The Judiciary speaking legal truth to political and economic power: Selected judgments.

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By Dr. Munyonzwe Hamalengwa

The characteristic propensity of an independent and impartial judiciary is to speak legal truth to political and economic power under all circumstances. The following selected judgments demonstrate this truism. This is just from the first quarter of 2019. At intervals throughout my tenure, I will be bringing to your attention such similar judgments and occasionally, their opposite.

  1. The Supreme Court of England recently upheld a decision from the lower courts in the case of Lungowe versus Vedanta and KCM in which the Respondents had sought the setting aside of the decision granting jurisdiction to the applicants to sue in the English Courts rather than in Zambia. The Supreme Court reiterated the lower courts judgment that among other issues, the applicants would not have access to justice in Zambia if the case was litigated in Zambia. Among the reasons for this were that there is paucity of Legal Aid in Zambia; there are hardly any sustainable class action environmental lawyers in Zambia; the Zambian judiciary would easily be paralyzed by the economic Mighty and sophistication of the mining companies and finally, the financially powerful mining companies would be in cohorts with powerful political forces from whom they will seek protection in the evisceration of the lawsuit. Someone ought to prove the English Courts wrong. The suit involves pollution spewed by the mining companies that negatively affected communities in Zambia. This judgment in England is lengthy and explains why the villagers took their case to England rather than Zambia and why the courts in England against all odds decided to assume jurisdiction when they could easily have thrown the case back to Zambia. This is perhaps the most important, if not so far the only case involving Zambia and extraterritorial jurisdictional litigation since Independence as far as elucidating judicial discretion in matters of access to justice is concerned. This is also one of the very few cases where a foreign judiciary has pronounced on the possibility of miscarriage of justice if the case before them was held in the jurisdiction in which the case originated due to the characteristics   of the judiciary, the Respondents and political forces in control. This is truly speaking legal truth to political, judicial and economic power. 
  2. The Supreme Court of the United States recently set aside lower court decisions that had dismissed on immunity grounds a suit against the World Bank and its commercial arm the International Finance Corporation (IFC)in the US Courts by a village community in the Gujarat Province of India, whose means of livelihood i. e fishing was decimated by pollution involving a factory owned by the economically powerful TaTa family corporation. The World Bank and the IFC had succeeded in convincing the lower courts that they enjoyed immunity from legal suits granted to them at their founding in 1945. If their immunity was stripped, they would be hampered in their development assistance efforts in developing countries. The Supreme Court reasoned that while that was the case pertaining to economic development assistance, Congress removed the immunity respecting private commercial activity in 1975. Here the World Bank channeled its funds through its private international lending arm, the IFC which loaned the money to a private commercial company in India for commercial purposes. The TaTa company used the money to build a shoe factory which spewed toxic gases in a river on which a local community depended for fish  food resources. This commercial activity is not covered by the immunity blanket. This decision coming from the US Supreme Court whose majority judges are conservative and dealing with the most powerful economic entity in the World Bank, is a most important decision with world-wide implications. Economic development cannot be at any cost. This decision spoke legal truth to power.
  3. In a recent decision, the Kenyan High Court struck down a Double Taxation Treaty entered into by Kenya and Mauritius. The Treaty was entered into in 2012 and was operational by 2014. An economic non-governmental organization called Tax Justice Foundation brought a suit against the Kenyan government on the basis that the execution of that treaty never followed the legal and parliamentary procedures for the ratification of treaties and therefore was null and void. Secondly, that sneaky treaty deprived Kenyan citizens of millions of shillings in tax revenue through tax avoidance by companies that were resident in Kenya but registered in tax-haven Mauritius. There are no taxes in Tax Havens like Mauritius. These Kenyan companies registered in Mauritius were the principal beneficiaries of the Double Taxation Treaty Agreements at the expense of the Kenyan people. The Kenyan High Court Judge in speaking legal truth to political and economic power, was looking after the interests of the Kenyan people. Are there any equivalent cases and judges in Zambia? Does Zambia have non-governmental justice or economic organizations  that can engage in such legal suits on behalf of Zambians?
