HH Told to Abolish CONCOUT & Subject all Judges to a Vetting Process

Hakainde and Mutale Nalumango confer

UNIVERSITY of Zambia law lecturers Felicity Kayumba Kalunga, O’Brien Kaaba and Pamela Towela Sambo have called for a fresh start to the Judiciary and abolishing the Constitutional Court.

The trio has also proposed that all judges must be subjected to a vetting process akin to the Kenyan process to help fix some of the many problems faced by the Judiciary today, such as the appointment and promotion of questionable characters to higher judicial office.

The lecturers say a competent, impartial, and courageous Judiciary was the bulwark of democracy, serving as the guardian of the Constitution, defends the weak and disciplines the government.

They noted that under the PF reign, Zambia experienced the worst form of partisan judicialisation of politics by the PF government and its allies.

“The incoming United Party for National Development (UPND) government has promised, as a priority, to restore the rule of law, among other governance interests. We opine that the restoration of the rule of law should prioritise judicial reforms, and in particular, address, with utmost urgency, the existence of the Constitutional Court,” they suggested, in a write-up to be published in full tomorrow in The Mast. “We urge the new administration to abolish the Constitutional Court and rebuild the entire judiciary from scratch by requiring all judges to under-go a mandatory vetting process and dismissing all the judges who will fail the vetting process.”

The lecturers have advanced two reasons for abolishing the ConCourt – the Constitution and the jurisdiction of the court and the quality of the judgments rendered by the court.

They argue that with the coming of the ConCourt there emerged contradictory jurisprudence, which was a real real problem for a country like Zambia which follows and strictly applies the common law doctrine of precedents, where such precedents are seen as having the force of law.

“The second justification for our proposal to abolish the Constitutional Court emanates from our preliminary analysis of the quality of decisions so far made by the Constitutional Court in selected cases. By way of setting the context, a functional judiciary sets the tone for the rule of law in the country. When a judiciary is not committed to the rule of law, it inevitably sends a clear message that impunity is acceptable and such a judiciary or court is deemed to be weaponised against both the people and the values that it should foster,” the trio argues. “Instead of defending democracy, such a court cultivates a climate of lawlessness and leaves the country in a state of crisis. In relation to the pre-2010 governance crisis in Kenya, a report by Africa Watch, for example, observed that: ‘At the heart of the human crisis in Kenya is the lack of an independent judiciary. Courts are used to dispose of political opponents and critics. On a broader basis, the courts have become a weapon for the powerful and wealthy to settle personal vendettas and local disputes’.”

The trio assert that this is exactly what the Zambian Constitutional Court had reduced itself to in recent years.

“It became an acolyte of the corrupt and lawless. The Constitutional Court was unabashedly biased in favour of the Executive and the ruling party cadres in its judgments. The Constitutional Court went to the extent of disregarding well known and established legal principles and standards of legal reasoning expected of a competent court interpreting the supreme law,” they asserted. “Examples include the decisions of the Constitutional Court to vacate the 2016 presidential election petition without hearing it; deliberately misinterpreting the Constitution in order to allow former President Edgar Lungu to run for a third term of office; the refusal to enforce the constitutional provision requiring public loans to be approved by Parliament; paving the way for desecration of the Constitution by allowing the Constitutional Amendment Bill No. 10 of 2019 to proceed; refusing to amend the presidential candidates’ affidavit to make clear the presidential two-term limits and condemnation of the petitioner, John Sangwa, to costs in the same case; approving the manifestly dubious and lawless removal of DPP Mutembo Nchito, and many other similarly bewildering cases.”

The lecturers says almost all the time, the Constitutional Court had disappointed the country when it was needed the most to check government actions and stall the then rapidly growing autocratisation.

“The judges of the Constitutional Court by their judgments, with the exception of a few dissenting opinions notably by Justice Margaret Munalula, were the negation of the values a judge should live by, as articulated by Lord Bingham: ‘strong character, powerful intellect, great learning, courage, wisdom, eloquence, [and] robust common sense’,” they state. “Although we firmly believe that the Constitutional Court should as a priority be abolished, we hold the view that reforms to the Judiciary should not end there. There is need to overhaul the entire judiciary. Such an approach would help ‘fix’ some of the many problems faced by the Judiciary today, such as the appointment and promotion of questionable characters to higher judicial office. The Judiciary is now staffed by many pliant judges appointed not for their competence, professionalism, or integrity but for narrow political reasons.”


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