A STATEMENT IN RESPONSE TO THE LAW ASSOCIATION OF ZAMBIA STATEMENT OF 12TH MARCH 2020 STRONGLY CONDEMNING JOHN SANGWA S.C AND RODGER M.A. CHONGWE FOR QUESTIONING THE QUALIFICATIONS, INTEGRITY, PROPRIETY AND IMPARTIALITY OF THE CONSTITUTIONAL COURT JUDGES.
I refer to the above subject which appeared in the local newspapers on the 13th March 2020.
I wish the Association had spoken to me before publishing the Statement on the 13th March 2020 which was allegedly made by me to a reporter of Diggers Newspaper on or about the 12th March 2020. Had the Association done so it would have known that at no time when I spoke to the representative of the press did I go into the issue of the qualifications or curriculum vitae of any of the Judges of the Constitution Court.
I read what Mr. John Sangwa, S.C. wrote about the qualifications of each of the Judges of the Court and noted this is not the first time he has commented on the qualifications of some of the Justices on that Court. He did so in 2016 just before the judges were sworn into office. In my relatively short interview, I was not in the position to go into the details of the history of the judges and had no thought of doing so. But here I have to now address and only briefly what I actually think of the opinions of John Sangwa on this issue. Mr. Sangwa has gone into some detail in his paper on a very important matter to our legal system and our democracy.
It is his contention that there are specific requirements to be met in the work history of any candidates for the position of judge of the Constitutional Court. It is his opinion that these must be met before the appointing authority invites any person to be a member of the Constitutional Court of Zambia.
If I have him right Mr. Sangwa thinks that the President cannot simply dispense with the qualifications or part thereof required of a Constitutional Court Justice. This is correct as far as I am aware. It is however clear to me that when a President makes such an offer to a member of the legal brother/sisterhood it is going to be viewed as a very great honour and as a welcome or perhaps unwelcome call to service. I don’t imagine that every person receiving the call thinks he she needs to check on their qualifications. That is the work of the appointing authority why else would those lawyers have been invited to serve.
However, in the event that John Sangwa’s evidence is correct and his reasoning sound then it is very important that due deference be given to the fact that this is no trivial issue and it must not be swept under the carpet. The knee jerk reaction against Sangwa in this matter does not reflect so much a response from a judiciary that has looked carefully at the issue as it must; even in the face of Executive anger, as it shows a hasty and panicked reaction by some invisible layperson. The Constitutional Court Justices can help resolve this issue. As honorable individuals and lovers of law they should look hard and long into what Sangwa has said. After all they are not snowflakes as the Americans say and they will not melt by confronting their own mortality in the life of judgeship. If they find that their brother Sangwa is wrong about their qualifications they are in order to show so but if they have to face a more unsettling truth, they know well what they must do.
Judgments often look very pretty to the average Mulenga or Misozi but they can be stuff and nonsense when seriously examined by someone who has a modicum of commonsense.
I did not read any letter or article from LAZ office at the time Mr. Sangwa first raised the issues in his critique of the qualifications of the persons named for appointment to the Constitutional Court by the President.
Neither did I read communication from LAZ at that time to Mr. Sangwa, S.C. expressing disgust at his opinion and warning him about the consequences that would befall him for having and stating it.
What Counsel John Sangwa, S.C. published concerning the qualifications of those that had just been appointed Constitutional Court Justices was his own personal opinion and that opinion was directed to the appointing authority; the President of Zambia. Thus the re-publication of the letter of opinion on the qualification of some of the Judges of the Constitutional Court did not surprise me and I had no intention whatsoever to comment on State Counsel’s opinion.
My comment was directed at the constitutional issue that had arisen.
This is the issue of the qualification of the incumbent President to the office of President come the General Elections of 2021; to wit, whether the incumbent President qualifies to stand as a candidate for the office of President of the Republic of Zambia in 2021?
It is my own opinion that the incumbent does not qualify to stand both legally and politically. I will not go into a full legal opinion here but I will just mention that I have been a lifelong constitutionalist. As a political leader for some years until I was shot and exiled from Zambia for some more years and simply as a citizen, I have tried to exercise my rights of commentary to the benefit of not only myself but also to my country. This has come with substantial cost to me and my family over the years. I do not intend to be stopped doing so at this stage of my life even by LAZ.
So I have to say that politically nobody needs to be given a further term as a favour as good or as bad as they may be. When I say that the President of Zambia is not a good lawyer I can point to him standing up and telling this country that the Ministers whom he appointed to illegally continue in office when the Parliament was dissolved do not have to pay back the salary they received. This unlawful counter order by the lawyer President was in the face of the judgement of the Constitutional Court that he had himself appointed. In this judgment his action of insisting on retaining the ministers in office during an election was shown as unlawful. Mr. Mwale one of the Ministers said that he wanted to pay back. This Minister showed a modicum of respect for the Court by conceding it was in the right but said he could not do so anyway. Maybe he did later or maybe he didn’t. But the election took place under a cloud of significant electoral abuse anyway.
