COMPROMISED BY POLITICS? A RESPONSE TO ‘THE JUDICIARY OF ZAMBIA’
ALTERNATIVELY, can the State body refer me to or simply publish the rules governing case allocation? If there is no objective criterion for allocating cases, then the judiciary should simply state so and immediately devise a fair system that would guarantee impartiality.
I am not interested in cases involving Lungu v the Attorney General, Brian Mundubile v the Speaker, the quarrels between Nakacinda and the DPP, or any other PF member who may have a case against anybody else. I am interested in the four political cases involving Sampa v the PF because this is the matter that Hichilema is using to undermine the principle of separation of powers in Zambia. The conduct of Hichilema, the Speaker of the National Assembly, the acting Register of Societies, and the Inspector General of police in the PF’s factional battles, and the fact that three of the four judges who were allocated these cases are Hichilema appointees and that all four come from a region that is perceived to be favoured in public appointments constitute enough reason for me to be suspicious and demand answers.
The Judiciary of Zambia: “Further, all matters filed in the Constitutional Court are allocated to a single Judge to handle all preliminary issues and to issue orders for directions. Once the matter is ready for hearing, it is cause-listed to be heard by a panel. All matters filed during a vacation, such as the just ended Christmas vacation are handled by the designated vacation Judge, as was the case with Justice Mulife. It is therefore impossible that any matter can be determined by a single Judge, as this is a collegial court.”
Comment: The issue at hand relates to allocation of cases, not their determination. Here, the Judiciary is conceding that before cases are cause-listed to be heard by a panel, they are allocated to a single judge. This is where my interest lies: What system is in place to guide the case allocations to avoid the potential of bias? To illustrate this point. The one who allocates cases filed in the Constitutional Court is the court’s Deputy President. This position is currently occupied by Mweetwa Shilimi, a Tonga speaker who is both a Hichilema appointee and someone who was simultaneously promoted to the role on his appointment over and above experienced justices who have served on the court longer. As well as determining the allocation of cases, Shilimi is also the one responsible for determining the composition of the panel that hears cases. It is reasonable to assume that President Hichilema strategically placed Shilimi in this position as a way of ‘rigging’ case outcomes from the beginning. Allocation of cases is thus very important, demonstrating the need to publicise the system allocation.
More worrying is that Shilimi is also a close personal friend of the President, a relationship that even attracted the concern of the Parliamentary Select Committee that was appointed to scrutinise his appointment, as revealed in its final report: “With regard to his relationship with the Republican President, the nominee informed the Committee that he personally knew the President as they had attended university and national service together. He, however, explained that his relationship with the President would be immaterial to his decisions as he would not like to compromise his professionalism after many years of practice.” This is easier said than done, especially in matters where his friend in State House may have political interest. What is needed are rules that would prevent judges in Shilimi’s position from taking part in allocating cases in which Hichilema has an interest.
Another example that reinforces the need for publication of the rules that govern case allocations involves High Court justices Situmbeko Chocho and Sililo Siloka, both of whom were appointed by Hichilema and are handling PF v Sampa cases. Social media is awash with pictures of Chocho around the 2021 election in which she is seen expressing support for Hichilema. Anyone can be forgiven for thinking that Chocho may not be impartial in political matters where Hichilema has demonstrated clear interest by way of showing preference to working with members of one PF faction over the other. The same can be said of Siloka, whose CV shows that he once worked for Lukona Chambers, the law firm belonging to Nellie Mutti, the Speaker of the National Assembly who not only has ties to the ruling party but has also, like Hichilema, shown bias towards the Sampa faction of the PF.
If the provisions of the Judicial Code of Conduct were strictly enforced, the High Court judge-in-charge of the general list should not have allocated the PF v Sampa cases to Chocho or Siloka, since their impartiality might reasonably be questioned. Sections 6 (2a) of the Code provides that “A judicial officer shall not adjudicate or take part in any consideration or discussion of any proceedings in which the officer’s impartiality might reasonably be questioned on the grounds that the officer has a personal bias or prejudice concerning a party or a party’s legal practitioner or personal knowledge of the facts concerning the proceedings”. And since the issue of bias is one of perception, can a reasonable person, given these outlined facts, conclude that the cases before the duo will be heard and decided fairly? The answer is no. If Chocho or Siloka finds in Sampa’s favour, they may be perceived as having decided the matter in the interest of a third party they once supported or worked for. If either of them found in the PF’s favour, they may be perceived as having decided the matter in the interest of the main opposition party as a way of proving that they are not influenced by personal, political or any other interest outside that provided by law.
Of course, both Chocho and Siloka could have also recused themselves from adjudicating on the political cases in the interest of safeguarding the integrity and impartiality of the judiciary. The fact that they have not done so demonstrates their little regard for the Code or that they have greater incentive to violate it. All this emphasises the urgent need for publication of the rules governing case allocation so that we may learn how the cases were allocated in such a way that they all ended up before the Lozi-speaking judges. The decision by the judiciary to focus on case determination when all I did was to raise questions on how cases are allocated amounts to creating a strawman to divert attention from the central issue: how did the four specific cases involving Sampa v the PF all end up before judges from one region and predominantly Hichilema’s appointees – regardless of which court they were filed in? If I was to pronounce myself on any aspect to do with the determination of the cases, it would merely be to appeal to the presiding judges to attach a degree of urgency to these matters. This is because any undue delays in determining the PF v Sampa cases will keep the main opposition party in a state of paralysis, a situation that only serves to benefit Hichilema and the ruling party. Thanks to the executive’s manipulation of the Registrar of Societies, Sampa’s faction now enjoys formal recognition but holds no grip on the PF’s base and most of its MPs. The opposing faction enjoys the support of both constituencies but has no formal papers to back its claims of party ownership.