I wish to answer Hon Cheleman Nshitima point by point. First Mr. Nshitima asserts that, “precedent….is only binding on inferior courts and cannot superimpose statute law.” He defines precedent law as laws “made by activist judges.” What Mr. Nshitima is saying here is very good philosophical and social arguments but is definitely not found on law nor is it found on common law jurisprudence. In the case of the Supreme Court case of “Lewanika and others v. Frederick Chiluba,” I would be anxious to find out who among the judges of that case was an activist judge. Mr. Nshitima may wish to know that the “Chiluba” case was presided over by all the nine members of the Supreme Court of Zambia. I do not understand where he gets the idea that the nine justices were activist with regard to this ruling.
In saying that precedent law is binding on inferior courts, Mr. Nshitima is right. When a higher court in a hierarchy makes a ruling on a matter, this ruling creates a precedence that all lower courts must follow. But what Mr. Nshitima neglects to mention is that when the Supreme Court rules on a matter, that ruling does not only bind all lower courts, but it also becomes binding law.
When Mr. Nshitima argues that case law cannot superimpose on statute law, Mr. Nshitima is wrong at law. This is for several reasons. Whereas in keeping with the principle of separation of powers, parliament makes law, in Zambian legal jurisprudence however, parliament is not sovereign. The High Court of Zambia can effectively strike down an act of parliament that is repugnant to the Constitution of Zambia. The High Court of Zambia has in fact done this on several occasions. It was during the Chiluba presidency when the High Court ruled that the Public Order Act was unconstitutional and struck it down. As such, this idea peddled by some of our people that case law cannot superimpose on statute law is just not legally right!
The second idea advanced by Mr. Nshitima that a precedent created by the Supreme Court has a short life has no consequence to my argument on the eligibility of Guy Scott to serve as President of the Republic of Zambia. The life span of a law, has got nothing to do with its legal validity. The fact that a law can be amended at any time does not affect the effectiveness or validity of its application. The argument that “Chiluba” is irrelevant simply because it may have a short time span is a stale argument. “Chiluba” is law, and is binding now. Legal analysis is not about what ought to be, but rather what is currently law.
Mr. Nshitima’s argument is also questionable in the sense that it is circular. If case law is unreliable simply because the Supreme Court can overrule itself, then it follows that statute law too is unreliable since parliament can change and amend law at any time. So should we ignore statutes simply because they might have a short life span? Mr. Nshitima is wrong on this point.
I like Mr. Nshitima’s assertions on the separation of powers. I like what he has said: parliament makes laws, and the judiciary interprets them. When it comes to Article 34 (3) (c), then following along the arguments of Hon Nshitima, parliament made the law, i.e Article 34 (3) (c) and then the judiciary interpreted it in the case of “Lewanika and others v Frederick Chiluba.” It then follows that my insistence on respecting the interpretive role of the Supreme Court in this matter is born out of a deep respect for the principle of the separation of powers. Mr. Nshitima cannot have it both ways. It is either he follows through his arguments or not. He cannot be both for the principle of separation of powers and against it at the same time.
In view of the above, Mr. Nshitima’s assertions that, “there is always a conflict between the legislature and the judicially (sic) when it comes to making of laws but as expected the legislature takes the day because they have the duty and mandate to make laws.” It is true that the legislature has the mandate to make laws, but it is not true that the legislature should take the day. I must inform the Mr. Nshitima again that if parliament makes a law that abrogates the constitution, parliament will “not carry the day”; the High Court if petitioned has the power to overrule an unconstitutional law!
Mr. Nshitima asserts that case laws, precedents and what he calls “judicial law” will only thrive in a situation where there is vacuum in statute. Mr. Nshitima is partially right. The courts usually come in to cure a lacuna. But the role of the courts is simply more than that. Courts do not just exists to fill in the blanks as being asserted by Mr. Nshitima. Courts exist to interpret the law. It is quite ironic that in our constitutional system, while the law making role is the preserve of parliament, clarifying that law is never its preserve but falls on the judiciary. And so parliament may make a law thinking one thing, and yet when interpreting it, the judiciary may interpret it in ways never contemplated by parliament. As such, parliament may have passed Article 43 (3) (c) to disqualify Kaunda, but when ruling on the matter the judiciary in fact qualified Kaunda.
But why is this the case? Simply put. Judges are not psychics. They do not have the ability to read the minds of parliamentarians. They make rulings and interpret law based on the written text. In fact, it has been the heritage of our jurisprudence that even parliamentary debates are sparingly used in judicial interpretation. It was only very recently in the 1992 Hart case that the Supreme Court of the United Kingdom (formerly known as the House of Lords) accepted the use of the Hansard in court.
In conclusion then, with regard to Article 34 (3) (c) the judges had a look at it. The Supreme Court was petitioned by Lewanika and others to disqualify Chiluba because he may have had a non-Zambian parent. In fact, Lewanika and others brought a Mr. Chabala Kafupi who testified that he was the father of Chiluba and that Chiluba was born to him in the Congo. Kafupi further testified that he was a Congolese at the time Chiluba was born and that he (Kafupi) only became a citizen of Zambia by naturalization when he acquired an NRC card in 1965.
The courts read the article in questions and their interpretation should be respected as forming a part of our constitutional jurisprudence. If Mr. Chabala Kafupi left that court as a bitter loser, Zambian law should be grateful because Mr. Chabala Kafupi has helped the development of our laws, from constitutional law to the citizenship laws. As such, Chabala Kafupi helps Guy Scott in ways that President Frederick Chiluba never lived to see. Guy Scott and Frederick Chiluba have very similar facts that it is my opinion that if Guy Scott were challenged on the grounds of Article 34 (3) (c), the courts would follow Chiluba!