This pay back the money judgment was a good judgement and protected an important aspect of our parliament democracy dealing with a free and fair electoral playing field. Let us refer back to a day when the world was surprised to hear the judgement of the Kenyan Court in the matter of the election of Uhuru Kenyatta. The Kenyan Court overturned the Kenyan election there because it was adjudged there was good reason to do so. If I recall rightly Mr. Lungu was on his way somewhere and he gave a speech before leaving where it was quite clear what judgement he was expecting in a case brought against him before the Constitutional Court. His statement was threatening and a clear example of putting pressure on the Court to cough up a decision he would like. It did so. Whether the Executive pressure contributed to the decision or not we cannot know but if there is any action by the Executive that undermines the independence of the judiciary and the rule of Law this is one.
So, at times I as a citizen will say that a court is making lousy decisions or it is doing well. It all just depends. My question is who told the LAZ that our system will collapse because of one irritating old man who happens to be lawyer or one more junior one who says something that some judges don’t want to hear. My experience is that at times Zambian Courts can show their mettle even if there is executive pressure or they don’t like the litigant; me for instance. It is not the role of the Law Association of Zambia to turn on its members for trying to point out the shortcomings in our country especially as they might arise from the mismanagement by the Executive.
It is actually pretty spectacular that LAZ put my name before Sangwa as a miscreant because I gave an interview and that this wound up being primarily me giving my advice, yes as a lawyer which I am, but mostly as an older person in the departure lounge of life, to the incumbent President. Why would I do that? Because he is not able to see that the people have since 2001 made it abundantly clear that they do not want three term Presidents. Neither in fact does the Constitution suggest that they do. What to the judges is otiose is to the people of the country the core of the matter.
However, I also gave His Excellency the advice of an elder about some of his activities that make it prudent for him to forget about running in the next presidential election which he may do just because he thinks he can pull it off due to the Constitutional Court Decision. It is in my opinion, for what it is worth, very likely that he will not win the election without indulging with his friends in substantial undermining of free and fair electoral principles yet again. In addition, I can foresee that the violence which has been reported emerging at every political event almost entirely at the hands of this President’s party will be much worse as the arming of its political militias otherwise called cadres, is not a secret. What does the Law Association have to say about this? Perhaps to some people this is more likely to undermine confidence in the rule of law than anything I have had to say about a judge here and there which has anyway been very little in fact. Most competent judges are neither vindictive or thin skinned.
To go back to Sangwa S.C. he has been told that he can’t appear as a lawyer before any of the courts of law by order of the judiciary. Order delivered by the Registrar of the High Court. I have no beef with the Registrar; he is like Sangwa, not necessarily my best mate but my brother in the law. What I take exception to is the idea that someone has been accused and without a trial already deprived of his livelihood as a court lawyer by a person called judiciary. Judiciary is not a judge it’s a branch of Government. You know as in the Executive, the Legislature and yes, the Judiciary. If a person is being treated to this unique procedure with the Law Association apparently acting as cheerleader, then he is being denied natural justice. He has the whole works lined up against him. Clearly the Executive does not want to hear the opinions of Sangwa on Bill 10 and on the composition of the Constitutional Court. The legislature might not like him either, who knows? However, if it is the Judges of the Constitutional Court who have insisted, he must be given this treatment because of his publication of details of their Curriculum Vitae in 2016, they have taken their own sweet time to say so. At any rate they should at least put their names on the complaint to establish what exactly he has done to them. Also, maybe to explain why the “punishment for the crime” is without any public hearing, and deprivation of appearance before the Courts of this country.
If you take a look at the statement by LAZ I have top billing as the principal baddie, with John Sangwa S.C. as costar who is a lawyer with whom I have hardly exchanged a sentence in the last decade.
In the Diggers interview I had more to say about and to, the President of this country, not so much about the Constitutional Court. So whatever Sangwa might have revealed that has upset the Judiciary so much my comments whilst not particularly reverential were in no way fatal to the overall reputation of the Courts of Zambia or the rule of law. The Zambian courts were not left in a worse position after my interview than before it.
I think that why my name was thrown in with that of Mr. Sangwa is because the President is very annoyed that not only has Sangwa been as the lawyer for LAZ, vocal in opposing Bill 10, but because I have also been referring to it and contrasting it with the infinitely more legitimate 2012 Constitutional making process that had taken place under the auspices of Sata and the Chairmanship of former Chief Justice Silungwe and the Technical Committee of 18 people.
Therefore, I would like an assurance that the Law Association Zambia is not in fact attempting to silence me on the issues which are crucial to preventing the continuing efforts to subvert our democracy in the interests of a select few. A few who by their lack of good works whilst in office and at the same time their enactment of deplorable actions, will not attract the support of the people of this country. I want to hear that the Council of LAZ is not acting as a mouth piece of the Executive of this country when it is disguised as the Judiciary to silence dissent from this person who is probably amongst a very few of my generation still a member of the Law Association of Zambia.
I am one of the people who changed the Law Society of Zambia (formerly Northern Rhodesia) through the Law Association Act of Zambia of 1973. We transformed what had been in effect a mere club of lawyers into a significant body with a greatly expanded “mandate” far beyond that club of chums. So Councilors of LAZ I do know LAZ is mandated to do this and that, all good things but the question is, are they mandated to interfere with the freedom of expression of their own members over some of the most crucial issues of law and democracy to affect the interests of the people of this country? The Council of the Law Association of Zambia has no such mandate. I know what we wanted when that Act was written and it was never that.