UPND aligned UNZA lecturer OBrien-Kaaba

TWO opposition UPND-aligned University of Zambia law lecturers have expressed concern at the poor judgments coming from the Constitutional Court.

In a write-up titled, ‘Where exactly is the ConCourt taking Zambia: a comment on the Mutembo Nchito judgment’, law lecturers Dr O’Brien Kaaba and Dr Pamela Towela Sambo argue that the court has done more harm to constitutionalism than promoting its values.

UNZA lecturer Pamela Towela Sambo

The lecturers, the former of whom recently graduated from ZIALE while the latter has a career practice, argued that the judgment the court rendered in the Nchito case left much to be desired.

“A judiciary committed to constitutionalism should interpret the Constitution in a manner that promotes the realisation of its underlying values, not to undermine them. Judging by the Mutembo Nchito judgment, it is hard to see how the Constitutional Court’s decision safeguards the integrity of the Constitution and advances the rule of law and constitutionalism,” they argued.

“Perhaps it was for this reason that Supreme Court Judge, Mumba Malila, in a recently published and well-articulated article penned in honour of the late justice [Claver] Musumali, virulently admonished his colleagues in the Zambian judiciary…When will the Zambian judges take up this challenge and heed Justice Malila’s plea?”

Giving background to the history of constitutional courts worldwide, the lecturers argued that the Zambian institution had placed itself as a tool to champion the cause of the executive.

“To borrow Professor Michelo Hansungule’s words, Zambians have been looking for an ‘irritatingly independent’ Constitutional Court. Dare we ask, irritating to who? The answer is to all and sundry that are allergic to constitutionalism and the rule of law,” they stated.

“The problem is that the Zambian Constitutional Court, judged by the depth of its jurisprudence, does not seem to fit into the legacy of other progressive Constitutional Courts such as the South African Constitutional Court. The latest demonstration of this is to be found in the recent decision of the Court relating to the removal of Mutembo Nchito as Director of Public Prosecutions (DPP).”

Dr Kaaba and Dr Sambo, who know the Law Association of Zambia is toothless to instill discipline among the law professionals, wondered if Constitutional Court judges have been researching before compiling judgments.

The duo also expressed concern about the Court’s delay in passing judgment on the matter without even apologising to Nchito.

“Taking the Mutembo Nchito judgment as a microcosm of the Constitutional Court judgments, the decisions of the Court tend to be thinly reasoned, under-researched, lacking in critical reflection, deficient in rigorous legal analysis, demonstrating a mechanical and unreflective reliance on precedents, and above all, contextually irrelevant,” the duo argued. “Before addressing substantive defects of the judgment, we would like to say a few words about the Constitutional Court’s seeming inefficiency. It took four years for the Court to dispose of this straightforward case. The court largely blames the delay on the parties for being ‘locked in interlocutories’. The Court does not explain how and why resolving interlocutory matters took so long.”

The lecturers stated that there was no justification for such a prolonged delay.

“A perusal of the record shows that the case was concluded in September 2019. It therefore took the Court more than a year to render a mere 50-page judgment. The Court offered no apology or explanation for its own delay, which is manifestly a violation of Article 118(2)(b) of the Constitution which requires that ‘justice shall not be delayed’,” they stated. “Obviously, this delay cannot be justified on the basis of the depth of research conducted as the judgment, apart from routine references to case law and statutes, only made reference to two other publications: Black’s Law Dictionary and Garth Thornton’s Legislative Drafting book.”

The duo stated that it did not make sense for the Constitutional Court to delay judgment for one year when it had very few cases in its record.

They noted that courts were creatures of the Constitution and, as such, accountable to the supreme law of the land.

“Considering the importance of the case to the constitutional life of the state, the display of inadequate research in this judgment is by any standard shocking,” they argued. “It also bears noting that the Constitutional Court is a new Court which has no case backlogs and has a very low caseload (as compared, for example, with the Supreme Court which had in excess of 4,000 case backlogs prior to the establishment of the Court of Appeal). Courts are creatures of the Constitution and accountable under the Constitution.”

The lecturers reminded Constitutional Court judges that their power is derived from the people who they have been serving with dishonour.

“Article 118 (1) of the Constitution provides that judicial authority derives from the people and should be exercised in a manner that promotes accountability. Delivering a judgment more than a year after the case closed, without any explanation or apology, is inconsistent with the spirit of accountability dictated by the Constitution,” the lecturers stressed. “In the case of the Constitutional Court, this is not an isolated case, this having been reflected in a number of cases such as the appeals relating to the Lusaka Central and Munali constituency election disputes. An accountable court is sensitive to the inconvenience it may cause to the litigants and keeps those concerned well updated. The inconvenience is also apparent in relation to the development of constitutional precedence, not to mention the ever – learning general citizenry that looks forward to speedy resolution of contentious constitutional matters.”

And the duo wondered why the Constitutional Court had always diverted from questions provided by petitioners and instead formulated its own.

Citing the Nchito and President Lungu’s eligibility cases, Dr Kaaba and Dr Sambo stated that the Court had diverted from issues raised by petitioners.

“Now to the substance of the judgment. A reading of the Mutembo Nchito judgment makes one wonder where the Court is taking the country in terms of constitutional jurisprudence…How was the Court able to determine that the President acted constitutionally in removing the DPP from office without delving into the process leading to his removal?” asked the duo. “The exercise of constitutional power cannot be divorced from the manner by which that power is exercised. Constitutional power is given in order to further and not undermine constitutional values and goals. It follows that there must be a rational connection between the process and the exercise of constitutional power. The two cannot be splintered and dealt with in isolation, as did the Constitutional Court in this matter.”