The Supreme Court of Zambia and its survival of the near capture: the episode of contempt of court

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The Supreme Court of Zambia and its survival of the near capture: the episode of contempt of court

By Prof Munyonzwe Hamalengwa

The Supreme Court of Zambia celebrated its 50 years of existence in 2023.

Its history of survival through various challenges is yet to be written. As we celebrate 60 years of Zambia’s independence, many chapters of the survival of the Supreme Court in particular, the Constitutional Court also in particular and the judiciary in general, can be written. This article discusses one episode in 2019 when evidence, in my opinion, signalled or emerged that the Supreme Court of Zambia was tantalisingly close to being captured by the government of the day. The circumstantial evidence of this was the similarity in the language used by both the judiciary and political functionaries. They both used non-justice language of similar check-marks.

Let justice be done though the heavens may fall. Fiat justitia ruat caelum. This is a time-honoured maxim that the judiciary in dispensing justice should only be guided by the notions of justice as a self-contained vehicle and nothing more. Judges may not import “non-Justice” or extraneous considerations to inform them in their decisional trajectories. Judges should not fear any fall-out from their decisions as long as they are based on principles of justice.

A long time ago in 1740, Lord Mansfield, one of the greatest English Judges of all time, expressed “fiat justitia ruat caelum” this way: “I will not do that which my conscience tells me is wrong, upon this occasion; to gain the huzzas of thousands, or the daily praise of all the papers which come from the press. I will not avoid doing that which I think is right, though it should draw on me the whole artillery of libels; all that falsehood and malice can invent, or credulity of a deluded populace can swallow… Once for all, let it be understood that no endeavours of this kind will influence any man who at present sits here”.

This statement represents the hallmark of judicial independence and autonomy. It is a message for all judicial ages including ours. It is my considered view and opinion that the Supreme Court of Zambia violated the notion of “fiat justitia ruat caelum” on March 15th, 2019 by importing extraneous sentiments in its reasons for sentencing Bishop John Mambo for contempt of court. The court was quoted by the media as justifying in part the need to punish people who engaged in unwarranted criticism of the judiciary because unwarranted criticism of the judiciary as corrupt or whatever, would scare away foreign investors to the detriment of Zambia’s economy and at the sufferance of the Zambians. I have no doubt that many other justifications were given for the need to punish those who engage in unwarranted criticism of the judiciary but the media only picked centrally this notion of scaring away foreign investors as justifying judicial stance on the conundrum of contempt of court.

Since everybody knows that Zambians are not a reading culture, the majority of Zambians will only remain with what they had read in the headlines and what had been reported on ZNBC and other government owned or controlled public and private media. The equation will remain for the most part: unwarranted criticism of the judiciary equaled deprivation of foreign investment and therefore economic suffering of the people. Those who engaged in unwarranted criticism of the judiciary would then be targets of hate and ridicule because they were dangerous to the country, they were enemies of the people. This was because the Supreme Court of Zambia had so directed and reasoned, so a lot of people may have thought so from the summary of the decision by the media. Maybe less than one per cent of Zambians ever read the entire actual decision which was complex and legally grounded. But justifying in part the revulsion against unwarranted criticism of the judiciary on the basis that this would scare away foreign investment had nothing to do with the fulcrum and principles of justice upon which such momentous decisions must be anchored. This was a non-justice issue. Contempt of court is a self-contained vehicle and must be justified within its parameters.

It is my submission and opinion that such importation of extraneous non-justice matters by the Supreme Court of Zambia was and is dangerous to the rule of law and to the autonomy and independence of the judiciary in Zambia. This game was playing to the political gallery and to the “daily praise of all the papers which come from the press” paraphrasing Mansfield.

In the past, the then Economic Association of Zambia president Dr Lubinda Haabazoka, press aide to the President Amos Chanda and a few others had expressed the same exact views pertaining to the alleged effects on foreign investment flowing from unwarranted criticism on social media and by the then opposition to the government on alleged corruption and economic mismanagement. The Supreme Court of Zambia as reported by the media in part was parroting the exact same government sentiment, yet the Government of Zambia was not part of that litigation.

Justice P.D. Anin is quoted in part by then chief justice Ernest Sakala in his LLM Thesis entitled, “Autonomy and Independence of the Judiciary in Zambia: Realities and Challenges”(UNZA, 1999, pp. 283-4) as stating the following: “it is not generally true that in some of our countries that the judiciary are de facto independent of the Executive. On the contrary, the judiciary is regularly dictated to and badgered into following the dictates, whims and caprices of the Government or ruling single party.” The mirroring of government sentiments on foreign investments and the impact of alleged unwarranted criticism thereon, by judicial sentiments almost word for word could induce in a reasonable person the perception that there is cross-pollination and fertilisation between government and judicial agendas. Can you find a more perfect example than this one? Peruse the media on what the government had been saying on this topic at that time in 2018-2019, before and after and what the judiciary had said in the instant case!

