Tag: constitutional court

    The law can only work for people when laws are fair

    The law can only work for people when laws are fair Featured

    March 20, 2021 by Socialist Party Zambia in

    There’s a mushrooming kerfuffle over the grade 12 minimum academic qualification required by the Constitution for one to stand as a councillor, member of parliament, council chairperson, mayor and President. Many people in our politics don’t seem to have it.

    In the 2016 elections there was a more loose or liberal interpretation of this constitutional requirement. It was easy to meet this requirement. Last week’s Constitutional Court interpretation made it very difficult for many people to meet this requirement. The literary interpretation of this constitutional provision given by the Constitutional Court doesn’t seem acceptable to many people. It seems to have produced an absurd result.

    The absurd result principle in statutory interpretation provides an exception to the rule that a statute should be interpreted according to its plain meaning. In an age of increasing debate about the proper approach to statutory interpretation, and of increasing emphasis on literal approaches, the absurd result principle poses intriguing challenges to literalism and to theories of interpretation generally. The absurd result principle is extraordinarily powerful. It authorises a judge to ignore a statute’s plain words in order to avoid the outcome those words would require in a particular situation. This is a radical thing; judges are not supposed to rewrite laws.

    Ordinarily, such actions would be condemned as a usurpation of the legislative role, an unconstitutional violation of the separation of powers. Even when a genuine question exists about the actual meaning of the statute’s words, it is generally considered to be illegitimate for a judge to make the choice between possible meanings on the basis that the real-life result of one meaning strikes the judge as somehow objectionable. The absurd result principle apparently gives just that power and authority to a judge. Yet this principle enjoys almost universal endorsement, even by those who are the most critical of judicial discretion and most insistent that the words of the statute are the only legitimate basis of interpretation.

    The law can only work for people when laws are fair. This grade 12 requirement, as interpreted by the Constitutional Court, has let people down. The grade 12 requirement is perceived as outright unjust by the majority of the people. This is an outright case of utilising improper means for the pursuit of an apparently legitimate goal. It has generated requirements that do not reflect the values of the underlying population. Today individuals are facing legal prohibitions that conflict with their sense of justice or fairness.

    Unjust laws like these can be opposed through protest. Social opposition to unjust laws may trigger social norms that can have countervailing effects on legal intervention.

    The inadequacies they were trying to address with the grade 12 requirement could have been dealt with differently. If there’s a deficiency of language – English language – the solution is not to bar those not proficient in English but to allow them to use languages they are fluent in. Other things they don’t understand – economics, law, security – can be taught to them as they perform their duties as councillors, council chairpersons, mayors, parliamentarians or presidents.

    This constitutional provision only goes to show the class nature, the elite domination of our society. This is why this year we need to usher in a government of the humble, by the humble for the humble – a socialist government. Only under a socialist government can we truly have justice, equity and peace.

    Fred M’membe

    President of the Socialist Party

    A court without credibility is not a court

    A court without credibility is not a court Featured

    December 2, 2020 by Socialist Party Zambia in

    The performance of our Constitutional Court falls far below acceptable or tolerable levels of inefficiency, ineffectiveness and incompetence.

    Many people have raised concerns about the work of our Constitutional Court but no one seems to be willing to listen. It’s like they have put cotton wool in their ears.

    But it is too dangerous for the Constitutional Court to continue on this path and in this way. A court without credibility is not a court. Our judges shouldn’t fear criticism because the truth is on the side of those who are honest.

    With criticism they can get rid of a bad style and keep the good.As we say, dust will accumulate if a room is not cleaned regularly, our faces will get dirty if they are not washed regularly.

    Our minds and our work may also collect dust, and also need sweeping and washing. The proverb “Running water is never stale and a door-hinge is never worm-eaten” means that constant motion prevents the inroads of germs and other organisms. To check up regularly on our work and in the process develop an honest style of work, to fear neither criticism nor self-criticism, and to apply such good popular maxims as “Say all you know and say it without reserve”, “Blame not the speaker but be warned by his words” and “Correct mistakes if you have committed them and guard against them if you have not” – this is the only effective way to prevent all kinds of dust and germs from contaminating our minds.

