Class of 2020: Zambians who gravely disappointed last year Part I

By Sishuwa Sishuwa

In contrast to the shortage of authentic, consistent heroes in public life, Zambia had a huge surplus of disappointing individuals and institutions in 2020, as the competition for shameless and uninspiring conduct grew even fiercer than in previous years. Indeed, such is the surplus that if we are really serious about diversifying and resuscitating Zambia’s ailing economy, we will do well to consider exporting many of them alongside copper.

Linda Kasonde

The decision by the Electoral Commission of Zambia (ECZ) to discard a valid and lawfully established voters’ register, numbering 6 million voters, and draw up an entirely new one within a 30-day window could have been stopped if Linda Kasonde, the Executive Director of Chapter One Foundation, had not challenged it in the Constitutional Court in October 2020. Earlier in August, Kasonde had dragged the government to the ConCourt seeking two reliefs: an order mandating the electoral body to carry out continuous voter registration and another directing the Ministry of Home Affairs to implement the mobile issuance of National Registration Cards throughout the country. In early October, she amended her petition to ask for a third relief: that the decision by ECZ to ‘disallow currently registered voters from voting in the 2021 general election is unconstitutional and therefore null and void.’ In approaching the ConCourt on this specific matter, Kasonde messed up big time and demonstrated poor judgement in three most disappointing ways.

First, the main opposition United Party for National Development (UPND) had already raised a similar case in the High Court by the time she was making an application to amend her petition before the ConCourt. Filed in late August, the UPND’s case was postponed indefinitely on the ground that Kasonde had a related matter before the superior Constitutional Court. Efforts to get Kasonde to withdraw her case from the ConCourt failed, consequently giving the High Court reason to decline hearing any applications for quashing the ECZ’s move using the pretext that a superior court was dealing with a related matter. In effect, she held the whole country hostage by blocking access to justice channels.

Second, Kasonde exhibited poor judgement when she filed her application in the ConCourt by way of a normal petition rather than through judicial review in the High Court, which offers the best returns for time-bound cases especially when Article 28 of the Constitution of Zambia is taken into account. This is because under the procedure she followed, it is nearly impossible to secure some interim reliefs that would have stopped the ECZ from implementing its plans, pending the determination of the matter. This allowed the ECZ to proceed with its schemes and has led to a situation where both her case and that of the main opposition party have now become moot or been overtaken by events. Thanks to Kasonde, President Edgar Lungu and the Patriotic Front (PF) have got one of their key pre-election aspirations – a new voters’ register, numbering 7 million, that is generally favourable to them.

The electoral body’s failure to provide a provincial breakdown of the provisional number of registered voters and its recent announcement that the new register would not be ready for inspection until April – about three months before the general election – means that it would be nearly impossible to conduct an additional voter registration exercise aimed at preventing the disfranchisement of potentially tens of thousands of Zambians who were unable to re-register in the allotted time. The majority of these are likely to be opposition voters. Three of the four provinces in which Lungu’s main opponent Hakainde Hichilema retains huge support are predominantly rural areas. Limited publicity about the commission’s plans to abolish the existing register, the long distances to the nearest administrative centres, the onset of the rainy season (which characterised the 30-day period), and the limited time that was available to complete the exercise may have all undermined the capacity of voters in these areas to take part in the earlier voter registration.

Third, the ECZ’s decision to abolish the permanent register rather than updating it, as required by law and as has been done in each election since 2005 when it was first created, violated a parliamentary statute, not Zambia’s constitution. It is therefore difficult to understand Kasonde’s motivation in taking the matter to the Constitutional Court when the best and most efficient option was for her to either join the already existing case brought by the UPND or commence a separate matter before the High Court, assuming she felt the former was weak. Moreover, why did Kasonde overlook the record of the Constitutional Court in frustrating time-bound and politically sensitive matters that challenge decisions of the executive or its affiliated institutions? It is possible that the ConCourt may only hear her case after the August election. Even if she had filed a certificate of urgency on the specific issue of abolishing the existing register, there is no guarantee that the ConCourt would have heard and determined the preliminary application before the commencement of the voter registration exercise. This further demonstrates the poverty of her decision to go to the ConCourt in the first place when the judicial review route before the High Court offered a speedy resolution of the matter, with recourse for further appeal to superior courts, if necessary. Argh, who advises Linda Kasonde? As a result of her intransigence, the historic opportunity to secure interim reliefs and arrest the faulty process initiated by the ECZ was squandered or lost. Wittingly or unwittingly, she has participated in a plot to circumvent the electoral process and create a possibly dodgy voters’ roll that is guaranteed to deliver a positive result for Lungu, the incumbent. Voter registers are the elections!