  4. Prime Minister Justine Trudeau of Canada was elected Prime Minister in 2015. In 2016, the Aga Khan invited Trudeau to spend a holiday for free on an Island in the Caribbean that the Aga Khan owns. The Aga Khan Foundation is owned by the Aga Khan and is a registered lobbyist organization in Ottawa, Canada. Bells started ringing in Canada whether this invitation by a registered lobbyist group and its acceptance by the Prime Minister of the country was ethical and proper and did not involve conflict of interest. Canada unlike Zambia has a Federal Conflict of Interest Act. This Act is superintended over by a Federal Ethics Commissioner. The Ethics Commissioner was engaged to investigate whether Trudeau violated the Conflict of Interest Act in agreeing to spending a free holiday, all expenses paid by the owner of a registered lobbyist organization. The Ethics Commissioner determined that Trudeau engaged in a massive conflict of interest and violated severally the Conflict of Interest Act. Trudeau apologized profusely and expressed the view that in future, he would seek the guidance of the Ethics Commissioner before he engages in similar ventures. That Commissioner, a former Federal Court Judge spoke legal truth to power. Can a judge in Zambia be expected  to speak legal truth to the President of Zambia? Canada also has a Lobbyist Commissioner who investigates the violations of the Code by a registered lobbyist organization. The Lobbyist Commissioner was unleashed to investigate whether the Aga Khan and the Aga Khan Foundation violated the ethics of lobbying by inviting Trudeau, all expenses paid. The Lobbyist Commissioner issued a decision stating that no ethics were violated since Trudeau did not benefit financially from this invitation, sans expenses. A non-governmental organization called Democracy Watch took the matter to the Federal Court for judicial review on the correctness or otherwise of the Lobbyist Commissioner’s decision. The Federal Court handed down a decision during the week of April 15 setting aside the decision of the Lobbyist Commissioner denouncing it as “unreasonable” “too narrow” and that benefits go beyond merely financial and sent back the case for reconsideration by the new Lobbyist Commissioner. This judge spoke legal truth to power. Are there any equivalent decisions in Zambia? Do we have non-governmental organizations in Zambia that can take upon themselves the task to litigate issues of national importance like this one? Are lobbyists registered and monitored in Zambia or do they simply carry loads of money to bribe in exchange for tenders, contracts, judicial decisions, employment as teachers, police officers etc. 
  5. Gun manufacturers have been immune from legal suits for the damage their guns abate in society. In the United States the National Rifle Association (NRA) is such a feared and powerful organization that it can make a President or prevent a person from becoming a president. They can make a Senator or a Representative and Judge or do the opposite with easy. They have litigated on behalf of gun manufacturers who have been sued. Courts have sided with gun manufactures except in a case decided recently a New York State Court which was upheld by the New York State Court of Appeal. This is a case where a person brandishing a Buchmaster rapid fire assault weapon killed a number of students at a high school. The estate of one of the students sued the gun manufacturer as directly responsible for or answerable to the death of their loved one. The judges agreed that the content of the advertising of the weapon was such that a person could purchase the gun and use it in the manner in which it was used at the high school. It could be said that there was a direct causal linkage.  This is a humongous decision where various judges spoke for the first time, legal truth to the power of the powerful gun lobby.
  6. In 2016, a woman sued Donald Trump before he became President for defamation.  Recently a judge okayed the suit to go ahead and dismissing President Trump’s application to dismiss the case on the basis that Trump was clothed in Presidential immunity. Unlike in Zambia, the President in the United States can be sued and appear in depositions and or in Court. The Judge in question spoke legal truth to power volubly.
  7. In mid-April 2019, the DRC Court of Appeal set aside the conviction for real estate of DRC opposition leader Moses Katumbi on the basis among others, that the conviction was obtained on the basis of “judicial duress” levelled on the judiciary by the previous leader Joseph Kabila. Katumbi was not allowed to contest the recent election because of this very criminal conviction. One of the trial judges submitted an affidavit that Kabila pressured the judiciary to convict Katumbi. Can this Presidential duress happen in Zambia? Has this happened previously in Zambia? Judicial autonomy and independence was fragile in the DRC as it is in many countries in Africa. In the DRC we see that regime change enabled the revelation that judicial autonomy and independence was affected by the character of the regime as is the case in many African countries. The DRC Court of Appeals spoke legal truth to power in which Kabila is still embedded in. 

You can have all the pronouncements in the statute books and the Constitution about judicial autonomy and independence, but these attributes do not reside there. They reside in the make-up of the judiciary individually and collectively. Judicial autonomy and independence do not even have to be mentioned in the statute books and the Constituion. They are sin qua non to the rule of law and democracy. They are self-evident truths whose absence cannot be hidden and whose presence can be deeply felt and transparent.

Dr. Munyonzwe Hamalengwa teaches Criminal Law; Law of Evidence; Jurisprudence and Research and Writing Methodologies in Law, in Law School.


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Start: 2019-07-01 End: 2019-07-31