Planned changes to Zambia’s constitution ‘infringe judicial independence’

8 August 2019 · Carmel Rickard

Zambia’s ruling Patriotic Front government is in the process of piloting wide-ranging changes to the country’s constitution into law. The proposed amendments have drawn considerable criticism from political opponents of the PF on grounds of poor drafting, infringement of individual and community rights and of threatening judicial independence, among others. They are also under fire from local and international legal and human rights organisations.

Read the draft Constitutional Amendment Bill

Proposed changes to Zambia’s constitution were released for public comment two months ago. Since then, the amendments have been widely debated, with considerable criticism about the new provisions that, for example, appear to remove the previous sense of religious tolerance, that threaten judicial independence and that give the president the right to delineate new provinces or merge old ones. This last is a particularly touchy subject as it is feared that the semi-autonomy of certain groups will be affected.

One of the first things that a reader of the ‘objects’ of the proposed amendment will notice, is that there is no mention of any intention to change any aspect of the judiciary or the courts. In fact, neither is mentioned at all. Yet the text of the proposed changes discloses significant alterations to the judiciary.

In a major joint statement outlining their reaction to these changes, seven international organisations focused on the proper functioning of legal systems around the world, have expressed their ‘deep concern’. They say that, if adopted, the constitutional amendment could have a serious impact on judicial impartiality. The organisations are particularly concerned about the proposed changes to the way disciplinary proceedings against judges are handled and about changes to the composition of Zambia’s Supreme and Constitutional Courts.

The seven bodies are the Commonwealth Lawyers Association, the Commonwealth Magistrates’ and Judges’ Association, the Human Rights Institute of the International Bar Association, the International Commission of Jurists, Judges for Judges, Lawyers’ Rights Watch Canada and the Southern Africa Litigation Centre.

They are concerned that while the ultimate decision on whether to remove a judge used to lie with the Judicial Complaints Commission, that question would in future be made by a tribunal appointed by the President. The wording of the amendment is broad enough to allow that the tribunal could consist of people all of whom are members of the executive or legislature.

The seven organisations say this would not comply with international standards. To do so, the tribunal would have to be primarily made up of judges, and none of its members – regardless of background – would come from the legislative or executive branches of government. In addition, decisions in such matters would have to be subject to an independent review.

Provisions relating to the Constitutional Court while vague are far-reaching. For example, as the constitution now stands, there is a requirement that there should be at least 11 judges serving on the two highest courts. That is gone. In its place is the requirement that there should be ‘an uneven number of judges, as prescribed’.

A third issue that troubles the organisations is that the amendment includes a significant change to the grounds on which a judge might be removed from office. At present four grounds for removal are listed in the constitution. One of these is ‘a mental or physical disability that makes the judge incapable of performing judicial functions’. This would be replaced as grounds for removal. Instead, a judge could be dismissed from office on the grounds of being ‘legally disqualified from performing judicial functions’.

Again, because of the broad and vague wording, the organisations are concerned that the way would be open for removal of judges on politically motivated grounds.

Organisations representing civil society in Zambia have also spoken out strongly against the amendment. They have formed a new consortium that has condemned the planned changes to the constitution, and giving their backing to the position taken by the Law Association of Zambia (LAZ).

Among the issues of concern to the LAZ and the consortium of other organisations, is that the failure to specify the number of judges to serve on the country’s superior courts would mean the party in power could pack the courts with judges who are sympathetic to the ruling party, thus undermining judicial independence.

President of the LAZ, Eddie Mwita, has issued a statement in which he outlines the potential threats to the judiciary. But he also expresses concern that while most Zambians are desperate for government to make savings so as to improve service delivery to the poor, the amendment would see considerable new spending on deputy ministers. Under the planned changes, these positions, removed in a cost-cutting measure by a previous administration, would now be reintroduced.

Linda Kasonde, executive director of Chapter One Foundation, one of the growing number of organisations in the consortium opposed to the amendment, is concerned that removing the limit on constituencies, as proposed in the amendment, could have dire consequences.

Kasonde, formerly president of the Law Association of Zambia and newly-elected vice president for Africa of the Commonwealth Lawyers’ Association, said that scrapping the limits on constituencies would allow the ruling party to ‘increase the number of MPs at will’ and thus ensure it continues to have a majority in parliament to pass any law.

