. The reasons for the decision of the Tribunal to remove him are not in any publicly available transparent format. It is in the hands of the Constitutional Court, a total creature of Lungu. No pun intended. Let’s digress and talk about the Constitution. Sata did not fulfill the campaign promise of bringing a new Constitution in 90 days. The atmosphere was that the PF was going to lose the 2016 elections if the PF did not design and bring in a new Constitution. It fell on Lungu to design through amendments a new Constitution through which he fundamentally changed the judicial system and Judiciary by inserting the creation of a Court of Appeal and the Constitutional Court (ConCourt), the latter to adjudicate only constitutional issues. . The creation of the Court of Appeal and Constitutional Court and other courts gave Lungu an unprecedented opportunity (not available to Kaunda, Chiluba, Mwanawasa, Banda, Sata) to appoint old or entirely new judges after his image and a parliament in which he held the majority, to the Judiciary. Most commentaries have focused on the appointments to the Constitutional Court whose judges could make or remake politics and political leaders, by Constitutional interpretation or misinterpretation. Lawyer John Sangwa SC, wrote a widely often quoted scathing article about the lack of qualifications of most of the soon to-be appointed judges of the Constitutional Court, a song that continued to be sang post 2021 elections . At the Forum on January 17, 2020, Sangwa’s opinion hadn’t changed, four years later. Starting with the dismissal of the injunction on Ministers staying in office, the handling of the Presidential Election Petition of 2016, the election petitions cases in Munali and Lusaka Central to the decision on whether or not President Lungu was eligible to run for a third time in 2021 tell their own stories about Sangwa’s and also Dr. Sishuwa Sishuwa, Prof.Michelo Hansungule and Prof, Muna Ndulo’s analyses of the predilections of the Judiciary and the Constitution designed by Lungu. Was this the best Constitution Zambia ever had? Was this a good Judiciary Zambia could have? The decision to repose Constitutional matters in a new Constitutional Court when there was already an experienced court and justices in the Supreme Court of Zambia was suspect. The design to create two equivalent apex courts is unprecedented. Everywhere else there is only one apex court, the Supreme Court (US, Canada, India, Kenya, Britain etc) or Constitutional Court (South Africa, Angola etc) to which all cases constitutional or otherwise, end. The Constitutional Court was supposed to have 13 judges, but only 6 were appointed in 2016 and the seventh was only appointed towards the end of 2017 ( two years later) when Lungu’s eligibility to run for office a third time was about to be decided. A motion was made to include the newly appointed judge in the decision-making process, unprecedented anywhere else to make such a move. The seventh Judge was allowed in. It is still fresh how this was done. Lungu continued to design his Judiciary just as Donald Trump was doing in the United States (US) with Trump openly gloating over the Pyramid that he had created or was creating. . Was Lungu privately gloating? Since the seventh Justice was appointed in Zambia there were no steps taken to appoint the rest to a full complement of 13 until later. You could only speculate as to why. The ConCourt was overworked and it was failing to render timely judgments. The new amended Constitution itself was adjudged by the very regime that created it, to be a disaster. They clearly were not in agreement with Sangwa SC that this was the best Constitution ever in Zambia. Their best Constitution was one that gives their President more executive powers, hence Bill 10 of 2019. But the President had said that he could sign the 2016 amended Constitution with his eyes closed because it was so good and he did, despite the cautioning by Army Brigadier General Miyanda not to do so. Was the President economical with the truth? Was it an election game- changer because he knew he had fixed the Judiciary? Was it a gimmick? The then Minister of Justice Given Lubinda began to campaign after the election victory of 2016 that there were so much lacunae in the Constitution that it needed to be amended. But Bill 10 hardly addressed many of the purported lacunae. The debate continued post 2021 elections but only after a passage of time and only towards the approach to the 2026 elections. What was going on here? The government of Edgar Lungu with Bill 10 was removing what Sangwa had called the best Constitution Zambia has ever had and the government was seeing a problem with the very best Constitution that they gave birth to by attempting to give us the worst Constitution in Zambia’s history.
It is unprecedented that a government that has succeeded in amending the Constitution seeks to fundamentally make further amendments shortly after having made and enacted fundamental amendments. Meanwhile, the Bill of Rights is contained in an unamended Constitution, 1996. This government did not touch that aspect. Our Constitution is like a coat of many colours. Our constitution was tampered with in a hurry for purposes of winning an election in 2016. It was being tampered with again to win an election of 2021, now with powers to extinguish whatever was remaining of the independent power of the Judiciary. I posit that our judicial system and Judiciary were redesigned to win an election and to stay in power by the impugned regime. The saga continues: can we have both the best Constitution and the best Judiciary? We the People now have to participate in finding the solution and we the people can be trusted to come up with Solomonic wisdom.
Part 11 will continue the debate pertaining to the post 2021 elections Constitutional amendments politics Can Zambia have both the best Constitution and the best Judiciary? Or which is better if Zambia can’t have both? To have the best Constitution or to have the best Judiciary?
Prof Munyonzwe Hamalengwa is the Dean of the School of Law at Zambian Open University and is the author of “The Politics of Judicial Diversity and Transformation”, and “Commentaries on the Laws of Zambia” among other works.