What is most disappointing is that Kasonde refused to withdraw her case even when several well-meaning people, including lawyers more senior and experienced than her, pleaded with her to do so. If she is to succeed in her advocacy work, which includes efforts to defend democracy, Kasonde would do well to learn, urgently, the value of building consensus with other progressive forces, especially when dealing with important national matters. By nature, advocacy is collaborative and requires the subordination of one’s ego to the collective, no matter how informally constructed. It is dangerous to retain a lone-wolf kind of attitude when one needs to work with other people to determine the most effective strategy for achieving certain goals and the best course of action on issues of greater public interest.

Those who participate in causes meant for the promotion of the public good need to learn the importance of actively listening to others, exercising humility, and retaining the capacity to be persuaded to another point of view if the weakness of their own is shown. How ironic that Kasonde, thanks to her rigidity or refusal to withdraw her case from the ConCourt, has helped facilitate the very outcome she was seeking to prevent – the production of a potentially problematic voters’ register. Her actions demonstrate how small decisions that might initially seem insignificant can over time produce unforeseen, large and adverse consequences. They also provide a perfect example of how ordinarily well-meaning individuals can sometimes commit grave mistakes that hurt public interest and potentially alter the course of a nation’s history.

Magistrate David Simusamba

In 2020, Lusaka Magistrate David Simusamba damaged the integrity of the Judiciary and fatally wounded public trust in it when he refused to recuse himself from presiding over the case involving opposition National Democratic Congress (NDC) leader Chishimba Kambwili after the latter accused him of soliciting a K360,000 bribe in return for a favourable verdict. To demonstrate the seriousness of his claim, Kambwili, who was charged with the offences of forgery, uttering a false document and giving false information to a public officer, lodged a formal complaint against the alleged extortionate conduct of Simusamba to the Chief Justice of Zambia, Irene Mambilima. When Mambilima failed to provide a satisfactory response to his grievances, the NDC leader sued Simusamba in the High Court while his case remained active before the same Magistrate. Not even this persuaded the corruption-accused Magistrate to step aside in the interest of justice and pave the way for the matter to be re-assigned to another judge.

As the old adage goes, it is not merely of some importance but is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done. By refusing to recuse himself from hearing Kambwili’s case, Simusamba violated this established principle, opened himself to perceptions of bias and conflict of interest, and seriously undermined public confidence in the judiciary. A judge loses their impartiality in court the moment they start having differences of a serious personal nature with the accused. Once there is a perception that a magistrate or judge is an interested party in the case they are adjudicating, the principles of natural justice require such a judge to recuse themselves. The failure to do so places the judge in an awkward position, one that Simusamba found himself in.

If Kambwili’s conviction is now seen by the public as a consequence of his failure to pay the solicited bribe, an acquittal may similarly have been regarded as proof that payment did take place – the more reason why Simusamba, to preserve the integrity of the judiciary and his own, should have stepped aside. It is worth noting that the subordinate courts are where most Zambians access justice. The failure to ensure that the public sees justice being dispensed independently and fairly in these structures does not do the justice system any good. If anything, it risks creating a situation where people, with their faith in the courts seriously eroded, begin to devise their own parallel systems of obtaining or meting out justice.

Chief Justice Irene Mambilima

What has really happened to justice Irene Mambilima? It would appear that being appointed to high office under President Lungu corrosively erodes any good judgement that the appointee previously possessed. As chairperson of the Electoral Commission of Zambia, Mambilima was a well-respected figure and widely acknowledged to have run the previous elections credibly. As Chief Justice and head of Zambia’s judiciary, she has been the opposite, presiding over the contested aftermath of the 2016 elections. Judicial independence has been eroded consistently under her watch. In 2020, Mambilima joined those actively damaging the integrity of the judiciary with two contributions of her own. The first and most glaring was her failure to use her administrative powers, pursuant to Constitution of Zambia, to stop Magistrate Simusamba from handling the above-mentioned case of Chishimba Kambwili. Before suing Simusamba in court, the NDC leader had formally complained to the Chief Justice and requested her to exercise her administrative functions to compel the allegedly bribe-seeking Magistrate to recuse himself from handling his case.

In a letter dated 17 December 2019, Kambwili wrote that “Simusamba has on at least three (3) to four (4) different occasions solicited money from me in order for him to deliver Judgment in my favour. Again, I have irrefutable proof of this conduct. I have [previously]…restrain[ed] myself from taking very drastic action against him especially that he is a young man with a lot to learn in life, but his conduct does not seem to be one of a person who is…willing to change and one capable of dispensing justice in my cases. Instead, he has proved to me that he is on a path to personally destroy me especially that I have not paid him the money he has been demanding totaling (sic) ZMW 360,000.00.”

