University of Zambia lecturer Dr Sishuwa Sishuwa has called for the removal of all Constitutional Court judges for gross misconduct and incompetence.
Commenting on constitutional lawyer John Sangwa’s observation that President Edgar Lungu dribbled Zambians when he appointed unqualified individuals as Constitutional Court judges, Dr Sishuwa agreed.
He said only individuals who meet the constitutional requirements to serve as a judge on the ConCourt: namely, specialised training or experience in human rights or constitutional law and 15 years’ experience as a legal practitioner, should have been chosen to serve on the court.
“The Constitutional Court has the final say on all matters relating to the interpretation of the Constitution including the election of the President, so those serving on it should be qualified, competent and impartial individuals with an intimate knowledge and understanding of the Constitution. The fact is that if a sitting president is able to both rig an election and control the Constitutional Court, it is hard to see how he or she can ever be voted out of office. In appointing unqualified individuals to the court, Lungu may have reasoned that it represented the best way of preparing for any possible legal challenge to his election and the constitutional battles over his eligibility or qualification to stand again.”
Dr Sishuwa argued that the ConCourt judges misconducted themselves during President Lungu’s eligibility case by abandoning the questions that were specifically asked by the applicants.
“Aside the question of their qualification, the judges have shown on more than one occasion that they are an incompetent bunch. One was in relation to the amateurish way in which they handled the election petition in 2016. The latest is in relation to how they handled Chishimba Kambwili’s legal challenge against the decision of the Speaker of the National Assembly to declare his Roan constituency seat vacant. In this case, both parties are claiming victory, on account of the court’s failure to give an unambiguous judgement. Yet another example of the incompetence of the Constitutional Court relates to how they handled the matter of whether President Lungu is eligible to stand for another term of office at the next election”, he said.
Dr Sishuwa said instead of answering the two questions that were asked by the applicants, the Court “threw away both questions and unilaterally invented a brand new question”.
“To avoid misinterpreting what the Court said, it is worth quoting their remarks at length as captured on page 51 of its 7 December 2018 judgement:
‘We note that although the Applicants argued in their submissions that this matter has been brought pursuant to Article 128(1)(a), which gives this Court jurisdiction to interpret constitutional provisions, the manner the above question has been couched personalises the issue in that it targets the incumbent President as an individual. We do not encourage this trend because the framing of the questions for this Court’s interpretation of constitutional provisions should not target any individual as it is meant for general application as the interpretation is binding on every person in the Republic. What we are dealing with in the present case is the office of the President. We of course understand what the question is or what it ought to have been and what it aims at, namely, the office of the President. The question therefore is or ought to have been framed as follows: Whether in terms of Article 106 (3) and (6), a presidential term of office that ran from 25th January 2015 to 13th September 2016 and straddled two constitutional regimes can or should be considered as a full term’”.
The UNZA academic said both the language used by the court and the justification provided for inventing their own question and discarding the questions raised by the applicants were incriminating.
“There are three fundamental questions that arise from the reasoning of the Constitutional Court. First, from where did the judges draw their understanding of what the “question ought to have been”, outside what the parties to the case submitted? Second, which law or authority gave the court permission to discard or completely throw away the applicants’ specific questions and replace then with the court’s own question? Third, if the Constitutional Court found that the arguments presented by the applicants did not meet the required standard to give them the reliefs sought, based on the specific questions that were brought to the court for determination, why didn’t it dismiss the case? It is a known principle of the law that a court, as a neutral arbiter, should never volunteer anything, be it a question or issue without the knowledge and consent of the parties involved or outside what the parties have presented to the court for determination. The moment a court does that, then it joins one of the contending parties and loses its impartiality. When a judge loses their impartiality, then they lose their authority to be called a judge. Since impartiality is the hallmark of the independence of the judiciary, what the judges of the Constitutional Court did amounts to the highest form of incompetence and gross misconduct. This is a potential ground for their removal from office. The fact that all the six judges of the Court were unanimous in their shocking decision means they are all culpable”, he said.
Dr Sishuwa added that it was wrong for the ConCourt to threaten and intimidate citizens into submission of its judgements using contempt of court powers.
“I note how the Constitutional Court began its judgment on the eligibility case with a warning to potential critics right in the opening paragraph. The Court seems to have been fully conscious of the problematic nature of the judgment they were about to deliver and the likely ruthless criticism it would attract from the public. It therefore sought to insure itself from public accountability and criticism by introducing the judgement with a stern warming to critics. We should remember that this threat from the Constitutional Court came about two weeks after the Supreme Court sentenced a critic, Gregory Chifire, to a shocking six-year-prison term for contempt of court for criticising members of the court after they had passed what was deemed to be a controversial judgement”, said Dr Sishuwa.
