On 13 March 2020, the Judiciary’s Acting Chief Registrar, Prince Boniface Mwiinga, announced that prominent constitutional law expert John Sangwa would no longer be allowed to appear before any court in Zambia. In a notice to all judges of the Supreme Court, Constitutional Court, Court of Appeal, High Court, Registrars and Magistrates, Mwiinga stated that the action followed “a complaint of professional misconduct made by the Judiciary to the Law Association of Zambia [LAZ] against the said Mr John Sangwa, SC”. What do we make of this move by the Judiciary?
The first point to note about Sangwa’s suspension is that it is void on grounds of procedural impropriety. The process for dealing with the misconduct of members of the bar is elaborate and provided for in Part IV of the Legal Practitioners’ Act. If anyone, including judicial officers, is aggrieved by Sangwa’s conduct, the correct procedure is for the aggrieved party to complain to LAZ for consideration of the grievance. The association, through its Legal Practitioners’ Committee, would then invite both the complainant and the concerned practitioner to whom the application relates for hearing. If a prima facie case is established against the respondent, the matter is then referred to the Disciplinary Committee, established under the Act, for further hearing.
The Disciplinary Committee may, after hearing the parties involved, and depending on the severity of the transgression, admonish or fine the practitioner, or recommend to the High Court that the practitioner be suspended or struck off the Roll. The court can only exercise the powers to suspend a practitioner on the recommendation from the Disciplinary Committee after all investigations and hearings have taken place. Now, what has happened in case of Sangwa is that the ‘Judiciary’, pre-determining his fate, started with the possible final adverse outcome before going through the mandatory process outlined above. This is prejudicial to Sangwa’s rights because an arm of the State is effectively trying to render whatever decision the Legal Practitioners’ Committee can make redundant.
The second point is that Sangwa’s suspension violates his constitutional right to be heard and secure protection of the law. Article 18 (9) of Zambia’s Constitution provides that “Any court or other adjudicating authority prescribed by law for the determination of the existence or extent of any civil right or obligation shall be established by law and shall be independent and impartial; and where proceedings for such a determination are instituted by any person before such a court or other adjudicating authority, the case shall be given a fair hearing within a reasonable time.” By taking an adverse position against Sangwa without according him the opportunity to be heard, the Judiciary committed ‘a bloodless coup’ against the Constitution and the basic principles of the rule of law. The Judiciary is neither infallible, above the Constitution nor beyond reproach. Judicial officers, more than anyone else, should know this. If the Judiciary, by penalising Sangwa, sought to encourage respect for the institution, they may have succeeded in achieving the opposite.
The third point that emanates from Sangwa’s suspension is in form of a question: who among the Judiciary was the complainant against him, the one (s) who will appear before the Legal Practitioners’ Committee for hearing? To suggest that it is the ‘Judiciary’ – an arm of the State and not a specific judge or court – is vague and misleading because institutions have no feelings to be hurt by the remarks of human beings. According to the Constitution of Zambia, the Judiciary consists of the Supreme Court, Constitutional Court, Court of Appeal, High Court, subordinate courts, small claims courts, local courts, and any other courts as prescribed by Parliament. Is the Judiciary’s Acting Chief Registrar telling Zambians that judicial officers of all these numerous courts met, sat down and decided, without according Sangwa the opportunity to exercise his constitutional right to be heard, that he should be barred indefinitely from appearing before any of them or their courts? Or is it the case that the Acting Chief Registrar is the complainant? If yes, what wrong did Sangwa do against the Acting Chief Registrar? Under what law or authority did the Acting Chief Registrar assume the role of complainant and judge to mete out the punishment? If the Acting Chief Registrar is not the complainant, then who directed Mwiinga to write the letter of complaint?
Assuming that Sangwa has been barred because of his argument that President Edgar Lungu dribbled Zambians when he appointed individuals who did not meet the constitutional requirements to serve as judges on the Constitutional Court: namely, specialised training or experience in human rights or constitutional law and 15 years’ experience as a legal practitioner, then there are three fundamental issues that arise. First, if the charge arose from this public criticism of the qualifications of Constitutional Court judges, one that may have been taken as attacks on the personal integrity of the individual judges, why is the complaint coming from the Acting Registrar of the Judiciary, not the individual judges themselves? Second, it is worth noting that this is not the first time that Sangwa is making this argument. He first raised it in 2016 when the current individual judges were nominated to serve on the Constitutional Court.
Sangwa even wrote a letter to President Lungu at the time, pointing out the noted shortcomings and asking him to reconsider the choice of his nominees. The President ignored him, and thanks to the ruling party’s majority in parliament, all six nominees were ratified. The question is, how is it possible that the same point that was not an offence in 2016 is now an offence? Now that they are confirmed judges, are the six individuals whose qualification to serve on the bench Sangwa had questioned now seeking to (ab)use their judicial positions to punish an active citizen who asks the hard questions, who proposes ways forward and who, from any position or none, acts as an agent or catalyst of positive action in dealing with the issues that matter most?
