Albie Sachs, the celebrated retired judge of the South African Constitutional Court, while delivering a lecture, once asserted that every judgment he wrote was a lie. By this he meant that the formality of every judgment masks the underlying considerations that birthed it, that is, the final format of the judgment belies the manner in which it has been given life. There is a manner in which his claim could also be true, in that every judgment has underlying reasons but the reasons may not be convincing or compelling. A judgment that is thinly reasoned or justified does not do justice to the plenitude of law and is difficult to appreciate. The moral force of a judgment is reason. Justice Professor Otieno-Odeke of the Kenyan Supreme Court has argued that a judgment is of value on the strength of the articulation of reasons: “reason is the soul and spirit of a good judgment.”
The Constitutional Court of Zambia on 29th November 2019 rendered its highly anticipated (abridged) judgment in the case of Law Association of Zambia and Chapter One Foundation Limited v Attorney General 2019/CCZ/0013/0014. We argue in this opinion that both the interpretive approach taken by the court and the determination of the merits of the case are incorrect as the reasons given by the court for the decision cannot withstand critical scrutiny. But before commenting on these two issues, we would like, in passing, to comment on the depth of the judgment.
In terms of depth, the abridged judgment generally mirrors the style of other Constitutional Court judgments. As a nascent court, the Constitutional Court ought in its judgments to dedicate more space to the articulation of constitutional principles, giving flesh to the bare bones of the Constitution and clearing a path for internalization of constitutional norms. The court can only demonstrate this through the depth of the analysis of issues and articulation of the law and unabashedly demonstrating enduring commitment to constitutionalism. Sadly, this does not reflect in the judgments of the Constitutional Court.
On average, judgments by the Constitutional Court have largely been about recounting the facts and arguments or submissions of the parties, dedicating only a small part of the judgment to rationalization, which unfortunately also often tends to merely recast the submissions of the parties and not an independent analysis and ploughing of a path leading to a clearly justified outcome based on the articulation of constitutional norms and principles. The current abridged judgement, for example, is 17 pages long. The first 11 pages are simply rehashing the facts and arguments of the parties. From pages 11 to 16, the judgment does no more than recast the positions of the parties without embarking on any independent critical analysis of the issues presented. Pages 16 and 17 simply state the decision of the court and the denial of the remedies sought. There is nothing more. The judgement, therefore, lacks depth and critical analysis. It is plausible to argue that this is merely an abridged judgment, however, this same pattern is replicated in several other decisions of the court. For example, in a ruling in this same matter render by the Constitutional Court on 31 October 2019, in which the petitioners had sought an injunction, the ruling dedicates the first 17 pages to restating the facts and arguments of the parties, and only the following 8 pages to analying the issues (which predominantly is recasting than analysis). It is in the analysis and rationalization that the value of a judgment lies.
The Bill 10 judgment is written in a manner Kenyan Constitutional law scholar, Wachira Maina, aptly described as very important “but the parts that are detailed are not important and those that are important are not detailed.” A comparison in this respect can be drawn with some well-reasoned judgments of the Supreme Court of Zambia. In the case of Nyimba Investments Limited v Nico Insurance Zambia Limited Selected Judgment No. 12 of 2017, the Supreme Court traverses the globe, undertaking a comparative and detailed analysis of key case law and literature in the subject matter before settling to an informed decision (in a judgment of 57 pages, 34 pages are dedicated to critical analysis). One may not agree with the conclusion the c reached, but be bound to respect it owing to the court’s ingenuity of literally going to the ends of the earth to justify it.
Moving to the issue of constitutional interpretation, it is important to note that the Constitutional Court seems to base its decision on the fact that the initial draft Constitution leading to the 2016 amendment had an express clause that provided for review of Bills. This clause was however removed in the final version of the draft constitution on the ground that a Bill was not yet law. This interpretive approach, as can be seen, simply confines the text of the Constitution to its drafting history. We argue that as a living document, the drafting history of the Constitution or its particular clauses cannot be exhaustive of its interpretation.
