CONSTITUTIONAL lawyer John Sangwa State Counsel says Rainbow Party general secretary Wynter Kabimba’s call for President Edgar Lungu to intervene in ConCourt-Speaker affairs is dangerous as it is giving the Head of State powers he does not have.
And Sangwa says no one can interfere in the operations of the Judiciary, not even the President.
The constitutional lawyer was reacting to Kabimba’s sentiments that President Lungu should intervene in the conflict between Speaker of the National Assembly Dr Patrick Matibini and the Constitutional Court, saying if left unchecked, there would be a direct conflict between the Legislature and the Judiciary in the near future.
However, in an interview, Sangwa said the President was not superior, adding that Kabimba’s sentiments were the kind that made the Head of State feel like he is above the law.
“These are the guys who advocate for more powers in the President than the President actually has. The President is not superior. Those kinds of sentiments are the kind of sentiments that make the President look larger than life. What you have are three separate arms of government: you have the President, Parliament and the Judiciary. All these institutions are equal. I respect Wynter, I consider him to be my elder brother, but statements like that are very dangerous because they are not founded on the law. The issue here, whatever is perceived to be a conflict is not actually a conflict. The solution is in the Constitution. It’s a normal way of these institutions’ working. This one will push back, another one will push back [but] at the end of the day, they will find a balance,” Sangwa said.
Sangwa insisted that if President Lungu was to intervene, he would not only be violating the independence of the Judiciary, but would also be interfering in the operations of the Office of the Speaker.
“It does not require the President to intervene, and in any case, how is the President going to intervene?…He’s going to intervene where? Where’s he going to get the power to intervene? There are no provisions. First of all, the powers of the President does not include resolving the imagined conflict. And if the President was to do that, he would be violating both the independence of the Judiciary and he will be interfering in the operations of the Office of the Speaker. The Speaker is the head of the National Assembly, he is elected by the Assembly, he is independent. The President is also there. In fact, the policeman here is the Judiciary. The Court is there to make sure that the Speaker behaves, it’s there to make sure that the President also behaves,” he said.
And Sangwa said no one could tell the Judiciary what to do, not even the President or the Speaker.
He cautioned that Kabimba’s statement could actually undermine the independence of the Judiciary if acted upon.
“The Speaker cannot overrule what the Constitutional Court says, but the Constitutional Court can overrule anyone, including the Speaker and the President in terms of whatever they say. In fact, there’s an express position in the Constitution to say the Judiciary is independent. Nobody can tell the judges what they can do. Nobody can interfere. Not even the President can interfere in the operations of the Judiciary, it’s there, expressly stated in the Constitution. Nobody can tell the courts what they can or cannot do. They are independent. And these statements actually undermine the independence of the Judiciary, if carried forward,” Sangwa said.
“And these are statements, which try and give the President more powers than he actually has under the law. At the end of the day, there’s actually no conflict because the Court has already pronounced. What the Court has said is the law, finished. What conflict is there? There’s no conflict. What the Court has said is the law, not what Matibini has said. What Matibini has said is the law within the National Assembly, but that has been overruled by the Constitutional Court.”
Sangwa added that Kabimba’s remarks were actually in violation of Article 122 of the Constitution.
“The Speaker had a right to express his own opinion and make his own rulings within the Assembly. It’s fine, it’s permitted. But when there’s an aggrieved member of the National Assembly who goes to court and the court pronounces on that particular grievance, the pronouncement of the Constitutional Court becomes law, which is binding on the Assembly, which is binding on the Speaker,” said Sangwa.
“No person, no authority can tell the Judiciary what to do. What Wynter is talking about is actually in violation of Article 122 of the Constitution. Whether you agree with the Court or not, you have to respect their independence, you cannot interfere. Because of the enormous power they will, the fact that once a judge has been appointed, you cannot tell them what to do, that power can only be vested in the person that is properly qualified. The fact that you have appointed them, then you have faith in them. If you have faith in them, then you must accept their decisions. We can criticize, but we cannot tell them what to do.”
2 Responses
Sangwa is super intelligent kabimba is too but he’s luck of consideration is making sangwa bigger than him
Separation of powers could be conceived in cyclical terms. That is, each wheel is turning for the cycle to move forwards or backwards. But why move in the first place? Separation of powers could also be conceived in hierarchical terms. That is, putting judiciary above both legislature and executive as per American doctrine. However, it would be more realistic in the context of this country to rehabilitate the executive function. Take for instance the presidential exercise of clemency. Is clemency a direct affront on the independence of the judiciary or not? The exception defined the rule? The presidential guardianship of the independence of the judiciary implies that a president could intervene when the judiciary is threatened. The threat could depend on the appreciation of the presidency. With hindsight, president is number one because president is elected directly by the majority of countrymen and countrywomen. President enjoys immunity from prosecution during the mandate, except impeached. In France, the concept of oversee integrity of state institutions and defending of the constitution implies that the determination of vital national interests also falls under presidential powers. Whether or not contradicting a Constitutional Court ruling was integral enough was a matter of public debate. However, a case of contempt needed to be determined by the same Constitutional Court. In any case, such public criticisms without peer review could undermine the doctrine of fountain of justice.