Monthly Archives: September 2016

Zambia’s Constitutional Court Must Assume Concurrent Jurisdiction over the Bill of Rights: Here is why

By E. Munshya, LLM, MBA, MDIV

Where should Zambians go to enforce the Bill of Rights? Should it be the Constitutional Court (ConCourt)? Or the High Court? Or can Zambians go to both? Why can’t both the High Court and the Constitutional Court have concurrent jurisdiction? The rulings coming from the ConCourt seems to suggest that they do not want to have anything to do with the Bill of Rights. They are reading the current constitution too strictly. Honestly, we cannot have a divided jurisdiction where someone who has a constitutional question that engages the Bill of Rights will have to go to the High Court instead of receiving help from one court. I believe though that the ConCourt should assume jurisdiction over the Bill of Rights. It is the right thing to do.

The Zambian Bill of Rights is part of our constitution. It is the entrenched part of the constitution. Constitutional entrenchment is some kind of legal fiction, basically, stating that of all the constitutional provisions, the Bill of Rights is more deeply buried and much more difficult to amend. Whereas parliament can amend all the other parts of the constitution, a referendum is needed to change or amend the Bill of Rights. A referendum is needed so that there is direct input of the electorate into the entrenchment of the Bill of Rights. The Bill of Rights assures citizens of fundamental human rights such as the freedom of assembly, association and conscience. It also safeguards several fundamental rights such as the right to be heard and the protection from unreasonable search and seizure.

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E. Munshya

When at the beginning of the year 2016, President Edgar Lungu signed the 2016 amendments to the 1991 Constitution into law, he could not sign the new Bill of Rights into law as it needed the referendum. Well, on August 11, 2016 when the referendum was held, the new Bill of Rights was rejected as it did not meet the required threshold. This led to the failure of the referendum question. A new Bill of Rights was not entrenched leading to a situation where we have a new constitution (I am using “new” here even if it is just an amendment), with an old Bill of Rights. While Zambia has an amended constitution in almost all areas, one area that has remained unchanged is its Bill of Rights. Constitution 2016, however, established the Constitutional Court to be the highest court over constitutional matters. In some respects, such as a presidential petition, the ConCourt has original and final jurisdiction.

The proposed Bill of Rights, which was rejected on August 11, 2016, provided that the Constitutional Court would have jurisdiction over the Bill of Rights. However, after the failure of the referendum, the current Bill of Rights provides that those aggrieved may enforce the Bill of Rights only in the High Court. It is absurd to have a Constitutional Court that has no jurisdiction over the Bill of Rights. We must find a way to resolve this absurdity. I propose the following.

First, Zambia could hold another referendum and put a simpler question to the electorate. Instead of amending the whole Bill of Rights, it could be possible to simply ask the electorate to vote on giving the ConCourt jurisdiction over the Bill of Rights. This step would be quite expensive and after the recent elections, our people are quite tired of campaigns and voting. This route might prove difficult.

The second proposal is to ask that parliament passes an un-entrenched provision in the current constitution giving the Constitutional Court some jurisdiction over the Bill of Rights concurrent with the High Court. This should not be controversial as parliament does enjoy some level of sovereignty as the law maker and law giver in our democracy. While the entrenched provisions of our Bill of Rights are clear that parliament cannot unilaterally amend the Bill of Rights, the law should recognise parliament’s ability to help our courts enforce the Bill of Rights. By giving the ConCourt jurisdiction over the Bill of Rights, parliament is enforcing the law and showing strong fidelity to the rule of law.

The third proposal is directed at the Constitutional Court itself. The Court should peel away at its recent rulings and reclaim jurisdiction over the Bill of Rights. It is absurd that we should have a Constitutional Court which is refusing jurisdiction over helping citizens enforce their fundamental rights. The Bill of Rights is part of the Constitution, and the ConCourt has jurisdiction over the entire constitution. This entire constitution, I must submit, includes the Bill of Rights in spite of what the Bill of Rights says about jurisdiction. What happened during the presidential petition where Mr. Hichilema and Mr. Mwamba had to engage the High Court to enforce their rights under the Bill of Rights should have been avoided had the ConCourt accepted jurisdiction over the question. What is even more bizarre though is High Court Judge Chitabo’s ruling that he too could not accept jurisdiction over Mr. Hichilema’s fundamental rights as his case had already been handled by a court higher than his! Judge Chitabo played ping-pong and the Constitutional Court must stop this High Court-ConCourt ping-pong by assuming and accepting some jurisdiction over the Bill of Rights.

