(The views expressed below represent my personal opinion and are not attributable to any organization or institution I may be affiliated with).
The Judiciary Arm of Government has in the recent weeks been under unguided attacks. The attacks came after it announced its intention to make submissions before the Parliamentary Select Committee regarding the Constitutional Amendment Bill Number 10 of 2019. Those that are opposed to the intention by the Judiciary to making submissions before the Parliamentary Select Committee argue that the Judiciary would be conflicted in so doing. I however, hold a contrary view as I argue that it is within its rights to make submissions just like any other State organ.
The Constitution of Zambia as amended in 2016 makes provision for its supremacy under Article 1(1). This simply means that all laws enacted by Parliament or any subsidiary legislation are subordinate to the Constitution. The implication is that all Acts of Parliament or subsidiary legislation must be enacted within the parameters of the Constitution otherwise they risk being invalidated to the extent of their inconsistency with the Constitution. The Constitution is therefore a grundnorm or fundamental norm that contains the aspirations of the people of a nation. The foregoing is amply emphasised in the preamble of the Constitution through the expression “we the People of Zambia….” The expression above was crafted in that undertone to imply that the provisions of the Constitution at least reflect the aspirations and wishes of all the people of Zambia.
The term “People of Zambia” comprises all persons who are citizens of Zambia and, without discrimination, those that form part of the jJdicial Arm of Government. This argument is buttressed by Article 1(3) of the Constitution. The said Article 1(3) enacts that “This Constitution shall bind all persons in Zambia, State organs and State institutions.”
The Constitution does not make exceptions as to whom it binds. It follows therefore that all persons, organs of State and institutions in Zambia are affected by the Constitution. If indeed, all persons, organs of State and Institutions are affected and subject to the Constitution, it is only trite that all persons in Zambia, including the Judicial Arm of Government are within their rights to make submissions in the Constitutional making process. Since, every amendment or enactment of the Constitution affects every person and state institutions/ organs, the Constitutional making process must provide a mechanism that will allow submissions from all stakeholders, without discrimination.
Furthermore, those opposed to the Judiciary making submissions do not realize that judges and other judicial employers are within the expression “People of Zambia” If indeed they are “People of Zambia”, why are they being inhibited from exercising their freedom of expression by way of making submissions? How else will the aspirations of the Judicial Arm of Government be contained in the Constitution if they are prevented or stopped from making submissions? Do people even know what exactly the Judiciary is going to submit before the select Committee?
Additionally, it is surprising that while all other organs of state have made their submissions to the Parliamentary Select Committee without criticisms, certain quarters ofthe Country don’t want the Judiciary to make theirs. What is more worrying is that those that are opposed to the Judiciary making its submissions have not cited any law to premise their criticism or opposition.
I strongly contend that there is no law that stops or warrants people to criticize the Judiciary for intending to make submissions before the Select Committee. In fact, it is within its freedom of expression rights to make such submissions.. Since the Judiciary does not engage in public debates, the Parliamentary Select Committee is therefore the only platform it has to express its views on the subject matter.
In conclusion, I support the Judiciary’s intention to make submissions before the Parliamentary Select Committee sometime this month.
(McQueen Zenzo Zaza
Advocate of the High Court for Zambia
Human Rights Activist)