When final courts get it wrong: A selection of cases and lessons to be learnt
By Prof. Munyonzwe Hamalengwa
THIS article gives a section of examples of wrong decisions that have been made by the final courts in various jurisdictions. This is simply a restatement of the fact that because the highest courts in the land with original or final jurisdiction have made a decision, do not necessarily make decisions that are unassailably correct.
Our Supreme Court has already discussed in many decisions that a final decision of the apex court can be set aside, varied or repealed etc on any number of reasons including in the interests of justice or to correct an injustice.  The decisions in Danny Pule, Kabalasa and Busenga are examples of wrong decisions.
Danny Pule and progeny was set aside on December 10, 2024 in the Chizombe case by the Constitutional Court of Zambia. It is my opinion that the cases of Margaret Mwanakatwe and Nkandu Luo were also wrongly decided. The discussion of those cases is perhaps for another day.
Some examples of wrong decisions from final courts are clear cut while others are merely circumstantial that the judiciary knew they were making a politically correct or troubled decision but they went ahead anyway. Decisions of any court including the final courts are precedents and must be respected and followed as long as they have not been overturned. But they are not shielded from criticism should there be cause for criticism and commentary.
Here are a few examples among many others of wrong decisions by apex courts that support my arguments in this article. A retired Ugandan Chief Justice, Chief Justice Kanyeihamba confessed after his retirement that one Presidential election petition that favoured President Yoweri Kaguta Museveni was incorrectly decided. He only confessed after his retirement. Consider why he disclosed it instead of keeping quiet about it. Now consider judges who never confess and how many they may be.
Consider also that the confession by the Chief Justice of Uganda dealt with a presidential election petition, a much criticized genre of jurisprudence in Africa until the Kenyan and Malawian final courts of jurisdiction broke the siege of judicial captivity in that no man’s land of judicial experience. Museveni is still in power five decades later bailed out by the judiciary election after election and attendant presidential election petitions after another.
The whole world except the apex judiciary in Uganda knows that the Ugandan elections are never free and fair but are a cesspool of rigging and violence. The former Chief Justice had to confess that one of those Presidential election petitions was incorrectly decided.
Do you think it is only one incorrectly decided Presidential election petition in Uganda? How about the whole of Africa since 1960? The Ugandan example is quite instructive and illustrative and I posit that it is of general application in Africa.
In Kenya in the 2013 Presidential election petition, the Supreme Court of Kenya went on in dismissing the petition to cite wrong foreign decisions of election petitions. Do you think the court didn’t know what it was doing?
That the court was deliberately making a wrong decision by among others citing wrong decisions from different jurisdictions. Relying on a wrong decision among others could be a ground for setting aside the decision or judgment except that this one was made by an apex court.
This court is the least transparent and accountable and its wrong decisions can endure forever because there is no appeal from its wrong decisions unless it self corrects itself. Other levels of courts cannot make wrong decisions with impunity because of the power of appeal.
Across in the Democratic Republic of the Congo (DRC), the Court of Appeal recently quashed the conviction of an opposition leader upon being informed by the lower court that that lower court had convicted the opposition leader because of the pressure exerted on it by the Kabila government that used the conviction to knockout the opposition leader from challenging Kabila in the election of 2019. Obviously the court had made the wrong decision. Indeed the court was pressured but the point is that courts make wrong decisions, especially when it relates to election politics petitions but not exclusive to that genre
In Cameroun, the Chief Justice was built a big mansion by the government after he declared President Biya the winner in a contested presidential election petition in the previous election. This was a promised bribe and decisions of such nature are fundamentally tainted and offer circumstantial evidence that they are wrong ab initio. Old man Biya was recently reelected as President. And he has been President since 1982.
Closer home, the Supreme Court of Zambia it turns out made the wrong decision in the Mazoka Presidential election petition of 2002 (decided in 2004) by dismissing that petition because after that dismissal, President Chiluba confessed to Shaka Ssali of then Voice of Africa in Washington DC that he, Chiluba had rigged the election which Mazoka had won but was cheated out of claiming.
Shake Ssali remained on VOA for many years thereafter. Had Chiluba not confessed on international television, we would never have known that the election was rigged and consequently that the Supreme Court decision dismissing the petition, was wrong.  I watched the broadcast when Shaka Ssali informed the audience what Chiluba had told him.
The decisions of final courts are therefore not necessarily always correct. This is not a hypothesis.
The United States Supreme Court Presidential election petition decision in Bush versus Gore of 2000 was wrongly decided and we can only tell from circumstantial evidence that the court knew the decision was wrong when it stated that that decision should never be used as a precedent in election petitions in the future.
