By Elias Munshya, BA, MA, LLB, MDIV., MBA, LLM
We doubt whether this Chifire contempt case will help restore faith or respect for the Zambian Supreme Court, the respect which it deserves and desperately needs. This Chifire decision, particularly the sentencing, will not help matters at all. The Court will not garner more respect than it previously had before the sentencing. The problems with the Zambian judiciary, particularly regarding respect for its institutions and the courts deserve a frank discourse about the way forward.
Mr. Chifire’s comments probably crossed the line. The judges were justified in their anger. However, I am concerned that the process the judges used, and the sentence they meted on Mr. Chifire undermines the very respect they are demanding. The six-year sentence is disproportionately stiff thereby making a mockery of the very thing the judges are trying to promote: respect. The judges rejected all the guidance from legislation, from English law, and from the common law world regarding sentencing for contempt, to come up with this six-year excessive verdict. The problem with stiff sentences is that they undermine reform, and in the common law world that has become a huge global village, such stiff sentences send the wrong message to the world. When you punish wrongdoers excessively, you undermine the very message you are trying to promote. If Mr. Chifire has fled Zambia, it is unlikely that any court in the common law world will extradite him to Zambia to face a 6-year custodial sentence for the crime of contempt of court.
The Chifire contempt case involved one more important issue: the role of lawyers. The judges disapproved of the conduct of Chifire’s lawyers. But these lawyers were just doing their jobs in representing their client. This case was a tough one because there was no impartial adjudicator, as the judges were themselves complainants and adjudicators. It was incumbent upon these lawyers to vigorously defend their client and poke holes into the procedure the Supreme Court judges were using. The procedure the judges used was novel and had no clear precedence anywhere in the common law world. The lawyers were justified in seeking clarity.
We understand that the Law Association of Zambia (LAZ) has issued a statement supporting the 6-year conviction of Mr. Chifire. LAZ is obviously as anxious as we are that the Zambian courts are respected. We cannot fault them in so desiring. However, just as they are swiftly fighting for the respect of the judiciary, we hope that LAZ will be equally attending to the crisis at their doorstep – the proliferation of hundreds of lawyers who remain needlessly unemployed or under-employed in a country that still needs lawyers. LAZ can resolve lawyer unemployment very easily – by simply asking parliament to change one or two rules regarding lawyer regulation. Unemployed lawyers are a problem anywhere in the world. If you want a well-respected judiciary, perhaps start with a working cadre of new lawyers. Find jobs for lawyers. If you cannot find jobs for them, amend the Law Association of Zambia Act and the Legal Practitioners Act so that lawyers can employ themselves. They are a creative bunch of people and they will do just fine.
This then brings us back to an important issue: what should be done about the judiciary? Obviously, the judiciary is dealing with unprecedented attacks. However, in Milenge we say, ubufumu bucindika abene. It appears that the judiciary itself is not doing enough to respect its own courts and its judges. Just as we are talking about the Chifire contempt, there is another contempt in which a judge has cited Lusaka lawyer John Sangwa SC for contempt using the same inherent power, claimed by the Supreme Court. It appears that the State Counsel has refused to attend to those summonses and the legal elders may have intervened to avoid a stalemate. Further, a while ago, the management of the judiciary suspended a Livingstone magistrate for a decision he had made in court that went against the state. The state did not appeal his decision, rather, it reported that magistrate to judiciary management who then decided to suspend the magistrate. The argument the judiciary made in suspending Magistrate Mwelwa remains, in our opinion, unconstitutional and undermines judicial independence. The judiciary as the branch of the state cannot be seen to be interfering in the rulings of duly constituted courts, including magistrates. It is ridiculous to insist on respect for the Supreme Court and yet let the Chief Justice interfere in the rulings of courts below. We think that by suspending a magistrate for a ruling he made in court, the judiciary interfered unconstitutionally in the function of a court, thereby betraying the very respect the judges seem to be demanding from the public.
To be clear, the judiciary and judges deserve respect. Unfounded criticism and insults of the courts and judges must be avoided and reasonably curtailed. Alleging specific corruption for judges based on fake news must not be condoned. Consequently, if the judges want to restore respect for the judiciary, they will find that Zambians are willing to join them in the fight for a corruption free judiciary. A new judiciary is possible. Perhaps, Chief Justice Mambilima and Deputy Chief Justice Mwanamwambwa could consider resigning to pave a way for a new beginning for the beleaguered third branch of the Zambian government.
Suggested Citation: Munshya E. (2018). The Supreme Court of Zambia’s Chifire Contempt Ruling: Our View. Elias Munshya Blog (www.eliasmunshya.org) (November 30, 2018)