The fourth proposal is that if none of the three proposals above work, then the President should appoint the current ConCourt judges to the Lusaka High Court as well. In that case, they will be able to have both High Court and Constitutional Court jurisdiction. If we continue under the legal fiction that the Bill of Rights should be enforced in the High Court only, the ConCourt judges can circumvent that limitation by sitting as High Court judges. In that situation we will have a win-win situation. Those with Bill of Rights grievances can still go to the High Court, but those with constitutional issues that trigger the Bill of Rights can still be heard by ConCourt judges who also have concurrent High Court jurisdiction by virtue of parliamentary appointment.

Constitutional Court judges are best suited to handle the Bill of Rights. They should forthwith assume jurisdiction without fail.

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A Zambian holding three law degrees from England and Chicago, USA, Elias Munshya is a  seminary trained pentecostal minister practicing law in Alberta, Canada.

 

The Philosophy of Judicial Reasoning: Making sense of Zambian Constitutional Court’s “14-days” ruling

By E. Munshya, LLM, MBA, MDIV

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Of the Alberta Bar

The decision of the Constitutional Court to not hear Mr. Hichilema and Mr. Mwamba’s presidential electoral petition is really not about which of the several views expressed by the judges is “right” or “wrong”. Both the minority and the majority in the case may have been right. Judicial decision making is sometimes not about how judges choose the correct decision from an incorrect one, but how they choose between two competing decisions that could both be necessarily correct. A decision of the Constitutional Court does not become legally right because it is morally superior to an alternative decision, but it becomes legally right because it has been chosen by a majority of judges to be so. Judges do not objectively decide and select the inherently correct decision between competing decisions, rather the decision they make becomes legally right making their choice the law. Legally right or legally correct decisions become correct because judges say so and not because the decisions themselves are objectively or inherently correct.

To put it in other words, some legal questions do not have the objectively right or wrong answer. The question of 14 days does not rise or fall on what is right or what is wrong, but rather on the decision of the majority judges at a particular time. From the “14 days” decision of both the majority and the minority judges, it is clear that the decision could have gone either way. The 3-2 decision was very close and the Chibomba-Munalula minority may have carried the day had one more judge from the Sitali-Mulenga-Mulonda majority agreed with them. How do we make sense of this?

First, the law cannot objectively resolve most of our political problems. We need political solutions to political problems. The idea that we can always run to the court to resolve our political disputes is practically untenable. It takes more than the courts of law to make democracy work. For example, Justice Munalula in her minority opinion states that the ConCourt needed to hear the petition to provide some healing for the nation. The truth is there is no ruling from the ConCourt that would bring healing to the nation. Healing is not a product of legal shenanigans, it is a product of political will and action. The court cannot through evidence help heal a nation, in fact, it could lead to more difficulties.

Second, an over-reliance on judges for absolute and ultimate justice is a self-defeating goal. Human experience should make you realise that judges could rule against your position, not because it is a wrong position, but rather due to several other considerations. Maturity helps you deal with such disappointments.

Third, the idea that the law is blind is true only to an extent. There are several instances where the law is and should be blind, but no one in the common law tradition, world-over, has ever held the law to those blindfolded statues. The law may as well have feelings, eyes, and a big mouth. The law grows according to the magnanimity of those who lose under its breath, and win under its wind. Right from the likely tribal split of the Constitutional Court itself should give you an idea that the Court is not an objectively moral compass that churns out court rulings like a blindfolded woman. It is a little more complex than that.

Fourth, the philosophy, and practice, of law is very consistent with a liberal outlook on life and human experience. The law could lead to conclusions that are unfair to a party, as long as the outcome is part of the reasonable conclusion. This does not justify unfairness; it only shows the fragility of our unbridled faith in having the justice system resolve all of our problems. How can the law resolve the problems Mr. Hichilema is alleging? Particularly the more academic and philosophical ones?

Fifth, legal legitimacy should be taken as a whole, as the whole system. Immediately we begin analyzing the integrity of a judicial system on the basis of one or two court rulings, we lose the true picture of our judicial structure. Judges may have ruled differently on the 14 days issue, but they ruled unanimously on the question of cabinet ministers not to stay in office beyond the life of parliament. Zambia’s Constitutional Court cannot just be judged by the 14-day ruling, but by the entire intercourse of rulings it has released in its life. You cannot blame a court just because it has not lived to your expectations on Mr. Hichilema.

It appears like we have now become a very litigious nation. I now hear that several citizens are now taking Constitutional Court judges to the Judicial Service Commission. What nonsense! We cannot go on like this. This is becoming absolutely ridiculous. We must be more gracious to our judicial system and give the Constitutional Court some time to grow and develop. The idea that each of the parties that is aggrieved should now go the Judicial Service Commission to have judges fired is repugnant to common sense.

