SUPREME Court justice and former Attorney General Dr Mumba Malila has observed that many judiciaries in the African region are still reeling from the devastating effects of political intimidation.

In an article titled “Righting the wrongs: Justice Clever Mule Musumali’s legacy of judicial activism revisited”, and posted on AFRICANLII 1, Dr Malila stated political intimidation of African judiciaries had undermined their confidence to check on executive excesses and the blatant disregard of the rule of law.

“It is undeniable that, perhaps with the general exception of the Kenyan, Malawian and South African judiciaries, which have consistently acquitted themselves fairly well and with remarkable decency too, especially in recent times, many judiciaries in the African region are still reeling from the devastating effects of political intimidation that has undermined their confidence to check on executive excesses and the blatant disregard of the rule of law. They are reproachable, not because they lack the intellectual equipment to wither political shenanigans but because, on balance, retreating into that unhealthy sense of judicial-restraint for fear of reprisals, is viewed as a safer option,” Dr Malila stated.

“Sometimes, that attitude is also inspired by individual judges’ personal ambitions and, in some cases, political patronage or the hope for elevation. This significantly limits the potential for appropriate, albeit sometimes, politically indigestible verdicts but which would nonetheless advance constitutionality and respect for human rights. The tendency of African judiciaries to succumb to resigned acquiescence and to retreat into tranquil comfort zones when judicial leadership matters the most, has invariably led, in many African countries, to subverted justice. This has subliminally contributed to a breakdown in the rule of law. To that extent, therefore, Odinkalu’s sentiments as quoted above are aptly justified. And yet, in the Zambian situation, it may interest jurisprudents concerned with the apparently debilitating problem of judicial passivity to learn that at least one judge could possibly lay claim to exemption from implication in this general judicial malaise: the late Mr. Justice Clever Mule Musumali, a significant judge of the Supreme Court of Zambia.”

He stated that many judiciaries in Africa had been carped for their allegedly complicit role in the violation of constitutions and the undermining of the rule of law in the post-independence state.

“In this connection, an African human rights lawyer once lamented that ‘the judiciaries in common law African countries must take substantial responsibility for the collapse of constitutional government. The Judiciary in many of these countries deliberately and knowingly abdicated its constitutional role to protect human rights and, in many cases, actively connived in the subversion of constitutional rule and constitutional rights by the executive arm of government’,” Dr Malila stated.

He further stated that many judiciaries in fledgling African democracies faced insurmountable obstacles.

“Generally speaking, the extent of intolerance to opposing political views tends to be higher in developing democracies than in more consolidated ones. Constitutionalism and the rule of law remain fragile as incumbency and political privilege are routinely abused. The temptation for the governors to rule in perpetuity and their yearning to hold on to power at all costs, even at the expense of respecting the rule of law and constitutionality, manifests through the administration of public affairs,” Dr Malila stated.

He stated that it was unsurprising that many national courts in Africa had sometimes tended to be reluctant to interpret the fundamental rights enshrined in their postcolonial bills of rights in light of international norms.

“In their work, judges, especially good ones, must, upon evaluation of competing interests, curtail wherever possible, the entrenchment of self-serving standards set by public officials, including political officeholders, and stem the tendency to circumvent the rule of law, violation of fundamental rights and the entrenchment of impunity. As ‘umpires’ in the democratic process, they are expected to ensure that a climate of legality prevails, a leveled playing field is created and maintained and legal protection afforded to those who stand disadvantaged,” Dr Malila stated.

He noted that there was, in this regard, a generally self-limiting judicial attitude.

“This was evidently the case in the one-party era in Zambia. If one looked back in time, one would find numerous instances of the restricted approach of the courts when it came to delivering a just result where the position of the domestic law may not have been clear,” Dr Malila stated.

He stated that Zambia was a party to numerous international and regional human rights instruments but followed a dualist approach, which meant that the treaties and instruments required implementing legislation or domestication.

“Zambia is a party to numerous international and regional human rights instruments, key among which are the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the Convention on the Rights of the Child (CRC)25, the African Charter on Human and People’ s Rights (ACHPR),[28] and the Protocol to the African Charter on Human and People’s Right on the Rights of Women in Africa (the Maputo Protocol). In addition some of the sub regional organisations of which Zambia is party have adopted regional instruments,” Dr Malila said.

He stated that international instruments were not self-executing and required legislative implementation to be effective in Zambia as law.

“For a long time, the courts in Zambia maintained a non-committal attitude towards international human rights standards as set out in treaties to which Zambia is a party. Neither the state nor the courts seemed inclined to move away from the fixed position that unless a treaty was domesticated; its provisions could not be relied upon in domestic litigation. The position as obtaining was repeatedly explained by the Zambian government in its engagement with treaty bodies during the presentation of periodic reports. On one such exchange, the government explained that: Zambia has ratified regional instruments for the protection and promotion of human rights and fundamental freedoms,” Dr Malila stated.

He stated that while the average Zambian judge remained generally reluctant to rely upon international and comparative law sources, there was progressively a world movement towards discarding that restrained stance by judiciaries, particularly to human rights cases.

”A discernibly novel approach, which assumed a more protective deportment of human rights, factoring into the interpretation equation, international human rights norms, was quickly taking root. This new course had something to do with the series of meetings underwritten by the Secretariat of the Commonwealth of Nations, where judges from around common law jurisdictions assembled to deliberate the topic of the domestic application of international human rights norms,” Dr Malila stated.

He stated that many Zambian societies still embraced internalised value systems based on their traditions and culture which conflicted with provisions of the Zambian bill of rights.

“This is where, in his work as a judge, Mr Justice Musumali stood tall and responded to calls made within the framework of the Bangalore Principles. In the process he made a significant difference. Although this writer has not been able to establish whether Mr Justice Musumali was a participant in those Commonwealth of Nations sponsored high level meetings, his judgments resonated with the spirit of the Bangalore Principles in a manner the late Chief Justice Dumbutchena of Zimbabwe, who regularly participated in those judicial colloquia, articulated it when he stated that ‘ In order to advance human rights through the courts there are two essentials to be met. The judge’s personal philosophy must have a bias in favour of fairness and justice. There must exist an activist court. Judicial activism in human rights cases is a prerequisite for the development of human rights jurisprudence’,” Dr Malila stated.

“On the cultural front, many Zambian societies still embrace internalised value systems based on their traditions and culture. Many of these values conflict with provisions of the Zambian bill of rights and a plethora of international and regional human rights standards including those mentioned above to which Zambia has subscribed. Considerable human rights violations occur under the façade of observing custom and tradition some of which are archaic and plainly undermine the dignity of the human person. Defilements justified under traditional beliefs and customs, child labour, marrying off of underage children, marriage and cleansing practices, polygamy, ill treatment and dehumanisation of suspected witchcraft practitioners and failure to observe due process requirements by traditional authorities in their courts as they administer customary law, are but part of a long catalogue of customary law related human rights violations.”

He stated that the country needed judges to take up the challenge and interpret both constitutional provisions and international conventions.

“Unless the reality of culture and its impact on human rights to its fullest extent is internalised and admitted, neither the existence of a perfect bill of rights, nor a full corpus of international human rights law and standards will do much to stop the practice of contesting some human rights on the basis of tradition and culture,” Dr Malila stated.

He stated that Justice Musumali’s human rights judgements were monuments of his intellectual energy.

“Justice Musumali’s bravery in his efforts to ensure the observance of the rule of law and respect for human rights is unimpeachable. Some of the methods he used to better the grieving applicants who came with different complaints before him are remarkable for their ingenuity, allure, vividness and outstanding quality,” stated Dr Malila.