There is also concern from three significant church 'mother bodies' that refused to participate in the government's discussion about the way forward. They said that what had originally been planning of a national dialogue over reconciliation had become something else. It was now focused on changes to the constitution arising from a meeting of political parties that had taken political resolutions.

Carmel Rickard

About the author

Recent articles by Carmel Rickard

‘No justification for the unjustifiable’: Lesotho’s ombud slams grand-scale torture, assault in Maseru prison

22 March 2024
Carmel Rickard

Lesotho’s national ombud, Tlotliso Angelina Polaki, has issued a scathing report on massive-scale torture and assaults that took place in Maseru’s central correctional institution during December 2023, leaving about 95% of the inmates of the prison injured, one dead and one who is now wheelchair-bound and will never walk again.

Major court decision on image rights benefits Ugandan soccer players

21 March 2024
Carmel Rickard

Members of Uganda’s national soccer team from the period around 2007/8 have just been awarded a payout against MTN Uganda by the commercial court. The telecom giant had a year-long contract with Proline, the players’ originating development soccer club, allowing it to use the players’ images for advertising. But MTN had continued to use their images even after that contract expired on the basis that it had a sponsorship agreement with Fufa, soccer’s governing body in Uganda. The players then challenged MTN in court, through Proline, and have now won a significant damages award. But the judgment exposed some serious flaws in the way that Fufa has approached the question of using the image rights of its senior players, and the court commented that this is a ‘case study’ for why Fufa needs to sort out its contractual arrangements with senior players.

Executive interference in Ugandan court decisions continues – this time by the justice minister

21 March 2024
Carmel Rickard

Uganda’s minister of justice, Norbert Mao, has taken a leaf straight from the book of the country’s president, Yoweri Museveni. This week, the minister wrote to the principal judge of the Ugandan high court, asking that the judge directly intervene in a matter that has been brought to his attention by an MP on behalf of a constituent. Mao asked for the ‘immediate administrative intervention’ in the matter by the principal judge. Earlier this year, Museveni wrote a similar letter to the chief justice of Uganda, also requesting intervention in a matter, and the CJ later indicated that this was not the first time it had happened.

Is rape by family members treated too lightly by the law?

19 March 2024
Carmel Rickard

The high court has sent the case of a Malawian teenager, charged with raping his 89-year-old grandmother, back to the magistrate’s court for a possible re-trial because the court had wrongly prosecuted a case of rape instead of incest. If convicted in a re-trial, however, Malawi’s incest law could see the accused sentenced to a mere five years. Malawi’s penal code provides for a significant difference between the sentence to be imposed when a man rapes a close family member, and in a case where the two are not related. When they are unrelated, the code provides that a rape offender ‘shall be liable to be punished with death or with imprisonment for life’ (However, Malawi has had what amounts to a moratorium on carrying out the death penalty since 1992.) By contrast, ‘incest by males’, is categorised in the code as a ‘felony’, and anyone convicted ‘shall be liable for imprisonment for five years’. There is an exception: if it is proved ‘that the female person is under the age of 16, the offender shall be liable to imprisonment for life’.

Prominent SA advocates lose battle over conviction in Namibian courts for working without a permit, misleading immigration officials

6 March 2024
Carmel Rickard

Two prominent South African advocates have just lost their last hope of squashing their convictions in the Namibian courts. Johannesburg advocates, Mike Hellens SC and Dawie Joubert SC, had been found guilty on two counts, first, working as legal practitioners without an employment permit, and second, giving false or misleading information to immigration officers when they entered the country in 2019. Though they had gone to Namibia to appear in court in a bail application, they told the immigration officials they were there for a ‘visit’ and for a ‘meeting’. Both appealed against their conviction but they had also asked for a judicial review of the decision. In the high court they lost their appeal but won on the review. The outcome in both matters were taken to the apex supreme court for a final word. In December 2023, they lost their appeal at the supreme court. What would that same court say when the state appealed against the review finding? The supreme court has now given its answer: it found the review, that had favoured Hellens and Joubert, was wrongly decided, and set it aside, awarding costs against the two advocates in both the high court and the supreme court.