COMPROMISED BY POLITICS? A RESPONSE TO ‘THE JUDICIARY OF ZAMBIA’
THERE is urgent need for the judiciary to earn its claims of independence and impartiality through demonstratable actions and positive feedback from the public, the consumers of its services. As the adage goes, justice must not only be done but be seen to be done. Merely insisting that the judiciary is impartial and committed to the rule of law is as hollow as President Hichilema’s claims that he has delivered even when people are starving and dying from preventable diseases like cholera. Impartiality is not determined by a single act but the conduct of the judiciary from the moment a matter is filed in court. In other words, when one goes to court, they set the judicial process in motion. The manner of allocating a case is part of the process. Invariably, when the process is tainted, it affects the outcome of the case. If the judge-in-charge cooks the allocation, they have, in effect, cooked the outcome. The alarm I sounded was not about how the case will be decided or the qualifications or competence of the judges to which the cases have been assigned, but the way the cases are being allocated. None of what the judiciary has said in their response indicates that there is impartiality in the allocation of cases. They do not even disclose how cases are allocated. The impartiality of the judiciary is reflected by the collective conduct of the judicial officers, not through declarative statements.
The Judiciary of Zambia: “We encourage citizens to engage in constructive dialogue and discourse, and to express their concerns through appropriate channels, in order to maintain and enhance the strength and credibility of the justice system.”
Comment: Here, we see the breath-taking hypocrisy of the judiciary. How can the judges call citizens to a meaningful engagement when they have failed to demonstrate the same spirit in the very statement in which they issued the call? My observations about the Lozi judges, three of whom were appointed by Hichilema, in the specific cases I cited are factually correct and relevant: the judiciary needs to explain how the cases were allocated to them. Constructive dialogue requires content-based discussion premised on facts and clear identification of the issues at hand. It is impossible to foster understanding and achieve consensus if one party to the debate only reads the title of a submitted piece of evidence and rushes to deliver verdict about the other party. The judiciary’s response, which did not make any reference whatsoever to a single statute or legal document, is not a refutation of the charge of cherry picking of judges, based on the questions I posed, but is instead a threatening stonewall denial. Rather than allaying fears concerning the cherry picking of judges, such a response must instead aggravate suspicions and fears that something funny is going on. It certainly does not give us any confidence that the judiciary can provide any bastion against the slide into dictatorship. Instead of a judicial response, I got a dictatorial answer. The statement is not referring to what was raised. If it was taken to a court, it would be thrown out as irrelevant to the matter in contest.
Also revealed in this paragraph is the judiciary’s attitude towards free speech. The idea that criticism of the judiciary should be conveyed through “appropriate channels” suggests that the exercise of free speech is subject to the use of particular outlets. What are these appropriate channels? Who decides them? Like the whole press release, this paragraph lacks grounding in any logical and known way of presenting arguments, especially those coming from an institution whose officers should ordinarily be imbued with a minimum level of rationality. Article 20 (1) of Zambia’s constitution, on the protection of freedom of expression, provides that “Except with his own consent, no person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to impart and communicate ideas and information without interference, whether the communication be to the public generally or to any person or class of persons, and freedom from interference with his correspondence.”
Any judiciary that is genuinely dedicated to upholding the constitution and fundamental human rights must recognise that long gone are the days when the undemocratic leader could block any individual from expressing themselves and when newspaper editors exercised greater control over ‘news’ content. In today’s world, the judiciary needs to protect my right to express myself on TikTok, X, Facebook, YouTube, and any other platforms through which we humans communicate. The right to free speech is not limited to undefined ‘appropriate channels.’ I conducted my research and have the right to demand answers, using any platform, arising from the facts that I discovered. No one has the right to decide where and how I should express myself. No one. Not even the judiciary. Rather than questioning the means through which free speech is exercised, the judiciary should only wait to adjudicate when institutions and individuals are injured by the exercise of this freedom by anyone.
The Judiciary of Zambia: “We remain resolute in our dedication to upholding the constitution and ensuring that the rights of every individual are protected.”
Comment: This is sloganeering most associated with trade unions. The job of the judiciary is not to deliver propaganda of this kind; it is to dispense justice. Upholding the constitution or the rights of individuals is an everyday thing that should be proved in practice, not through slogans. Such is the hypocrisy of the judiciary that in this paragraph, the institution is proclaiming its impartiality and that it exists to protect the rights of every individual, while in the next it is violating my right to be heard by effectively presenting me as among those who issue “careless and baseless statements” that “undermine the judiciary...jeopardize the integrity of the legal system and have a direct effect on investor confidence.”