If the incompetence that some of the affected individuals have demonstrated in office or their judicial decisions is not deliberate, then Sangwa has been absolved by history. With the benefit of hindsight, we may now understand the poverty of some of the decisions that have come out from the Constitutional Court as a result of genuine lack of capacity: the judges are performing a role they are not qualified for. Third, were Sangwa’s comments that President Lungu corruptly appointed the judges of the Constitutional Court so grave that to keep him in practice would prejudice the legal profession and the public? In any case, did anyone from the Judiciary contact or seek audience with Sangwa before suspending him to confirm the accuracy of his views in any published story that may have motivated the decision to bar him? Or is the Judiciary simply out to gag critical voices?
The fourth point that arises from the indefinite suspension of Sangwa is that the Judiciary is now lawless, with terrible consequences on the rest of society. Let us assume that Sangwa, aggrieved with the decision of the Judiciary to bar him from appearing before any court in Zambia, wants to challenge the action in court on the basis that it violates his right to be heard. Does the ban extend to his choice to represent himself since citizens have a right to represent themselves in a court hearing? If it does, which body should Sangwa approach to challenge the violation of his right to be heard with himself as his legal counsel, since, in the absence of private courts, he only has public courts – that have all banned his right to Practice – to turn to? Where would he seek legal redress if members of the Judiciary, the custodian of the law, are themselves the violators of the law? The Judiciary is manufacturing lawlessness.
Sangwa’s suspension also demonstrates the breathtaking hypocrisy of the Judiciary when it comes to public criticism of judicial officers or their decisions. Why should Sangwa’s criticism of, say, the Constitutional Court judges attract punishment without being heard when President Lungu’s criticism of the same court or judges, his interference with their work, or refusal to obey their judgement, has not attracted any repercussions? If the argument is that Sangwa is a lawyer, Lungu is also one. In any case, Article 118 of the Constitution obliges the Judiciary to exercise judicial authority without discrimination; it says justice shall be blind and done to all. So why should Sangwa, who is a citizen before he is a lawyer, be discriminated against and denied his constitutional right to be heard and represent himself on the basis of his profession? When barring Sangwa, on whose behalf was the ‘Judiciary’ exercising that power – on behalf of individual judges or on behalf of the people as mandated by the Constitution?
The final point to be said about Sangwa’s suspension is that the real reason why he has been barred may have to do with his principled opposition to President Lungu’s third term bid. In recent months, Sangwa has been a strong critic of the proposed Constitution of Zambia (Amendment) Bill Number 10. He has also maintained that Lungu does not qualify to seek another term of office. In other words, the decision to bar Sangwa indefinitely is most likely linked to his defence for the protection of term limits coupled with Lungu’s efforts to eliminate someone he probably sees as the stumbling block to his all-consuming desire to secure a third term. In the event that Lungu does not succeed in his plans to push through Bill 10 – his main lifeline for re-election – there will likely be a legal challenge to his nomination, once filed in line with Article 52 of the Constitution, to stand as Zambia’s President next year.
By barring Sangwa, Lungu may be using the Judiciary to eliminate a likely counsel for whoever might oppose his nomination out of the fear that Sangwa’s great mind and expertise on constitutional law could lead to a successful legal challenge, one that would result in the fatal disqualification of the ruling party’s presidential candidate. It is indeed possible that LAZ may itself challenge the constitutionality of Lungu’s presidential candidacy next year once he has officially filed his nomination. Were that to happen, Sangwa is likely to be the association’s lawyer. He has previously represented LAZ on several high-profile cases relating to the defence of the Constitution such as the case of ministers’ illegal stay in office, the constitutionality of the deplorable Bill 10 and the unresolved matter of whether Lungu is eligible to stand for another term. Sangwa has also exhibited genuine loyalty to principle, inspiring bravery, and has been unrelenting in his demand for the Judiciary to provide reasoned judgements. In this instance, Lungu may be using the courts to supress criticism of the Constitutional Court in particular, criticism that has the potential to encourage the judges to display greater independence from the executive and stick to the rules of the game.
Another possibility is that Lungu could be using the Judiciary to bully LAZ and weaken its opposition to his ongoing unconstitutional manoeuvres and efforts to liquidate democracy by intimidating one of the association’s shining lights and making him an example of the perils of standing up to power. In fact, principled LAZ members and Zambians in general should not be surprised if they woke up tomorrow and learnt that Sangwa has been summoned for contempt of court and consequently handed a punitive jail sentence out of this ridiculous case in order to keep him away from the courtroom. Such is the desperation of the ruling elites. LAZ, which was easily manipulated by the Patriotic Front (PF) into publicly condemning Sangwa – for allegedly “questioning the qualifications, integrity, propriety and impartiality of the Constitutional Court Judges” – hours before the complaint from the Judiciary reached its secretariat, has put itself in an awkward position. Now that the matter is before LAZ, would Sangwa be heard and his case concluded before the 4 April 2020 elective Annual General Meeting – at which the PF intend to completely capture the body by advancing ruling party supporters to run and render it totally ineffective? Or would LAZ immediately ask for a reconsideration of the defacto suspension of Sangwa’s right to Practice? If the case remains undetermined by 4 April, it is probable that a thoroughly captured leadership, which could emerge from the LAZ elections, may recommend that Sangwa be removed from the Roll, however innocent he might be.
Argh, it is a disaster this thing called “Zambia”, right now, one that makes my blood boil.