“There is no need for judges to threaten or intimidate citizens, especially those who raise fair comment on their decisions. Article 118 (1) of Zambia’s Constitution provides that “The judicial authority of the Republic derives from the people of Zambia and shall be exercised in a just manner and such exercise shall promote accountability.” In its judgement of the infamous Chifire case, the Supreme Court, in interpreting the word accountability as used in the cited Article, stated that “The word accountability curtails judges’ functions by requiring them to be transparent in the justice delivery system (hence the need for open court hearings) and the need for a reasoned judgement, which explains to both parties why one has lost and the other succeeded”. In seeking answers to the questions I have raised above, I am holding the judiciary to account, since the judgement of the Constitutional Court was so ambiguous that we now have two camps that have emerged with different interpretations of the same judgement. I am also giving effect to Article 122 (4), which stipulates that “A person and a person holding a public office shall protect the independence, dignity and effectiveness of the Judiciary.” So, I hope that rather than sending me contempt of court summons, the Constitutional Court judges would thank me for being a good citizen who is performing a constitutional duty of holding them to account and protecting the integrity of the Judiciary.”
He’s also into group think mentality of typical UPND sycophants and zealots and enemies of progress… No wonder we educated danderheads like Mr John Sangwa SC…
Fwanya-I don’t think you read the full article, please take sometime and read it again, it’s worth reading don’t rush to judge anyone.
The article has pointed out some good key points, I’m a criminal justice major not lawyer but I clearly understand the law codes very well. Under normal circumstances those judges would not be in current positions, they do not meet the requirements you need to have more than 15 years of experience in constitutional law which is the key factor you don’t get appointed for knowing someone or been someone’s friend things get complicated later in the future. But again we are dealing with calculative criminals trying to cheat the poor people. Here is what will happen next year their guy the “RAT President” will not be eligible to run…they will panic and…
You’re a mental retard. First of all you are imagining progress in peoples lives. Abantu ba chula. That state house beggars line will come to an end weather you like it or not. Maybe not 2021 but one day and even not with UPND. We have been through it. Ask Super Ken. Ulebenga Mambala
All people that do not rule or vote in favor of UPND and their god HH are dull, incompetent, uneducated and an qualified. It you need to be named otherwise vote for the under five. This is the mind set that people that belong to the tonga cult have. For PF, whenever they lose they go down on the drawing board and access how they lost. PF is not the best of parties that have ruled Zambia but UPND under ichilema will make the Devil look holy once voted into power.
Fwanya – Zambia is bigger than your UPND…you have to wake up and start employing critical analysis and thinking on these social forums. Next you will start telling the State Counsel Sangwa to form a political party.
Ba Fwanya, how about responding to the questions posed by Dr Sishuwa or any of the points he has raised? That way, we the readers will learn from you and him. The man from UNZA has raised fair arguments in a very civil language. This thing of calling anyone who disagrees with the actions or decisions of a state or government official as UPND suggests incapacity to think rationally.
The job of the Judiciary is to help settle didputes in a civilised manner so that society functions well. Before civilised dispute resolution, there used to be vendettas; your clan killed my grandfather, I also hv to kill one of u to even scores. This is the eye-for -an- eye justice of the Old Testament and the Koran. In the modern world, we frown upon this kind of justice. But whn courts begin to fail to give reasoned verdicts in the modern world, they lose their standing. Supreme Court judge Mumba Malila has done us a great favour in his latest book CONTOURS OF A DEVELOPING JURISPRUDENCE. He has laid it bare there. Some elements in the Zambian judiciary are passing judgements that hv no foundation in common sense, law and logic. Sishuwa is in great company.
Sangwa and co are frustrated men who have been bought off by a few dollars to cause havoc. Who are you to demand that judges are disbanded? The law is greater than any one man. It is even greater than lungu . This is why lungu respected the courts to rule on his eligibility. Use the courts of law to raise any issues if you are not satisfied with the ruling. Do not sink so low as to state learned councils are incompetent. You are dangerously damaging the reputation and confidence of the public in our courts. This is professional gross misconduct and rightly so you should be banned. Kz
The Constitution has a set standard of QUALIFICATION TO BE JUDGE in Concourt, the appointed Judges do not meet those standards, what do you call them ? UNQUALIFIED is the correct term and are INCOMPETENT, it is not about as we are hearing from that Dull Lawyer called Makebi Zulu ” no they were proposed by Judicial Service Commission” and no “they were ratified by Parliament”, look, all those stages are issues of procedure and not a benchmark of Qualification of the Concourt Judges. The Benchmark of standards of Qualifications for Concourt Judges is in the Constitution and once those things are not met, then they are NOT Qualified , simple. It remains on record that CONCOURT Judges in ZAMBIA are UNDERQUALIFIED. Remove those UNQUALIFIED JUDGES, appoint Qualified JUDGES according to…
Shuwa shuwa Another bitter stooge.I hate his attitude
This boy is another of Akainde’s brainwashed bigots who think and see anything through tribe. Nothing good will ever come out of the Government until their god sits in statehouse God forbid.