After all, as every judge knows, perception can have a life of its own, independent of reality. “Justice must not only be done, it must also be seen to be done”. There are two realities in this sentence. People would lose confidence in the administration of justice and the judiciary if they perceive rightly or wrongly that the judiciary was imbibing and being fed from the well of the government. It just takes perception no matter how furthest it is from the truth. The perception can injure the reputation of the judiciary. People at the time had the widespread perception that the Zambian judiciary was not independent and autonomous, a perception that continues. When the judiciary parroted government sentiments like in the instant case, the judiciary self-supplied the self-evident perceived evidence.

That was, however, not all there was to this problem. Because the relationship between foreign investment and the effect on it by unwarranted criticism is not embedded in the principles of justice, there could never be any evidence to support the notion that unwarranted criticism of the judiciary affected or affects foreign investment. Where was and is the evidence? Where were and are the direct causal linkages in form of statistics?

On the contrary, foreign direct investments could be attracted to regimes drowning in corruption and lawlessness, where government officials and the judiciary could easily be bribed to issue permits and dispense justice based on the highest bidder in terms of settling litigation. There was and is more direct foreign investment in corrupt and lawless DRC than in Zambia. The Kenyan economy was booming in the 1980s and up to the early 2000s during the most corrupt judicial reign in Kenya’s history. There was a lot written about corruption in the Kenyan judiciary but investments flowed in Kenya at a dizzying rate. The lawless judiciary under apartheid never scared investments. Examples are legion rather than the other way round.

Withdrawal of donor monies in Zambia was not based on unwarranted criticism of the judiciary. It was based on outright evidence of government mis-use of the money. And donor money is different from direct foreign investment. Donor money can also still flow even in the face of unwarranted judicial criticism. The judiciary must be very careful in its use of judicial language. The judiciary must stay out of non-justice issues in their decisions. They must stick to the proven evidence before them. Political statements do not belong in the calculus of justice. The judiciary should not say anything that they cannot support. The judiciary must not import the language of politicians in their decisions lest they “draw ..the whole artillery of libels, all that falsehood and malice can invent, or the credulity of a deluded populace can swallow”, to paraphrase Lord Mansfied again.

To make matters worse, at his retirement celebration on March 18, 2019, Supreme Court of Zambia justice Marvin Mwanamwambwa reiterated the same sentiments as reported by the media as those reported in the Mambo sentencing of March 15, 2019. I am sure justice Mwanamwambwa said a lot more but the media reported that he emphasised that unwarranted criticism of the judiciary is anathema to foreign investment and Zambia’s economy or words to that effect. Criticism of the judiciary, warranted or unwarranted is a justice issue but foreign investment is not. And there is no evidence that judicial criticism, warranted or unwarranted affected or affects foreign investment in Zambia. Can anyone seriously believe that the Chinese are moved by notions of criticism on corruption basis of the Zambian judiciary or of any massive human rights abuses in any country they invest in? Would Trump care about judicial or political corruption in North Korea, Brazil, Venezuela or other countries?

The word “unwarranted” is also not without its problems. Who decides what is warranted or unwarranted? The issuer or recipient of the criticism? If it is the recipient, it is a subjective evaluation because anything he or she doesn’t like would be unwarranted. Retired justice at the time the acting chief justice Madam Lombe Chibesakunda stated in 2014 that there were elements of corruption in the Zambian judiciary. Was she issuing an unwarranted criticism? Did she have evidence in hand? Was and is the accusation of judicial corruption totally devoid of any air of reality? So, it is possible that what may be perceived as “unwarranted” could not be totally that. It may be warranted but maybe improperly deployed in certain instances where it does not fit but may actually fit if the totality of the canvass is taken into account.

In the case at bar and in all future cases, the Supreme Court of Zambia must stick to the principles of justice and only to the principles of justice. Let justice be done though the heavens may fall. This analysis applies to the Constitutional Court in particular and to the entire judicial hierarchies in general, now and in future and under all regimes now and in future.

Prof Munyonzwe Hamalengwa
The author teaches Criminal Law, Law of Evidence and Research and Writing Methodologies in Law. Email: munyonzwe.hamalengwa@zaou.ac.zm