The Constitutional Court Speaketh

Dr. Munyonzwe Hamalengwa

Though the  issue that  the Constitutional Court was grappling with regarding whether Ministers and Deputies’ continued serving as Ministers after the dissolution of parliament was constitutional, and quite simple as a matter of constitutional law, the decision is worth celebrating. It is one of the most important decisions in Zambia’s constitutional history. The decision given the usual judicial deference to the executive and parliament could have gone the other way. The judiciary in Africa is usually reticent in ruling against the executive. They could have deliberately mangled the decision or found a way to say the same thing but in a very lame way so that the President, who had stated that he believed that he was right that the ministers and deputies could continue, would not be embarrassed.

Take the decision of the Supreme Court of Zambia in the Chikopa Tribunal case. The Court stated that the President, namely Sata at the time was within his jurisdiction to constitute the Tribunal but then the Court inserted the last sentence which stated that the Court hoped that the President would not go through with it, meaning the Tribunal. The Court was very uncomfortable with the decision. If the President was right, why should he not go through with his decision? Some scholars believed that the decision was outright wrong and the Court was trying to send signals of its troubled nature and appease those in the know. Some of these issues sometimes only become fully exposed in autobiographies or biographies if at all. Only problem is that African Judges do not write autobiographies, something very common in the USA, Britain, Australia and Canada.

Take also the decision of the US Supreme Court in the case of Gore versus Bush. The majority conservative judges sided with Bush and their decision made him President. However, that same conservative majority inserted something that is never seen in constitutional jurisprudence. It stated that it’s own majority decision must never be used as a precedent, because it was so unique on its facts and circumstances. Alan Dershowitz of Harvard Law School, in his book, Supreme Injustice, based on that case stated that the case was clearly wrong, politically motivated and the conservative judges didn’t want this wrong decision to ever be used in future to advantage the opposite side of their ideological spectrum.

The point here is that Court decisions must never be taken for granted, especially cases that are politically laden. When you get a decision like the one on the Ministers and Deputies Ministers’s continued stay in office, you must celebrate them. Judges don’t normally like to bite the hand that feeds them, despite their security of tenure, supposed judicial independence and all the power  trappings. They still have to meet the leaders at state functions and our leaders usually have thin skins, the egos are easily bruised. Some politicians throw temper tantrums at the judges. The judges still have to consider the political repercussions of the moment and those in lower courts still pine for promotions and higher status and those not already Chief Justices still dream of promotions to the Chief Justice’ chair.  Judges are still subject to the whims of the market place like the rest of us. See Richard Posner, et al, The Behaviour of Federal Judges and also Richard Posner, How Judges Think, and Munyonzwe Hamalengwa, The Politics of Judicial Diversity and Transformation (found at Planet Books at Arcades).

The Zambian papers report that the President and the PF have said that they will respect the decision, as if they had a choice. This is not a Tribunal like the Tax Appeals Tribunal that the government can easily ignore. There are legal and political repercussions in disobeying a Constitutional Court or a Supreme Court order or any Court order. There should also be consequences for disobeying a Tribunal order. Stating that they respect and will abide by the decision indicates that they believe they have an alternative. There is no appeal of this decision. Not respecting the rule of law would have legal and political consequences in an election year. Or any year for that matter.

2016 is truly a year of new beginnings. There is the amended new constitution. There is the new Court of Appeal. There is a new Constitutional Court. There is a new revolutionary decision by our new Constitutional Court. There will be a new constellation of government whoever wins the election of August 11, 2016.

There is new hope in this new Constitutional Court. Without an impartial, autonomous, strong minded and independent judiciary, there can be no true democracy,  especially in the absence of a free press but in the presence of a conscripted press. Having started on a dynamic footing, this Constitutional Court should emulate continuously the Constitutional Court of South Africa in which so many people have hope given the continuous tenuous political landscape there and in Zambia.

Dr. Munyonzwe Hamalengwa teaches law at the School of Law, Zambian Open University and is the author of The Politics of Judicial Diversity and Transformation.