The Implications of the amended Constitution and Judiciary in Zambia
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Supreme court
Dr Munyonzwe Hamalengwa
By Dr. Munyonzwe Hamalengwa
Most promises of constitutional reform sound positive until the question is asked as to which forces and interest groups will superintend over this reform process and why do those forces want the constitution reformed? If any unbiased mind examines any constitution, it will be discerned that the constitution is tilted in favour of the dominant power in the coalition that drafted the constitution. This is elementary information that requires no debate.
If anyone has any doubt about the above, ask yourself why there is always so much debate and no action about the modalities of passing the constitution? The constitution is a severe terrain of struggle, in fact it is second only to the election phase in a democracy.
Third in line in terms of the terrain of political struggle for supremacy is the selection and appointment of judges. Judges could be the silent imprimaturs of the status quo ante. You have heard of the stalemate in the US where the Republican Opposition does not want President Barack Obama to appoint a replacement of a deceased Supreme Court Judge. The new judge would tilt the power against Republican causes. Judges are political players, at least in the United States that is recognized. In other countries, it is the best kept secret.
The Zambian constitution has never truly been overhauled since the abolishment of the multi-party democratic system in 1972. What has been happening since that time has merely been strategic constitutional amendments to accord with bonapartist politics which is that the ruling party has not been strong enough to impose its full will on the opposition and the opposition has not been strong enough to overwhelm the ruling party and impose its own constitutional vehicle. There is of course slight victory to one side. It is never a complete stalemate.
The recent constitutional amendment has been a very clever and momentous coup de tat by the ruling party. The ruling party after promising to bring in a new constitution through a referendum, of course did not do so. They then engineered a self-serving document which has already been commented on and analyzed by able minds. This amended constitution is a trap for the opposition. This amended constitution will ensure that the ruling party will continue to rule beyond the next election if the election result is in doubt and it has to be decided by the judiciary.
This is how the politics of this constitution will likely play out. The 50 plus will likely not bring out an outright victor. There will likely be allegations of fraud and rigging. There will be a rerun which will be contested as having been rigged as well. The amended constitution has created a constitutional court which has the only jurisdiction to decide contested election results. There was no such court before.
The Judges of the constitutional court were hand picked by the President after some application of sorts. One newspaper had an article which stated that the Deputy Head of the Constitutional Court is the same Judge who enabled President Edgar Chagwa Lungu to ascend to the Presidency. This was pay back time. That article raised the possibility that such a Judge cannot let President Lungu lose if the August 11, 2016 election result ends up at the Constitutional Court.
Even before this appointment, President Lungu had already buffered himself in case any election result ended up in the Supreme Court of Zambia by having had appointed Chief Justice Irene Mambilima as Chief Justice from being the Head of the Electoral Commission of Zambia, a Commission that had recently declared Lungu as President. The elephant in the room had been discussed that even without the amendment of the constitution and the appointment of new judges to the constitutional court, Lungu had already taken care of business by his appointment of Mambilima. Having been appointed as Chief Justice by Lungu, could Mambilima let Lungu down by annulling any contested results? This hasn’t happened anywhere else in the world. In crucial cases like presidential election contents, the merits of any challenge goes out the window. It is the law of politics and the politics of law at the same time.
Regarding the new judges of the constitutional court, State Counsel John Sangwa had written in the Post recently that all the judges that had been identified, do not meet the criteria stipulated in the constitution for appointment. That submission was wholly ignored and never debated. Did it have merit or not? Was the constitution ignored in the selection of the Judges of the new Constitutional Court? What are the implications of ignoring constitutional stipulations in the selection of Constitutional Court judges? Is this the harbinger of what to expect of the new Constitutional Court which according to Sangwa’s analysis, will be populated by illegitimate personages?
Are these judges appointed in such a manner despite their personal integrity, which is beside the point here, it is about qualification as stipulated by the highest law of the land, able to destroy the person who appointed them, if the election results were to be contested? Your guess is as good as mine.
Look also at the timing of this amended constitution! It was due as promised sometime at least in 2012. It only became operational in January 2016, four years late and only 8 months before the election with new constitutional court judges who have just been appointed and whose first election disputed cases will be their first such cases since they were appointed as Judges. Who do you think has already struck the constitutional and judicial Gold Medal?
Dr. Munyonzwe Hamalengwa practiced law in Toronto for 25 years. He is the Compiler of a new book entitled, THE CASE AGAINST TRIBALISM IN ZAMBIA (2016). This book can be found at Planet Books at Arcades.