This is because the question of how the Constitution should be interpreted is inextricably interwoven with what it is. As Karl Klare has argued, “what a Constitution means can never be entirely separated from what one hopes and aspires for it to mean.” The Constitution is considered to be organic, that is, it is the living representation of the people’s values, hopes and aspirations. Its purpose is to transform society on the basis of the collective values it articulates. It is for this reason that the Constitution is considered a living document. To this effect, the Indian Supreme Court in Navtej Singh Johah and Others v Union of India and Others, Writ Petition (Criminal) No. 76 of 2016 (2019) has stated that: “…the Constitution is a living, integrated organism having a soul and consciousness of its own and its pulse beats, emanating from the spinal cord of its basic framework, can be felt all over its body, even in the extremities of its limbs.” This is also consistent with the classic description of a Constitution by Sidney Low, who in 1904 wrote: “we are not concerned with a solid building to which a room may be added here, or a wing there, but with a living organism in a condition of perpetual growth and change.” The implication of this is that the meaning of constitutional provisions cannot be confined to the drafting history. The Constitution should be interpreted in a teleological and forward – looking manner rather than backwards, as did the Constitutional Court. To tie the Constitution to the drafting history is to arrest its growth, turning it into a relic of history and a dead letter. We believe this “living” interpretation of the Constitution is the interpretive approach provided for in Article 267 of the Constitution which enjoins the judiciary to construe the Constitution purposively.
Perhaps an excellent example of the purposive approach is the decision of the South African Constitutional Court in the case of State v Makwanyane and Mchunu Case No. CCT/3/94. The drafters of the South African Constitution failed to reach consensus on the death penalty and, therefore, the Constitution included no express provision proscribing the death penalty. The death penalty is, however, still reflected in subordinate legislation. The Constitutional Court in this case declared the death penalty unconstitutional, largely on the basis of the value of human dignity enshrined in the Constitution, notwithstanding the views of the drafters of the Constitution. Similarly, the Bill 10 petition called the court to make a determination on the basis of the values and principles enshrined in the Constitution. The Constitutional Court, however, took the easy way out by simply reverting to the drafting history and settling there. It goes without saying that such an approach compares unfavourably with jurisprudence from progressive Constitutional Courts across the globe. If American courts, for example, had taken this approach to constitutional interpretation, slavery may not have been outlawed as some of the drafters of the American Constitution actually owned slaves.
In terms of substance, the court dismissed the petition on the account that it lacked jurisdiction. The court came to this conclusion on the basis of Article 128(3) of the Constitution, which states: “(3) Subject to Article 28, a person who alleges that— (a) an Act of Parliament or statutory instrument; (b) an action, measure or decision taken under law; or (c) an act, omission, measure or decision by a person or an authority; contravenes this Constitution, may petition the Constitutional Court for redress.” The Constitutional Court, on the basis of this provision, held that it is only clothed with jurisdiction to review Acts of Parliament and not Bills as the provision does not expressly mention Bills. The court felt buttressed by the drafting history of the Constitution whereby the express provision clothing the court with jurisdiction to review Bills was deleted in the draft Constitution and never made it into law.
It is not clear why the Constitutional Court chose to resolve the petition under this limb of Article 128, considering that this provision has multiple limbs. Article 128(1), for example, clothes the court with original and final jurisdiction to interpret the Constitution. It is important to acknowledge that the petitioners did not argue that Parliament had no power to amend the Constitution. The contention was that the manner in which it was being done was in violation of several express and implied constitutional values and principles that bind both the executive and the legislature. The Constitutional Court did not address this in the judgment. Comparative literature and case law indicate that when the Constitution imposes obligations on organs of the state and the concerned organs do not perform their role in line with the stated obligations, the courts have a duty to intervene to enforce the constitutional obligations. The South African Constitutional Court in the case of Doctors for Life International v The Speaker of the National Assembly and Others Case CCT 12/05(2006), for example, held that once a question is raised about the manner in which the legislature exercises its power, that triggers the court’s interpretive role as it is vested with power to interpret the Constitution.
