The decision by the Judiciary to bar State Counsel John Sangwa from appearing in any Zambian court on grounds that he disrespected the Constitutional Court has left us dumbfounded. This is unbelievable. One doesn’t need to be a lawyer to see that there is something wrong with this decision. In fact, there are so many things that are wrong about it.
When the Supreme Court of Zambia sent journalist Derrick Sinjela to prison for contempt of court after he accused the judges of being corrupt, we raised a concern. We took issue with the processes that resulted in the incarceration of the Rainbow Newspaper Editor-in-chief. In that Sinjela and Gregory Chifire case, we noted that the judges who felt personally insulted by Editor Sinjela used their powerful positions in the Judiciary to punish an individual for offending them.
This is the same thing that we are seeing in this case of John Sangwa SC. We are not lawyers, but surely there is something very troubling about this issue. One of the principles we know that govern the way courts operate is that no one should be a judge in his or her own case. If you are the aggrieved person, there is no way you can be expected to be fair when judging your transgressor.
The Judiciary has acted as a complainant and reported Mr Sangwa to the Law Association of Zambia (LAZ) for professional misconduct, but it has already decided to mete out harsh punishment on him. What’s the point? How can a complainant be a judge in his or her own matter? Which law have they used to arrive at this decision? What crime has Sangwa committed to deserve this punishment?
All power should be checked. No one should exercise power that cannot be checked. When one seeks to be above the law or refuses to be questioned, it means they have lost the desire to serve the people and are bent on self preservation. The freedoms that we enjoy today are not a luxury; they are a necessary ingredient for civilised co-existence.
If we may ask; why haven’t the aggrieved judges sued Sangwa for defamation? If you get a job for which you believe you are duly qualified, then someone comes and says ‘you are illegally in that office because you are not qualified or you have fake qualifications’, that’s a clear case of defamation of character – unless the accuser is right. That’s what an aggrieved person would normally do in such a case. When you become a judge, it does not mean you lose your rights as a citizen, you also have the right to seek protection from the law. What the judiciary has done is an extra judicial measure and it’s illegal.
It’s like you punch a police officer in the face, no matter how painful it feels, that police officer cannot take you straight to prison without trying you in court. He has to arrest, charge you and take you to court to explain why you punched an officer of the law. You don’t exercise power just because you have it, no! There are guidelines.
The people of Zambia must remember that Sangwa questioned the qualifications of the judges as individuals. He has nothing against the Constitutional Court as an institution, his issue is the people appointed to preside over this very important court. His claim is that none of the judges is qualified because they have never practiced law, let alone for 15 years. His problem is that the people of Zambia are being underserved because the judgments that are coming from this court are confusing the people rather than interpreting the law.
Now what is shocking is that the entire judiciary has risen against this one lawyer. Why? If Chishimba Kambwili, for example, accuses Magistrate David Simusamba of being corrupt and getting bribes from people who appear before his court, we don’t expect the whole judiciary to rise in defence of the Magistrate without first appreciating what evidence the accuser has. Mr Sangwa never said all the judges in the judiciary are unqualified, he specifically pointed out those in the Constitutional Court.
How will Mr Sangwa defend himself? Who is the accuser? Who is the complainant of his misconduct? The whole judiciary? It doesn’t make sense. Since the whole judiciary has already taken its position and they have also reported him to LAZ, what will happen if LAZ decides to unfairly shut down his law firm? Where will Mr Sangwa go to find justice?
And Mr Sangwa did not make this claim behind their backs, he has previously officially written to the President and to the Chief Justice, expressing this concern. Why didn’t they ban him at that point?
The answer is simple, the banning of Sangwa is not because he has attacked the Constitutional Court judges, this is about the ‘gospel’ that he has been preaching that President Edgar Lungu does not qualify to stand again in 2021. The people of Zambia didn’t know this, Sangwa has opened their eyes, and State House is not happy about it. This is the reason why Sangwa’s ban has come at this time, they don’t want him to continue fighting the third term bid.
This judicial bullying has to be stopped. This method of demanding respect for the courts is draconian. Yes, some people may fear criticising judges, but that is not the same thing as respect. Fear may be used to subdue people’s behaviour, but it cannot change perception; if anything, it only adds to the mistrust.
This is what the courts should be concerned about. It is not whether or not people fear the courts or judges; it is whether they respect the courts and what they do. How this will be achieved is to ensure that our people view the work of the Judiciary as work in their interest.
If the judges conduct themselves in such a way that the public believe them to be acting in the best interest of the nation, the courts will not have to imprison anyone or ban any lawyer. It is the public that is going to protect the Judiciary. The public will not accept the unfair criticism of the Judiciary because they will view such criticism as an attack on their interest.
Banning Mr Sangwa will not change the perception that there is something very wrong about our Constitutional Court. Something needs to be done to restore the respect and confidence of the public in our Judiciary. The Constitutional Court judges need to look at themselves and be very honest; is it not true that they are not qualified? If it’s true, balila chani?