In recent weeks, the institution of the Constitutional Court and particularly its existence, has been the subject of much debate. Several stakeholders have cited a host of reasons why the institution should be done away with completely. While there is merit in some of the arguments calling for the complete scrapping of the Court, there exist equally compelling alternative arguments in support of its subsistence. By adding its voice to this discourse, Chapter One Foundation seeks to promote analytical public engagement on matters of public interest.
The need for a specialized court to consider matters of a Constitutional nature is well appreciated. Several jurisdictions around the world have adopted the institution of constitutional courts in some description or other. Zambia was not far behind when the court was created and it is mostly agreed that the intention of establishing a constitutional court and its eventual establishment was well received. However, the institution of the court and its structure have since fallen into disaffection culminating into some calls for it to be done away with.
One of the criticisms leveled against the Court is the blurred limits of its jurisdiction due to the dichotomy between rights contained in the Bill of Rights and those rights and duties contained in the rest of the Constitution caused by the failed referendum of 2016. Although the Constitutional Court has jurisdiction to hear matters relating to the interpretation of the Constitution, this jurisdiction does not extend to matters involving the Bill of Rights which are in the exclusive jurisdiction of the High Court. While this is a valid critique, it is a problem of structure and particularly the interaction between courts which can be rectified by a constitutional amendment. The Constitutional Court can still therefore be maintained albeit in a different form which rectifies the problem of overlapping jurisdictions of all existing courts. By way of example, in Kenya the Constitutional Court and Human Rights Court is a division of the High Court while in South Africa the Constitutional Court is not a court of first instance but is the highest appellate court on constitutional matters despite the existence of a Supreme Court of Appeal.
Another point made in favour of abolishing the Constitutional Court is the fact that it is the first and final court to determine all constitutional issues outside the Bill of Rights. As such, there is no appeal from a decision of the Constitutional Court. Some stakeholders have raised concern over the lack of oversight over decisions of the Constitutional Court and the lack of opportunity for review of a decision of the Constitutional Court once made. Litigants who do not agree with the decision of the court or hold divergent views have no recourse. However, the unique jurisdiction of the Court enables it to dispense with matters of constitutional nature with the speed and finality which they deserve. The need for justice to not be delayed cannot be overstated and ought not to be overlooked. In any case, the subordination of the Constitutional Court to a more superior court can be achieved by Constitutional amendment without abolishing the court altogether. Further, if the main concern over the continued existence of the court is the quality of judgments emanating therefrom, neither subordination of the court nor merely abolishing it altogether will address the issue as this does not guarantee an improvement in the quality of decisions.
The common thread holding together calls for abolishment of the Constitutional Court is disenchantment with the perceived shortcomings of the Court since its inception and/or individual qualms regarding one decision or other. While these are valid concerns, it is widely accepted that at its inception the Constitutional Court was viewed as a well-meaning step in the right direction and one with potential to improve the jurisprudence. We ought not to loose sight of this intention even as we forge a path towards holistic development.
Chapter One Foundation is a civil society organisation that promotes and protects human rights, the rule of law, and social justice in Zambia. Please follow, like, and share our content on Facebook and LinkedIn under the page ‘Chapter One Foundation’ and on Twitter and Instagram under the name ‘@CofZambia’.