The Judiciary of Zambia: “It is crucial to remind the public that careless and baseless statements undermining the Judiciary not only jeopardize the integrity of the legal system but also have a direct effect on investor confidence.
Comment: It is this concluding paragraph that is most outlandish for two main reasons.
First, how can a person who is seeking to restore the integrity of the legal system be accused of ‘undermining the Judiciary’? The claim that criticism of judicial actions will ‘have a direct effect on investor confidence’ implies that any evidence of lack of integrity in the judicial system should be concealed from investors lest they desist from investing in the country. As a critic, I am not in the least concerned with protecting investors from any knowledge of corruption, but rather with protecting Zambians from corruption in government which is all to the detriment of the welfare of the people.
Second, since they have not answered how those Lozi-speaking judges and Hichilema appointees were allocated the cases involving Sampa v the PF, how did the judiciary reach the verdict that my questions were baseless and careless? Which trial found my submissions to be without foundation? Who sat to hear and assess the quality of evidence that was provided before deciding the matter in favour of the judiciary? Why is the judiciary making conclusions without due process? I am genuinely aggrieved that the “The Judiciary of Zambia” is tarnishing my reputation and insulting my integrity by questioning my capacity to decide what is careless and baseless. Now, since the “The Judiciary of Zambia” has already pronounced itself on this matter, where do I go to get justice?
There are several psychological elements of the judiciary’s unevidenced characterisation of my questions as ‘baseless and careless statements’. The first is to delegitimise me as a practising public intellectual. This is what the mob of Hichilema’s supporters in civil society and academia has been attempting to do since I turned my shield of criticism to the governance pitfalls of his administration. For this pack, debating by way of attacking the critic’s thoughts and demonstrating the weaknesses inherent in them is the least of its objectives. Its members are far more interested in discrediting me and rubbishing much of what I say so that no one, going forward, pays attention to my substantive criticism of Hichilema’s decisions, leadership, and administration. The style this group uses is to deliberately distort or misread what I say, to attack my person rather than my thoughts, or to boldly accuse me of making unsubstantiated statements without demonstrating how. Such is its enthusiastic support for the regime that several members of this group are even ruining their professional reputation.
By unfairly characterising my views in the manner it did, the judiciary has, wittingly or unwittingly, joined this mob in working to undermine my credibility as a source of political analysis on Zambian affairs. Shortly after the release of the press statement, several members of this mob were indiscriminately circulating it, some with some perverted additions of their own. The second element is to encourage the police to treat me as a person who is purposely ‘jeopardizing the integrity of the legal system’ and, by extension, an enemy of the State. This position by the judiciary puts the critic in the position of being open to a charge of sedition or economic sabotage, and therefore amounts to an implicit judicial threat against critics to keep their mouths shut or face the consequences. Since the judiciary has already pronounced me guilty of ‘careless and baseless statements’, the police have been given free rein to arrest me at the earliest available opportunity. The judiciary’s statement also puts me in harm’s way including by way of political violence especially in a society where many have been encouraged to believe that criticism of State institutions or the government is not only wrong but should also attract punishment.
Let me end by reiterating that the matter at hand relates to how all the Sampa v PF cases ended up before a quartet of Lozi judges. Can the judiciary demonstrate the impartiality and commitment to the rule of law that led them to allocate the cases to only justices from one ethnic group? All I am asking is for the judiciary to provide the evidence showing that the method that was used to allocate the PF v Sampa cases is fair and insulated from political or external considerations. We have an executive that is destroying institutions of the State and our multiparty system to enable Hichilema, who has vested interests in the outcome of these cases, to entrench himself in power amidst increasing despondency from citizens arising from the cost-ofliving crisis. At a political level, there is legitimate suspicion that the executive will do the same to the judiciary, which does not exist outside this wider context. All sane and patriotic Zambians must therefore be extremely alert to how the judiciary now behaves in politically sensitive matters before it, especially those that have a huge bearing on the fate of our democracy. The first responsibility of the judiciary is to produce the objective criteria by which they chose the four Lozi-speaking judges. Can they please do so?