All of Zambia’s systems are now rotten to the core thanks to PF
Edgar Lungu never made sn application to the Constitutional Court to rule on his eligibility in 2021 elections. It’s Danny Pule, a supposed leader of an opposition party and his ilk, who moved the Court. Now the cat is out of the bag. Lungu’s own erstwhile political adviser has told us who really moved the Court. It wasn’t Danny Pule. Anyway, no surprise here; the suspicion was always there that Lungu was acting through proxies. Thank u KZ for removing all doubt.
Sishuwa Sishuwa for President 2021!!!
Could this be the third force that has been predicted to take over in 2021? Same as what I called the Saviour who is being prepared in heaven.
What I like most about this fellow is that he thinks and analyses issues, an essential ingredient of anyone who will rule over a diverse collection of 18 million individuals called citizens, each with his own unique brain given by our God.
….Clearly, Trible HH does not possess those attributes, not even one. His basis for being leader of trible UPND was laid out in 2006, need I say more? We all know don’t we? He has confirmed it by refusing to apologise. By the way, under those circumstances in which he was annointed, is he eligible for nomination in 2021? We shall see what Concourt will rule when Trible HH nomination in 2021 is challenged. Uuhm, looks like there will be no successful nomination in 2021 except our untainted Third Force, clap clap clap clap!!!!!
By the way can LAZ and Judiciary lay out the errors in Sangwa’s arguments about the Concourt judges? This matter is now in the public domain across the legal world. His arguments may look uncouth but it is not safe to leave unclarified. To end up with simply barring him from practising law will only reinforce the debate.
Eventually John Sangwa will hv to appear before a tribunal of the Law Association of Zambia where the Judiciary’s complaint will be presented. A group of fellow senior lawyers will preside over the matter. As usual Sangwa will also be heard. That’s where it can get nasty. Those with a sense of humour are in for great entertainment.
@Nimwine-You are right my friend once again…ladies and gentlemen panic mode:
The (PF) should have looked away on this one…this will get nasty soon…they are dealing with group of educated lawyers no just lawyers but good lawyers…Just a quick recap of how this will go down… John Sangwa and his firm will appear before tribunal and the real game will start then…and the 2021 eligibility question will grow…like always (PF) not thinking through…damn asses…your time is coming.
No 3rd term.
Dweny Mwanba: John Sangwa knows wht it is put together an arguable case before a superior court on behalf of a client. He knows hw much he has had to learn purely out of being involved in a matter. He knows the lessons he has learned along the way, the mistakes he has made, observing the tricks of the trade from those senior to him ,which lessons someone who has not gone through that experience is incapable of learning and therefore incapable of being a fair and qualified judge of the Constitutional Court. Keep your eyes and ears open to see hw this pans out. Sangwa, it seems to me has not said wht he has said about ConCourt judges without good reason.
That Foolish so called state counsel has had no serious case in his favour. when he was lectuerre at UNZA, ZIALE pass rate for UNZA students has been 2%. What are we talking about here. The chap was a lead Lawyer for LAZ in the Concourt and he lost miserable and now calling the judges incompetent. Who is really incompetent between the judges and useless Sangwa?
The ConCourt is a monster created by Edgar and PF, so it must be disbanded and removed from our statutes. The addition of the Chief Justice as proposed in the infamous and useless Bill 10 won’t cure its shortcomings. We want the Supreme Court to continue to hear and pronounce itself on Constitutional matters. Several precedents have been set were the Supreme Court has sat as a trial Court. Instead of creating another monster, please increase the number of judges in the Industrial Relations Court because that’s what people want. ECL2021 Aluyeni!
Nemwine you are very dull. Ask me why I think so and I will explain
KZ: I won’t ask u. You hv already said it in black and white.
“John Sangwa’s observation that President Edgar Lungu dribbled Zambians when he appointed unqualified individuals as Constitutional Court judges,…”
That is why Sata had lungu, because of lungus ability to bribe and corrupt every system around him. No other reason. Sata liked to think he was not corrupt himself so had a person like lungu to do the corrupting.
When people say lungu is an intelligent lawyer, this is what they mean……he is second to none in corrupting whole systems and using all gray areas of the law to carry out illegality
Lawyers are confusing the nation. We miss those times teachers led the nation and lawyers placed in their rightful place… It’s seems lawyers are holding the nation at Ransom.
KZ : I won’t ask u. You hv already said it in black and white. No clarification necessary.
you are an iy*****. what has this got to do with ba SATA
The way ba PF are mistakenly misinterpreting the whole thing is as if the Experts in Constitutional Law are saying the PF party is not eligible to contest the 2021 elections which is not the case! Are there no capable people in PF to stand on the party ticket in 2021? The KBFs are more than qualified to bring sanity to PF which ECL has destroyed by adulterating PF with corrupt elements from MMD!