Judicial reasoning is not an exact science. It has never been. From the English roots of Zambia’s constitutional jurisprudence to the American constitutional order and back to Zambia’s new Constitutional Court era, judicial reasoning in constitutional matters is chaotic and constantly changing. Respect for the law is never about respect for the objective validity of the law, but it is always the respect for the heritage of the societies that have chosen to be guided by such legal structures.

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Rev. Elias Munshya is a Zambian theologian and lawyer practicing at West End Legal Centre in Calgary, Alberta, Canada. In addition to several degrees in theology, he holds an LLB from England, an LLM from Northwestern University in Chicago and an MBA (law) from Wales.

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Elias Munshya of the Alberta Bar

The Law Association of Zambia and the challenge of policing politico-legal speech

By E. Munshya, LLM, MBA, MDIV

It is common knowledge that the Law Association of Zambia (LAZ) has issued a circular reminding Zambian legal practitioners that they must obtain permission from both LAZ and its Legal Practitioners Committee before they comment on legal subjects in Zambia. I have taken Isaac M. Mwanza’s (of YALI) position that the laws and regulations forbidding legal practitioners from commenting on legal subjects are archaic and need reform. In an earlier article, I highlighted ways the law could be reformed particularly by splitting LAZ’s regulatory function from its fraternal function. As the situation stands now though, it is still law currently that legal practitioners must not comment on legal matters without clearance from LAZ. I have reservations over this law, but as a legal practitioner myself, I must agree with it. The law is what it is, not what we wish it should be.

Ireen Mambilima

Chief Justice Ireen Mambilima

All lawyers in Zambia including politicians such as Hon. Tutwa Ngulube (Patriotic Front legal advisor) and Mr. Lusenga Mulongoti (UPND member and practicing lawyer) need clearance from LAZ before they comment publicly on legal subjects. That is the law. This regulation must be read strictly and it is clear that it is aimed at regulating “legal practitioners” and not all citizens in general. LAZ has no mandate to police Zambians’ debate on any subject. LAZ has no legal mandate to police what citizens debate on social media. The mandate of LAZ is restricted to forbidding legal practitioners. Citizens on social media or on MUVI TV have the liberty to lead and mislead themselves on any question of law, fact or anything in between. Press freedom and freedom of thought and association includes the freedom to read and misread the law, to lead and mislead self, and the liberty to debate and degrade dialogues. LAZ lacks the legal mandate and has no legal competence to regulate general public discourse on legal, political or constitutional matters.

LAZ can no more regulate public attitudes to Article 101, than the Resident Doctors Association of Zambia can regulate public speech on tumors and red blood cells. LAZ can no more regulate the Zambian public’s speech on an electoral petition than the Engineering Institute of Zambia can regulate public attitudes towards the structural integrity of FINDECO House.

Elias Munshya NewFor those citizens, who intend or are already, in the process of becoming legal practitioners in Zambia, it is important that they follow LAZ guidelines now so that it does not create an unnecessary distraction when they apply to practice. In fact, I would encourage all law students in Zambia to become student members of the Law Association of Zambia so that they begin getting used to draconian provisions that restrict freedom of thought and expression for legal practitioners. LAZ, its statutes and its regulations must change, however. And each one of us has the responsibility to suggest those changes. It will not be easy for LAZ members and legal practitioners to change; it must take the collective effort of all citizens.

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E. Munshya of the Alberta Bar

The legal profession by nature is very respectful of tradition and does not change easily. It is nearly impossible to change the legal profession from inside. Once you take the great Barristers’ Oath and wear the gown, you suddenly realise that you are part of the long tradition of legal ancestors such as Justice Coke, Lord Denning, Lord Diplock and all the great men and women of the jurisprudential old. Nevertheless, at great personal sacrifice, some in Zambia must begin dramatizing for change to the profession. In my case, as a legal practitioner licensed in a different commonwealth jurisdiction where we do not have restrictions like my colleagues have in LAZ, it provides me some freedom to freely debate and advocate for changes in Zambia without having to worry about getting into trouble with the Zambian regulator.

My professional ethics in Alberta though still impose upon me the burden to be civil when I debate legal issues beyond the borders of our jurisdiction. So, LAZ is right, legal practitioners it licenses must get permission to make legal and perhaps political commentary. LAZ however, has no mandate to police all citizens who comment on legal subjects. LAZ can’t police students but it would be advisable for Zambian law students and graduates to stop getting under LAZ’s skin. Those that want to get under LAZ’s skin and advocate for some changes, though, will find me ready to meaningfully contribute to a worthy dialogue within limits of my professional obligations as a practitioner, albeit in Alberta.

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Linda Kasonde – LAZ President