    Let’s learn from past mistakes to avoid future ones. And let’s cure the sickness to save the patient. The mistakes of the past must be exposed without sparing anyone’s sensibilities; it is necessary to analyze and criticize what was bad in the past with a scientific attitude so that work in the future will be done more carefully and done better. This is what is meant by “learn from past mistakes to avoid future ones”. But our aim in exposing errors and criticizing shortcomings, like that of a doctor curing a sickness, is solely to save the patient and not to doctor him to death. A person with appendicitis is saved when the surgeon removes his appendix. So long as a person who has made mistakes does not hide his sickness for fear of treatment or persist in his mistakes until he is beyond cure, so long as he honestly and sincerely wishes to be cured and to mend his ways, we should welcome him and cure his sickness so that he can become a good person. We can never succeed if we just let ourselves go and lash out at him. In treating a malady, one must never be rough and rash but must adopt the approach of “curing the sickness to save the patient”, which is the only correct and effective method.

    Another point that should be mentioned in connection with criticism is that some people ignore the major issues and confine their attention to minor points when they make their criticism. They do not understand that the main task of criticism is to point out mistakes. As to personal shortcomings, unless they are related to mistakes, there is no need to be overcritical or the individuals concerned will be at a loss as to what to do. Moreover, once such criticism develops, there is the great danger that attention will be concentrated exclusively on minor faults, and everyone will become timid and overcautious and forget their tasks.

    In criticism, guard against subjectivism, arbitrariness and the vulgarization of criticism; statements should be based on facts.If we have shortcomings, we are not afraid to have them pointed out and criticized, because we serve the people. Anyone, no matter who, may point out our shortcomings. If he is right, we should correct them. If what he proposes will benefit the people, we will act upon it.

    We must not become complacent over any success. We should check our complacency and constantly criticize our shortcomings, just as we should wash our faces or sweep the floor every day to remove the dirt and keep them clean.

    As for criticism, do it in good time; don’t get into the habit of criticizing only after the event. Taught by mistakes and setbacks, we become wiser and handle our affairs better. It is hard for any person to avoid mistakes, but we should make as few as possible. Once a mistake is made, we should correct it, and the more quickly and thoroughly the better.

    Dr O’Brien Kaaba and Dr Pamela Towela Sambo, law lecturers at the University of Zambia, have accused the Constitutional Court of having done more harm to constitutionalism than promoting its values.

    “A judiciary committed to constitutionalism should interpret the Constitution in a manner that promotes the realization of its underlying values, not to undermine them. Judging by the Mutembo Nchito judgment, it is hard to see how the Constitutional Court’s decision safeguards the integrity of the Constitution and advances the rule of law and constitutionalism. Perhaps it was for this reason that Supreme Court judge Mumba Malila, in a recently published and well-articulated article penned in honour of the late justice [Claver] Musumali, virulently admonished his colleagues in the Zambian judiciary…When will the Zambian judges take up this challenge and heed justice Malila’s plea?” they ask, concluding that the Constitutional Court has placed itself as a tool to champion the cause of the executive. “To borrow Professor Michelo Hansungule’s words, Zambians have been looking for an ‘irritatingly independent’ Constitutional Court. Dare we ask, irritating to who?

    The answer is to all and sundry that are allergic to constitutionalism and the rule of law. The problem is that the Zambian Constitutional Court, judged by the depth of its jurisprudence, does not seem to fit into the legacy of other progressive Constitutional Courts such as the South African Constitutional Court. The latest demonstration of this is to be found in the recent decision of the Court relating to the removal of Mutembo Nchito as Director of Public Prosecutions.

    “It’s a pretty harsh criticism, and many judges would not want to hear that about themselves. In fact, many judges have no interest in hearing harsh criticism of themselves and some lawyers and other people, sometimes going to great lengths protect them.I’m quite sure this needed saying.

    Often when we’re confronted with criticism, our first instinct is to defend ourselves against the attack, especially when the attack comes from someone whom we think doesn’t know as much as we know ourselves.

    It would have been easy to dismiss what these law lecturers are saying, but it’s better to listen, evaluated their suggestions, and make changes.

    When you’re confronted with criticism, consider if the person knows about an area where you lack knowledge, and then consider making changes. It may save you future embarrassment. Taking criticism helps.

    I sometimes wonder how future generations will judge the work of this Constitutional Court of ours.

