PROFESSOR Muna Ndulo says judges can and do make incorrect rulings as they are not immune to legal errors.
And Prof Ndulo says the Acting Registrar’s decision to ban State Counsel John Sangwa from appearing in any Zambian court is fundamentally and utterly invalid.
Commenting on the Judiciary’s decision to bar Sangwa from appearing in Zambian courts following his criticism of the Constitutional Court judges, Prof Ndulo said it was shocking to learn of the decision made against the constitutional lawyer, likening the act to someone blaming the failure of a play or a book on bad reviews.
“On March 13, 2020, the Acting Chief Registrar issued a circular announcing that at the direction of the judiciary, Mr. John Sangwa, SC, will no longer be allowed to appear before any court in Zambia until further notice. The circular further states that the action followed a complaint of professional misconduct made by the judiciary to the Law Association against Mr. Sangwa, SC. My first thought upon reading this was that it was fake. Given the collective wisdom of the judiciary, as the circular purports to convey, one would believe so. I still suspect that this is the work of a small number of judges. The circular, uncharacteristic of legal orders, cites no legislative authority for the action and describes no process that led to this decision,” Prof Ndulo said. “Judges can and do make incorrect rulings. Sometimes, a judge’s ruling is factually inaccurate, and other times, they include legal errors. Law Journals and legal scholars worldwide evaluate and criticize court judgments. To blame the critics of court decisions for the public’s rejection of a court decision is like blaming the failure of a play or a book on bad reviews. It is the play or the book that is bad and not the reviewer who brings out the flaws in the works.”
He said barring Sangwa from the courts was absurd and called on the judiciary to immediately withdraw the circular.
“Mr. Sangwa has no avenue for redress since the complainant is given as the ‘judiciary’ and the circular shuts him off the entire judiciary. I hope that the Registrar, will realize the legal absurdity of his action and heed the calls from all over the world to withdraw the circular…In this case, the Registrar’s decision is fundamentally and utterly invalid. …In my view, the circular is invalid for several reasons. First, the ‘circular’ is not an order of a court or tribunal properly constituted. A court order has to be issued by a court or tribunal properly constituted by law, especially one depriving a citizen of his or her rights. An order is an official proclamation by a court that defines the legal relationship between parties to a hearing, trial or other court proceeding,” Prof Ndulo said. “Court decisions are given by properly constituted courts or tribunals and not court officials writing circulars, regardless of the office of the official. No law clothes a judge or judicial office with the authority to issue a binding circular to parties out of the context of court proceedings or other legal process. The circular informs us that the ‘judiciary’ has lodged a complaint to the Law Association, that is that the parties are Sangwa, SC, and the Judiciary. Firstly, the term ‘Judiciary’ for purposes of a complaint is vague. It begs the question: who actually is the complainant? Who is the judiciary? Is it a number of judges or a whole arm of government known as the judiciary as constituted under the constitution? Second, one of the parties as announced in the circular, in total disregard of a cardinal element of the principles of natural justice (you cannot be a judge in your own case) imposes punishment on the other (Mr. Sangwa,SC) without a hearing and on charges only known by the complainant and not served on the defendant.”
He said the requirement of due process prohibits any tribunal from taking any action that would deprive a person of any right without the due process of law.
“…Due process provides several types of protection: procedural due process and substantive due process. It is contained in in all human rights conventions, including in the International Covenant on Civil and Political Rights (Article 14). Procedural due process requires that when a government acts in such a way that it deprives a citizen a right, the person must be given notice, the opportunity to be heard, and a decision must be by a neutral decision maker. All these rights were denied to Mr. Sangwa. Additionally, Mr Sangwa is denied a right of judicial review and the right of appeal to any court in Zambia, which would be available if the decision had been made by a tribunal set up by the Law Association of Zambia, or by a named court or judge,” said Prof Ndulo.
“My…advice to the Zambian judiciary is to heed the words of Lord Atkin in (Ambard v. Attorney General of Trinidad and Tobago (1936): ‘Justice is not a cloistered virtue: She must be allowed to suffer the scrutiny and the respectful even outspoken, comments of ordinary men.’ Judges are not infallible and cannot pontificate to society.”