The Implications of the amended Constitution and Judiciary in Zambia
Supreme court
Dr Munyonzwe Hamalengwa
By Dr. Munyonzwe Hamalengwa
Most promises of constitutional reform sound positive until the question is asked as to which forces and interest groups will superintend over this reform process and why do those forces want the constitution reformed? If any unbiased mind examines any constitution, it will be discerned that the constitution is tilted in favour of the dominant power in the coalition that drafted the constitution. This is elementary information that requires no debate.
If anyone has any doubt about the above, ask yourself why there is always so much debate and no action about the modalities of passing the constitution? The constitution is a severe terrain of struggle, in fact it is second only to the election phase in a democracy.
Third in line in terms of the terrain of political struggle for supremacy is the selection and appointment of judges. Judges could be the silent imprimaturs of the status quo ante. You have heard of the stalemate in the US where the Republican Opposition does not want President Barack Obama to appoint a replacement of a deceased Supreme Court Judge. The new judge would tilt the power against Republican causes. Judges are political players, at least in the United States that is recognized. In other countries, it is the best kept secret.
The Zambian constitution has never truly been overhauled since the abolishment of the multi-party democratic system in 1972. What has been happening since that time has merely been strategic constitutional amendments to accord with bonapartist politics which is that the ruling party has not been strong enough to impose its full will on the opposition and the opposition has not been strong enough to overwhelm the ruling party and impose its own constitutional vehicle. There is of course slight victory to one side. It is never a complete stalemate.
The recent constitutional amendment has been a very clever and momentous coup de tat by the ruling party. The ruling party after promising to bring in a new constitution through a referendum, of course did not do so. They then engineered a self-serving document which has already been commented on and analyzed by able minds. This amended constitution is a trap for the opposition. This amended constitution will ensure that the ruling party will continue to rule beyond the next election if the election result is in doubt and it has to be decided by the judiciary.
This is how the politics of this constitution will likely play out. The 50 plus will likely not bring out an outright victor. There will likely be allegations of fraud and rigging. There will be a rerun which will be contested as having been rigged as well. The amended constitution has created a constitutional court which has the only jurisdiction to decide contested election results. There was no such court before.
The Judges of the constitutional court were hand picked by the President after some application of sorts. One newspaper had an article which stated that the Deputy Head of the Constitutional Court is the same Judge who enabled President Edgar Chagwa Lungu to ascend to the Presidency. This was pay back time. That article raised the possibility that such a Judge cannot let President Lungu lose if the August 11, 2016 election result ends up at the Constitutional Court.
Even before this appointment, President Lungu had already buffered himself in case any election result ended up in the Supreme Court of Zambia by having had appointed Chief Justice Irene Mambilima as Chief Justice from being the Head of the Electoral Commission of Zambia, a Commission that had recently declared Lungu as President. The elephant in the room had been discussed that even without the amendment of the constitution and the appointment of new judges to the constitutional court, Lungu had already taken care of business by his appointment of Mambilima. Having been appointed as Chief Justice by Lungu, could Mambilima let Lungu down by annulling any contested results? This hasn’t happened anywhere else in the world. In crucial cases like presidential election contents, the merits of any challenge goes out the window. It is the law of politics and the politics of law at the same time.
Regarding the new judges of the constitutional court, State Counsel John Sangwa had written in the Post recently that all the judges that had been identified, do not meet the criteria stipulated in the constitution for appointment. That submission was wholly ignored and never debated. Did it have merit or not? Was the constitution ignored in the selection of the Judges of the new Constitutional Court? What are the implications of ignoring constitutional stipulations in the selection of Constitutional Court judges? Is this the harbinger of what to expect of the new Constitutional Court which according to Sangwa’s analysis, will be populated by illegitimate personages?
Are these judges appointed in such a manner despite their personal integrity, which is beside the point here, it is about qualification as stipulated by the highest law of the land, able to destroy the person who appointed them, if the election results were to be contested? Your guess is as good as mine.
Look also at the timing of this amended constitution! It was due as promised sometime at least in 2012. It only became operational in January 2016, four years late and only 8 months before the election with new constitutional court judges who have just been appointed and whose first election disputed cases will be their first such cases since they were appointed as Judges. Who do you think has already struck the constitutional and judicial Gold Medal?
Dr. Munyonzwe Hamalengwa practiced law in Toronto for 25 years. He is the Compiler of a new book entitled, THE CASE AGAINST TRIBALISM IN ZAMBIA (2016). This book can be found at Planet Books at Arcades.
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