    I dare say that history may take a slightly more moderate view than that of some contemporary commentators. Distance is well-known to lend enchantment, even to the less attractive views. After all, it has the inestimable advantage of hindsight.

    But it can also lend an extra dimension to judgement, giving it a leavening of moderation and compassion – even of wisdom – that is sometimes lacking in the reactions of those whose task it is in life to offer instant opinions on all things great and small.

    No section of the community has all the virtues, neither does any have all the vices. I am quite sure that most people try to do their jobs as best they can, even if the result is not always entirely successful. He who has never failed to reach perfection has a right to be the harshest critic.

    There can be no doubt, of course, that criticism is good for people and institutions that are part of public life. No institution – presidency, judge, legislator, whatever – should expect to be free from the scrutiny of those who give it their loyalty and support, not to mention those who don’t.

    But we are all part of the same fabric of our national society and that scrutiny, by one part of another, can be just as effective if it is made with a touch of honesty, courage and understanding.This sort of questioning can also act, and it should do so, as an effective engine for change.

    Fred M’membe

    Mwika Royal Village, Chinsali

    Third term bid will end up in the Constitutional Court

    Third term bid will end up in the Constitutional Court Featured

    November 28, 2020 by Socialist Party Zambia in

    It is becoming clear that the issue of Mr Edgar Lungu’s third term eligibility will have to be decided by the Constitutional Court. It seems Mr Lungu, in his usual character of not backing down on anything he wants, will file in nomination papers with the Chief Justice to have his name on the ballot paper. I say this because huge volumes of campaign materials with his name have started flowing in. It won’t be easy to change this – the cost of doing so will be gigantic. And last minute presidential candidate changes will throw his party into quandary.

    But one wonders where this apparently assured confidence is coming from. The risk is too high to ignore. This means that those determined to stop him from contesting next year’s elections in the belief that it will be a violation of the Constitution will have no choice but to go to the Constitutional Court.

    Mr Lungu who says the Constitutional Court cleared him to stand must be ready for this. And, indeed, he seems to be ready, confident and assured all will go his way.

    Moreover, all the judges of the Constitutional Court were appointed by him. In 2016, this Constitutional Court came under heavy public criticism over the manner it had ended the election petition against him. And even the court itself was divided over that matter. These are the same Constitutional Court judges who will have to determine Mr Lungu’s presidential candidature in next year’s elections!

    Do legitimate issues of public trust, confidence in the Constitutional Court over this matter arise?

    All I can say is that an independent and efficient judiciary will be crucial to ensuring that the promises, fundamental values and principles enshrined in the Constitution of Zambia are upheld.
    Without an independent judiciary, the Constitution would be reduced to a statement of empty promises.

    Every institution has its moments of glory and challenge. The present are moments of challenge when courts have an accentuated duty to become conscious of Constitutional provisions when those in power begin to seek unending dominion. True to their oaths of office, judges must act without fear, favour, affection or ill will, for without an independent judiciary, the Constitution is little more than a statement of empty promises. The democratic credentials of our courts depend on the premise that all individuals are free and equal.

    Society will always have someone who will try to manipulate the law to the detriment of society. The solution lies in an ordered, principled and just adjudication. Our judiciary was ultimately trusted with the most important task of all i.e. ensuring that terms of the settlement, or the Constitution, were not breached.

    The Constitutional Court is the final interpreter of the Constitution. Together with the Supreme Court, the Court of Appeal and High Courts are tasked with the highest duty: checking the actions of both the executive and the legislature, each of whom are bound by the Constitution. Considering the enormity of this responsibility, insulating the courts ought to have been a matter of Constitutional design. No court can be expected to perform its checking functions with interference from other branches of Government.

    Judicial power should never be a facilitator for executive intentions. On the contrary, it has to be an interrogator or scrutineer of executive power.

    These are definitive moments when our courts need to reflect upon their own trajectory, their moral alignments and, most importantly, their duty to enhance hope. This is because our Constitution is supposed to be a document of hope.

    Initially, we all hoped that Mr Lungu would do the right thing. With Mr Lungu’s insistence on contesting next year’s presidential elections, now it all rests on the hope that judges of the Constitutional Court would do the right thing.

    Fred M’membe
    Mwika Royal Village, Chinsali