Supreme court
Dr Munyonzwe Hamalengwa
International Lawyer Dr. Munyonzwe Hamalengwa says the Judiciary in Zambia is under test as it tables the most important constitutional case in the history of the country.
Dr Hamalengwa who has practised law in Canada, South Africa among other countries says the election petition brought before the Constitutional Court will make history on the case.
He says:
The judiciary was given security of tenure and independence centuries ago mainly for occasions for which Zambia’s new constitutional court has now been called upon by history to adjudicate. Did the ECZ announce the correct result based on correct and verifiable evidence? Was this election free and fair? Did the President get 50+1 or something less? Was there electoral manipulation? Was this election result credible?
A judge who has security of tenure and who cannot be fired for doing his or her job, doesn’t have to curry favour with anybody including his or her relatives, an opposition party or the party in government.
A judge can only be removed from office on demonstrable cause and it is a long process which rarely succeeds in places like Zambia, Canada, US, Australia etc where the procedure for removal is constitutionalized.
This judiciary is proceeding on a firm constitutional facade or base better than any in Zambia’s history. The public is also now better informed about the constitutional indispensability of a strong, free and independent judiciary in a democracy. This judiciary has nothing to fear as it goes about deciding this epochal challenge before us.
It is now a question of the solidity of the evidence. For a court to make a good decision that will stand transparent scrutiny all over the world and the test of time, the judiciary needs indestructible evidence to overturn the election result. The evidence should be there for the judiciary to ensure that its decision is accepted and enhances its credibility and acceptance. The evidence must also be there for the whole world to see so that the judiciary cannot hide under all sorts of equivocations and justifications. The evidence must be unassailably credible and transparent to the whole world for the whole world to gasp if the decision reached does not accord with the tendered evidence.
Does the UPND have that evidence? The evidence must also be marshalled effectively.
The most important evidence resides with the ECZ. Can the ECZ credibly Marshall the evidence upon which their decision was pronounced? Did the ECZ conduct a fair tabulation? Did they listen fairly to the procedural entreaties of the stakeholders during the election and the tabulation? Did the ECZ show reasonable apprehension of bias? Has the ECZ preserved all the necessary evidence about this election?
Zambia’s democratic credentials have been tested. Will this judiciary stand up to live up to its oath of doing justice without fear or favour or intimidation and to make a decision solely based on the evidence? There is a judicial state of emergency in Zambia and this state of affairs requires the summoning of what is extraordinary in all of us.
When a mother who does not know how to swim, sees her child drown, the mother will swim for the first time in her life, to rescue her child. When David saw Goliath come at him, he did the extraordinary, he used a sling to slay the Giant. These are extraordinary times calling for extraordinary measures. Every one of us has been put in extraordinary circumstances and we used the evidence before us to rescue our selves from the perilous circumstances. Zambia shall survive with the judiciary at the centre of it.
Dr. Munyonzwe Hamalengwa teaches law at Zambian Open University and is the author of The Politics of Judicial Diversity and Transformation.