It’s very clear that ECL is selfish! You have stood twice on PF ticket! Give your friends a chance and save the party from an embarrassing defeat in 2021! Don’t cheat yourself about infrastructure! People are suffering! RB did very good roads towards the end of his term but lost. Why? Because he allowed himself to be surrounded by bootlickers who blinded him from reality on the ground! If you…
RB did very good roads towards the end of his term but lost. Why? Because he allowed himself to be surrounded by bootlickers who blinded him from reality on the ground! If you love PF Mr ECL, step down honorably! The Constitution is very clear you are not eligible! You are a Lawyer for goodness sake and with or without the Concourt ruling, you should know better! Should you insist on running because you are banking on the questionable Bill10, most PF members won’t be voting for PF! You stand a better chance to be protected by a successor from PF. A non-PF successor will without question send to Jail for the many wrongs you have committed in a short time!
Lungu has been elected twice in two different constitution periods. Firstly under the amended 1996 constitution and secondly under the 2016 amended constitution. Those arguing by saying Lungu’s first term didn’t count because he served less than 3 years may the same people explain how we will all look at RB who served less than 3 years too? If the current constitution is disqualifying Lungu’s first term as a full term, what effect does this have on RB, should RB be no longer regarded as former president of Zambia if we take it that the current constitution overrides what was done under the past constitution? What is currently contained in bill 10 that looks to correct this anomaly which is making the PF push for it to passed in parliament? Kaya mwe.
Fwanya, it’s beggars belief to see people like Shishuwa resort to subtentorial reasoning. I’m afraid we may have a throw-back generation at large in Zambia.
Very good arguments by one Dr Sishuwa…. as usual articulate and to the point.
The question though is who is actually going to remove these incompetent Lungu’s sycophants? Lungu himself? Parliament? The sleepy public? I see no one!
Reading the quoted judgment by the ConCourt really makes sad reading. They couldn’t even write in proper English language.
Love them or hate them they decided fulstop. That is the highest ciurt in the land. They are there to stop time wasters and settle matters once and for all. All the girls a d boys not happy should appeal through the courts of law. Some people such as Sangwa have nothing to loose because they have lost everything.
Rowdy: U hv brought a new dimension which I had never thought of. I think the nxt few months will be interesting in Zambian politics.
Retire sishuwa shishuwa, he has downs syndrome.
He is a bunch of lightweight alcoholed bones.
What hogwash!
Incredible!
#eclwillbeontheballotsin2021
An uppercut hurts. If it can’t floor you the best response is to hold on to your opponent. A ca’ foul play but necessary to allow you enough time for revival.
My brother Sishuwa is a deadly mix. Intelligent, witty, brave and sarcastic. An erstwhile dueller who takes an argument to its logical conclusion with vigorous confutations and utter relish. You may hate him for his candor but you have to respect and admire him for his irrefutable arguments on Zam con-court. RESPECT my man.
Pf is endorsing President Lungu the incumbent to run for 2021 but President Lungu has not said he is. Why are we arguing? Unless I have missed something, I have not heard the President come out publicly to state his position. Pf is going to its elective general assembly soon and we do not know what the outcome will be. Why not wait? The President is a lawyer and understands the constitution. Like him or hate him, do not take him for a fool.
The Court cannot change the question without the petitioner being informed and asked whether the changed question still remained wht the petitioner had intended. It’s that simple. The Court should hv answered the question it was asked by the petitioners and not the question that the Court thought the petitioners should hv asked.
Iam PF and dont want lunch to stand .He has destroyed Zambia.If he gonna stand I won’t vote for PF.No third term .u have messed up the country.We need our PF back.Atase babe.The local currency is now useless n u want to stand bcoz of those corrupt Judges?Hell no we gonna defend mother Zambia.Sangwa muntu week.Your ministers now have abandoned u.things are going bad.
Can someone give me a list of judges that you think qualify
It’s time for educated Zambians to start speaking up for our country.
The scoundrels don’t deserve a single vote, it’s time to pack up and leave.
Bravo Dr Sishuwa,
I read Dr Sishuwa’s article and also Sangwa’s, it seems to me the constitutional court judges are presiding over a Kangaroo court in a banana republic.
Anyone defending the PF government now has no SOUL, if you read this take a little break and do some soul searching for your own good.
Sangwa is saying they should have 15 years experience IN human rights or constitutional law. Should they?
Many years ago, I read that “the law is an arse!” Not every lawyer should agree with a law but they must respect it. Whether you like it or not, follow it. And when the final adjudicator gives their ruling, well, bite the bullet. You may make serious attempts to amend it, but still follow the law which is a pain in the arse. Vilifying our judges is not right. Their work is to interpret our law…kwamana.