By E. Munshya, LLM, MBA, M.DIV.
On May 27, 2016, Justice Marvin Mwanamwambwa, the Deputy Chief Justice of Zambia and acting Chief Justice signed Statutory Instrument No. 37 of 2016 promulgating the rules of the Constitutional Court (C Court). It takes more than a Colosseum of judges to create a court system. Operationalisation of the Court simply means one thing: The Court can now begin its sittings as it now has the rules and the infrastructure to do so. I provide a commentary on the rules using a question and answer format.
What are Rules of the Constitutional Court?
In general terms, there are two elements to any court system: substantive law and procedural law. Substantive law concerns the law as it is and includes subjects such as criminal law, securities law, corporate law and estate law. Substantive law is the “what” of the law. Procedural law on the other hand is about procedures and rules of how parties and the court can best deal with legal disputes. Good legal practice does not subsist in the knowledge of substantive law alone, but in the knowledge of the nuances of rules of procedure. A court needs some form of order of how people can approach it and what forms, if any they can use. It would be unimaginable, for example, for people to just show up before a judge and tell her whatever grievances they have. It is the rules of court that explain how a petitioner can bring matters before a judge: first fill out a form, write down what you want, take it to the registry, swear that what you have written is true, and have the court officials schedule a date for you to appear before a judge. It is the rules that would appropriately explain the how and where of any legal process. In law, the what of the law is as important as the how and the when!
If the Constitutional Court ranks equivalently to the Supreme Court, why is Justice Mwanamwambwa signing the Statutory Instrument operationalising the Constitutional Court?
According to Zambia’s constitution, the C Court ranks equivalently to the S Court, and the respective heads of the C Court and S Court rank equivalently as well. However, the Chief Justice of Zambia remains the head of the judicial branch of government. In that capacity, as the head of the judiciary, the Chief Justice is administratively superior to the president of the Constitutional Court. It is in this capacity as acting head of the judiciary that Justice Mwanamwambwa promulgated rules of the Constitutional Court. The Constitutional Court is a new court and there will be birth pangs and perhaps a little clash between two of our highest courts. However, knowing the maturity and candor of the judges of both of our highest courts, I am very positive that any clashes will be handled with the greatest civility that has come to define the greatness of our nation and the stellar reputation of our judges.
Are Constitutional Court Rules similar to other Rules of Zambian courts?
Zambia, as a common law country, relies heavily upon court rules and legal procedures from England and Wales. So much for our pride of political independence. The rules of the C Court acknowledge the role of English legal procedure and provides that the Rules of the Court of Appeal of England and Wales would apply on any question that is not addressed in the rules promulgated under the hand of Deputy Chief Justice Mwanamwambwa. Both the High Court and the Supreme Court rules currently in force are surrogates of English rules.
What is so remarkable about these new rules?
The rules of the Constitutional Court are quite modern and take into account how business should be done in the age of the internet. The rules take into account information technology and modern devices. However, they go into too much detail about the technology that could be obsolete within a year or two. The rules could have done well to recognise the role of modern information technology without the need to actually specify the technology. Technology seems to change as quickly as we are blinking and the law will always have to play catch up. The recognition of e-filing, and scanning, and serving documents electronically is a very positive move and the Zambian judiciary must be commended for this modernization. Technology is expensive and it is my hope that the judiciary will have enough financial resources to implement its drive towards technology. In terms of modern technology, the rules ignore important aspects of modern technology: websites and blogs. While it goes on about books being relevant and admissible in court, the rules are silent about the relevance of blogs and internet sites. If books are valuable, a court that wants to recognise information technology should equally recognise the value of blogs such as eliasmunshya.com which is dedicated to academic discussion of both law and culture. Just for its recognition of information technology, the Rules should be commended. It is a great start.
Are the Rules easy to understand?
I think they are quite easy to comprehend. I like the simple language used in the Rules. A few ambiguous paragraphs exist here and there, but in general terms, I like the language of the rules. It will take some time though for both lawyers and laypeople alike to get used to the Rules. But they provide a very robust new beginning for our Constitutional Court. I would not recommend that citizens attempt to navigate through the legal and constitutional system on their own. It is always a good idea to enlist the help of a member of the Zambian Bar. Few as they seem to be, Zambian legal practitioners are committed to representing constitutional litigants and I have no doubt that they will help in the herald of this new legal dispensation.
Citation: Munshya, E. (2016). A New Legal Tradition: Commentary on the rules of Zambia’s Constitutional Court. Elias Munshya Blog. (www.eliasmunshya.org). July 3, 2016