When did any final court limit the use of its own decision no matter how generic the case maybe? Professor Alan Dershowitz in his book, “Supreme Injustice” showed by cogent analysis that the majority justices took positions, which were contrary to all their previous positions on related cases or cases raising similar issues.
The Supreme Court of the United States reversed itself in 1988 in the Japanese internment cases decided in 1942 on the basis that those cases were wrongly decided because of political pressure at the time. In previous articles, we have written about conditions that make overturning of precedents, possible, including the new composition of the judiciary. The point of the present article is different. Its point is that the judiciary made a wrong decision independent of any issues of judicial dissent or other issues but the judiciary knew it was making a wrong decision but went ahead and made it anyway. Or the judiciary knew circumstantially that it was a wrong decision they were making.
In Zambia, there was a case when the Supreme Court found that President Sata was within his powers to convoke the Chikopa Tribunal to investigate the dismissal of some Supreme Court justices but then the Supreme Court recommended that he should not reconstitute the Tribunal. This case is so well known it does not need elaboration.
If the justices were comfortable with its decision that Sata was within his powers to convoke the Chikopa Tribunal, why did it then recommend the opposite? And without saying anything more to elaborate thereby raising circumstantial evidence that there is more going on than meets the eye. The Chikopa Tribunal was never reconstituted and is now history
But let’s not digress. These are wrong decisions. Courts of all hierarchical levels make wrong decisions from time to time not only in election petitions but even in other areas like criminal law.
In Canada, the US, England, Israel and elsewhere, you have read cases of wrongful convictions which were finally even dismissed by the Supreme Courts of these countries on appeal as demonstrating no merit and that the convictions were proper. The convicts continued to fight until decades later, DNA evidence or confessions of real killers exonerated the wrongfully convicted. Some died in prison before exoneration but lawyers and relatives continued fighting.
Wrongful convicted cases in England include the Birmingham Six and others; in Canada you have Steven Truscott, Guy Paul Morin, David Milgaard, Donald Marshall and others; in the US every year unearths documented cases of wrongfully convicted, especially of Black men some of whom spent 20, 30 40 50 and 60 years in prison for crimes they did not commit. The Supreme Courts would have all rejected the appeals.
The blame usually lies on the machinations of the police and prosecutors, sometimes aided by injudicious or incompetent judges. There are books on these issues. Johnnie Cochran, a famed US Attorney of the O.J Simpson case fame used to say that in America you would be lucky to meet a judge who knows and has read the Constitution. He was exaggerating to make a point. This point applies more to judges and Presidential election petitions where judges butcher the Constitution to save a preferred candidate to the extent that they even dictate that their decision should never be used as a precedent in future or where judges apply the new constitution retroactively or judges using wrong precedents or judges rephrasing questions to compote with their predetermined calculus. And then use their previous decisions as binding precedents. Final courts do make wrong decisions and bad decisions create bad precedents.
The silver lining is that a defeat in a court of law through a wrong decision does not mean a defeat in the court of public opinion. A defeat in a court of law can be a win in the court of public opinion. When the Chief Justice of the US wrote a majority decision in 1857 in the Dred Scott case upholding slavery, there was a firestorm of criticism and s groundswell of support against slavery that Abraham Lincoln, a perpetual loser in Presidential and congressional elections since the 1830s, capitalised on to propel himself to the Presidency in 1860.
Civil Rights reconstruction of the 1860s and 1870s were the reverberations of the unpopular Dred Scott decision of 1857, which had held that a Black person was not a human being and had no rights that a white person could recognise and respect. The 14th Amendment to the US Constitution of 1869 guaranteeing rights to all Americans was born from the womb of dreaded Dred Scott decision of Chief Justice Roger Tunney.
Courts can be the most reactionary institutions of the law and they are most dangerous when they collude with the powers that be in society, especially in Presidential election petitions when courts of justice can become courts of injustice or when courts of justice become tools of oppression and repression.
When the final courts make a wrong decision, legal positivists recommend forgetting and moving on. If people forgot and moved on, slavery, colonialism and apartheid would still be in existence. I have written about this severally. We would still be governed by wrong decisions of the final courts of slavery, colonialism and apartheid that held that the constitutional provisions don’t matter, that it is okay to be discriminated against, that injustice is okay. People didn’t lay down their weapons to fight wrong and unconstitutional decisions of the apex courts
Law is the continuation of politics by other means. All judicial decisions must be carefully analyzed in case they are inherently wrong. Justice must fight injustice.
Prof. Munyonzwe Hamalengwa specialises on justice and the judiciary. He is the author of The Politics of Judicial Diversity and Transformation as well as Commentaries on the Laws of Zambia