Accordingly, there is nothing in the Constitution prohibiting the court from entertaining the petition under Article 128(1), which triggers its mandate as the interpreter of the Constitution. This a general and more extensive power than that contained under Article 128(3) under which the court chose to dispose of the matter.
The case of Doctors for Life International v The Speaker of the National Assembly and Others Case CCT 12/05(2006), is also instructive on how the Constitutional Court could have adjudicated the matter. In this matter, the court had to first determine if it had power to nullify a Bill which had not yet become law and secondly,, assuming the court had no such power, if it could provide declaratory relief where the legislature disregarded constitutional obligations in drafting a Bill, which was yet to have legal effect.
With regard to the first issue, the court held that it is more appropriate to review an Act of Parliament and not a Bill in order to respect the principle of separation of powers and also avoid prescribing to Parliament how it should perform its role. However, with regard to the second issue on howParliament exercised that power in the legislative process, the court took the view that the Constitution binds all entities and organs of the state. Therefore, if the legislature or executive violated constitutional norms in the course of the legislative process, the court could intervene in order to enforce constitutional obligations. The court categorically held that: “But under our constitutional democracy, the Constitution is the supreme law. It is binding on all branches of government and no less on Parliament. When it exercises its legislative authority, Parliament must act in accordance with, and within the limits of, the Constitution, and the supremacy of the Constitution requires that the obligations imposed by it must be fulfilled. Courts are required by the Constitution to ensure that all branches of government act within the law and fulfil their constitutional obligations. This court has been given the responsibility of being the ultimate guardian of the Constitution and its values.”
However, in the Zambian context, there are provisions of the Constitution that suggest that the court can intervene with the legislative process if what is intended could lead to the violation of basic norms of the Constitution. Article 2 of the Constitution, for example, empowers every citizen to prevent violation of the Constitution. It states: “2. Every person has the right and duty to— (a) defend this Constitution; and (b) resist or prevent a person from overthrowing, suspending or illegally abrogating this Constitution.” The use of the word “prevent” under article 2(b) suggests that one does not have to wait until the action is completed (in this case the enactment of a Bill into law). Otherwise what would a citizen be preventing if the impugned act has been accomplished? Surely the duty to prevent the abrogation of the Constitution includes the possibility of approaching the Constitutional Court for redress before the Constitution is abrogated as to “prevent” implies action taken before the impugned act is accomplished. The decision by the Constitutional Court means that an opportunity to articulate and cloth such provisions with flesh and give them meaning in a concrete situation, was squandered.
Finally, we believe that the judgment of the Constitutional Court has ruinous consequences for constitutionalism and rule of law in Zambia. The decision mirrors old executive-minded jurisprudence such as the case of Nkumbula v Attorney General (1972) ZR 204 where the judiciary abdicated its mandate to defend constitutionalism. This abdication effectively handed unchecked power to the state to rewrite the Constitution capriciously, resulting into the one – party state. The Nkumbula case, which the Constitutional Court seems to approve, assuming in the unlikely event that it was correctly decided, could still be distinguishable from the present one on many fronts, chiefly that the Constitutional norms were different and there wasn’t a specialised Constitutional Court to competently and robustly interpret the provisions of Constitution. In his recently published book, Supreme Court judge, Mumba Malila, laments about such jurisprudence and expresses hope that “in present times similar cases would be decided with completely different considerations in mind.” That hope has been dashed.
The decision to let government proceed with the process of amending the Constitution, disregarding binding constitutional obligations has a deleterious effect on the rule of law and constitutionalism as it sends a clear message to the ruling elite that they may get away with anything. As Justice Albie Sachs stated, “once you open the door to diminishing respect for the rule of law, you close the door to the rule of law.” The same view is graphically and eloquently stated by Justice Brandeis of the US Supreme Court in Olmstead et al v United States 277 US 438 (1928): “In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously…Government is the potent, omnipotent teacher. For good or for ill, it teaches the whole people by its example…If the Government becomes a law-breaker, it breeds contempt for the law; it invites every man to become a law unto himself; it invites anarchy.”
[The authors are lecturers in the School of Law at the University of Zambia. The views expressed in this article, are, however, personal and may not reflect those of their institutional affiliations]