SUPREME Court justice Mumba Malila has written a paper describing the state of the Judiciary in Africa, in relation to political interference. He observed that many judiciaries in the African region are still reeling from the devastating effects of political intimidation.
We would like to comment on this very interesting observation, especially that it is coming from a learned judge who is still serving the Judiciary at a supreme level. But we are reminded of the warning we received from Mr Abyudi Shonga against what he calls “attacks on the Judiciary”. Mr Shonga, who is president of the Law Association of Zambia, has written a letter to our Newspaper, saying the last editorial opinion we published questioning the Patriotic Front’s insistence on President Edgar Lungu’s eligibility, was an attack on the judiciary and its “defenseless judges”.
We thought we must first respond to Mr Abyudi Shonga and show him where he got things wrong before we can go ahead to express our views on the observations raised by Justice Malila in our next editorial. It is important that we make things clear for the LAZ president because even though our editorial comment would merely be agreeing with Justice Malila, it may be misunderstood as an attack on the Judiciary by our brother who is now in charge of the association for lawyers.
We are surprised, as a newspaper, to learn that Mr Shonga considers our editorial opinion of September 22, 2020, and the questions we asked, as an attack on the judiciary. In fact, when we look at the letter from LAZ and the fact that it was copied to the Chief Justice, we can see a grave case of misunderstanding which can attract all sorts of reactions, including threats and intimidation on our part.
We believe that anyone who read our editorial opinion can tell that, rather than attack, we were acknowledging the duty of our judges to adjudicate matters without fear, influence or intimidation from people who hold political office. Our opinion did not, in any way, attack the judiciary. To the contrary, it puts a spotlight on the conduct of senior members of the ruling Patriotic Front who have consistently disregarded the binding decision of the Constitutional Court in this matter.
We would have thought that Mr Shonga’s LAZ would be applauding us for our efforts in protecting the independence of the Judiciary through our condemnation of lawless remarks from the party in power. We would have thought the LAZ president would instead be writing to the Patriotic Front and advising the party to desist from making statements that bring the autonomy of the judiciary into question.
If Mr Shonga has written to the Patriotic Front and advised them to desist from making the work of the Constitutional Court difficult, that is a commendable thing because there will come a time when questions will be asked about this conduct from the PF and what LAZ did about it. Our concern is that when the Court is moved to pronounce itself on the eligibility of the incumbent President, and it is decided that in fact, the Head of State qualifies to contest the 2021 elections, the public will have cause to believe that such a decision was politically motivated, or that there was undue pressure from the Executive, because of the same statements from the ruling party that we are condemning today. This is the message we were trying to communicate in our editorial comment .
So, we are at pains to understand how our brother, the learned State Counsel at LAZ, failed to apply context to the message delivered in the opinion complained about. If we are allowed to speak freely, we would add that Mr Shonga’s letter leaves us a bit confused because, in our view, we do not think it is possible that he can miss the context of a simple editorial opinion like the one in question. At the very least, we expected LAZ to notice that we were making a call for the separation of powers.
How can it be an attack on the judges when we question the ruling party’s insistence that the Constitutional Court already ruled that President Lungu is eligible to stand in 2021, when everyone, including LAZ agrees that this is not true? How can it be an attack on the judiciary to ask what gives the ruling party so much confidence that the Constitutional Court will rule in favour of the President?
If we stated it as a matter of fact that the judges have been compromised, LAZ would be in order to advise us to take that evidence to the Judicial Complaints Commission, but we did not. The context of our question was clear. In this case, we were asking a question to those who are undermining the ruling of the court. How can that be an attack on the judges?
As we will show in our next opinion, our judges deserve the support of every citizen, including us the media. This is not because they are defenceless, but because they are already operating under a very difficult and oppressive environment.
It might also be important for us to address the issue of judges being defenceless Although our editorial opinion was not written to criticize the judiciary in any way, we do not fully agree that judges are defenceless. This is not only because they have the right to sue in their individual capacity, but also because they do use their powers to defend themselves from time to time.
This is shown in the case of Journalist Derrick Sinjela and Civil rights activist Gregory Chifire. When the Supreme Court judges found the corruption accusations levelled against them defamatory, they proceeded to cite the accusers for contempt and the outcome of that court case is a matter of public knowledge. This brings us to LAZ’s caution about how we exercise our freedom of expression.
In the case of Editor Sinjela, Mr Shonga and everyone at LAZ are fully aware that the complainants in that case are the same judges that presided over the matter and sentenced their attackers without declaring any interest, or considering the so-called rules of natural justice. Is it the position of LAZ that, even in such a given example, citizens cannot publicly comment on that matter because the judges involved do not have the latitude to defend themselves? That, in our view, is not an accurate reflection of reality.
We are fully aware that the new LAZ executive has come with a fresh desire to contribute a positive change in the state of affairs in the country, and we support the approach that the association has taken. But we must also put it on record that we are a responsible news organisation that operates under a balanced and objective editorial policy. Therefore, we don’t see any wrongdoing on our part from the editorial opinion in question.
This is why we are searching for the real reasons why Mr Shonga has written this letter to us. We don’t think the message is contained in the words of the letter. As a newspaper, we feel the message is contained in the action itself. It would appear to us that some people at LAZ are not comfortable with our argument against President Lungu’s third term bid because we used the Association’s interpretation of the ConCourt judgement to deliver our point. If this is the case, we take it as a very unfortunate development. We pray and hope that Mr Shonga’s LAZ is not conceiving an idea of trying to instill fear in us. We don’t need LAZ on the list of intolerant institutions.
The media in Zambia is already operating under a delicate environment. If the association looks at the number of media houses that have been closed in the past five years, it will notice that our operating space has been shrinking as a consequence of intolerance from those who wield power. Therefore, it scares us that Mr Shonga’s LAZ is exercising similar intolerance to freedom of expression as that exhibited by the Patriotic Front. We also wish to bring it to the attention of Mr Shonga that when his Association writes such a letter to a private media house whose existence is already under threat, it gives political oppressors the impetus, basis and speed for effecting harsh decisions against the newspaper.
LAZ may wish to reconsider its approach as it seeks to provide counsel regarding freedom of speech and rule of law to the Fourth Estate, especially as we head towards a decisive general election that will need independent media to play its role. This is more so because the public media in Zambia does not provide a platform for citizens who hold opposing views to the government.
So, we agree with everything that Mr Shonga has done since he assumed office. But on this one, he is offside.