By Dr. Munyonzwe Hamalengwa
August 1, 2016
Can a Zambian judge be forced by the governing authorities to convict and sentence a political opponent? The newspapers have reported that a judge in DRC has revealed that she was forced by the Congolese government to convict and sentence exiled opposition leader Moise Katumbi to three years. You will recall that Katumbi was giving the Kabila government a run for their money and was poised reportedly to be on target to win the next election scheduled for December 2016. He was the only opposition leader who was credible to win the election. Kabila is prohibited by the constitution from running again but has done everything in his powers like all tin-pot dictators do to cling on to power despite what the constitution stipulates. The US Secretary of State has made trips there to dissuade the dictator from progressing with that destructive course. To no avail.
Katumbi was standing in the way of Kabila’s illegal and pre-planned constitutional violation. He had to be dealt with like all dictators do, his house was invaded without a warrant, false charges were laid and was forced to flee into exile. He was tried, convicted and sentenced in absentia. Now the judge has revealed that she was forced to do that by the government.
Could the Zambian government force a judge to convict and sentence a political opponent, not on the basis of utilizing the tools of impartiality and independence? By stating that she was forced to do what she did, the Judge is revealing that she would have behaved otherwise but for the force that was applied on her.
Now the importance of this subject is that rarely do judges openly reveal that they were forced to do this, to perpetrate an injustice. So this rare admission must be celebrated as a measure of judicial courage and we now know that judges can indeed be forced to come to a decision that they would otherwise not have made if they applied their own constitutionally provided lenses of judicial impartiality and independence.
No government has ever admitted forcing a judge to rule one way or another. But we can only infer from circumstantial evidence that a government has participated in warping justice partially. We know that where the government has eviscerated the rule of law like under apartheid in South Africa and elsewhere, the conditions are circumstantial evidence that some judges’ decisions in relation to political opponents of the regime like apartheid and elsewhere would not be independent or impartial. They would be circumstantially forced to do what the Congolese judge did. The question is, can this happen in Zambia? Is there evidence that such can happen in Zambia? This is a good research question.
Dr. Munyonzwe Hamalengwa teaches law at Zambian Open University School of Law and is the author of The Politics of Judicial Diversity and Transformation available at Planet Bookstore at Arcades.