Instead of asking Kambwili to provide the ‘irrefutable proof’ in his possession, the Chief Justice responded that Simusamba had told her that it was Kambwili who had instead offered to bribe him. Quoting Simusamba, Mambilima said that the corruption-accused magistrate had informed her that “…since the inception of the case in January 2018, Mr Kambwili has relentlessly attempted to bribe me with sums of money including offers to buy me a car at the time I had no car in the first quarter of 2018 when his case had just begun. He has on several occasions sent people most of whom are close friends including one of his lawyers to bribe me. At no time have I accepted any bribe from him or solicit for one and my message to all his envoys has been very diplomatic in order to avoid trouble for his envoys. In fact, My Lady, you may wish to know that the complaint before you has been triggered by my latest refusal to accept a bribe from him. [Recently], his new lawyer, Mr Cheelo who is a former classmate and friend approached me and told me that Mr Kambwili wanted help with his case and was willing to pay any sums of money and remove Mr [Keith] Mweemba from his defence team as he had noticed that he, Mr Mweemba, was being acrimonious towards me. I respectfully declined the bribe and stopped picking all calls from Mr Cheelo. This is what triggered Mr Kambwili to write the complaint”, Simusamba is said to have told Mambilima.

Given these serious accusations and counter accusations of corruption between Magistrate Simusamba and the person he was trying, one would have expected the Chief Justice – even without getting into the veracity of both testimonies – to immediately facilitate for the transfer of the case to a different magistrate in order to protect the judiciary from real or perceived appearance of bias. Oddly, Mambilima did not. Instead, the Chief Justice told Kambwili in January 2020 that “You will no doubt note that while you are accusing the Magistrate of corruption, he is also accusing you of the same. This being the case, I will refer the matter to the Anti-Corruption Commission (ACC)…. [In the meantime,] I have decided that trial in this case will proceed before Hon. D. Simusamba because whatever decision he will reach is not final. Either party has a right to appeal and in the event of such an appeal, the correctness of that decision will no doubt, be scrutinised by the High Court in every respect”.

Mambilima’s response was as strange as it was a damming indictment on her reputation. If the Chief Justice found the allegations and counter allegations of corruption between Kambwili and Simusamba so serious that they warranted the involvement of the ACC, why then did she not consider removing the Magistrate from handling the case? Simusamba himself admits that he had personal engagement with the accused of a nature that involves several offers of money – a judge should not have such dealings with a person he is trying. Whether he turned down the bribe or not is immaterial. What matters is that the alleged offer goes directly at the heart of possible bias or conflict of interest. The moment Kambwili offered to bribe him, Simusamba should have reported the NDC leader to the ACC and recused himself from the case.

In any case, Section 39 (1) of the Anti-Corruption Act obligates a public officer to whom any gratification is corruptly given, promised or offered to report the attempted bribe to the ACC or police within 24 hours, failure to which he or she commits a crime and is liable upon conviction to imprisonment for a period not exceeding two years. By failing to report Kambwili’s alleged bribery attempts to the ACC or the police, Magistrate Simusamba may have committed a crime. However, if he had reported Kambwili, then Simusamba could no longer continue adjudicating the case because a conflict of interest would have arisen, since he would have become a complainant and a witness against the accused person appearing in his court. This is the more reason why he should have either recued himself or been made to do so by the Chief Justice.

A key shortcoming of the Zambian judiciary is the failure to take the question of recusal very seriously. We saw this recently in the case involving former Director of Public Prosecutions Mutembo Nchito and the three-member tribunal that was appointed to investigate his suitability of remaining in office. When Nchito showed that two of the tribunal members were individuals who had previously lost their jobs after he had exposed their involvement in corruption and were therefore conflicted, Mambilima, presiding over the Supreme Court, brushed aside his serious grievances, ordering him to submit himself before it and stating that he could only complain after the tribunal had completed its work. How bad should things become before the principle of recusal is taken seriously by the Zambian judiciary?

Moreover, encouraging an accused person, as the Chief Justice effectively did to Kambwili, to get convicted so that he could later appeal to superior courts overlooks the time, legal and other costs of such proceedings and appeals. Mambilima’s conduct in this case was a perfect visible indicator to lay people about how rotten the judicial system may have become. It demonstrated her failure to show leadership as the person in charge of the administration of the judiciary, ultimately responsible for protecting its integrity. Allowing a magistrate facing a corruption charge to hear and pronounce judgement in the case of the accuser was simply a travesty. It should never have happened. Precisely in whose interest was the Chief Justice acting when she decided that Magistrate Simusamba should continue hearing Kambwili’s case? Why was it so important for this particular Magistrate, not any other magistrate in the whole judiciary, to hear Kambwili’s matter? And, if one may ask a separate but related question, why does it appear that many of the cases involving serious opposition party leaders and their supporters are only allocated to either Simusamba or Magistrate Felix Kaoma?

The second disappointing action from justice Mambilima last year was her ill-advised attack on lawyers who represented Chishimba Kambwili in the same case that was before Magistrate Simusamba. On 24 July 2020, Mambilima held a meeting with the newly elected leadership of the Law Association of Zambia (LAZ) during which she condemned the attacks on the Judiciary. According to a LAZ report on the deliberations of the meeting, the Chief Justice “expressed concern at the growing tendency by Lawyers asking Magistrates and Judges to recuse themselves, when a matter is not going in favour of the Lawyer having conduct. She noted the increasing tendency by some Lawyers to intimidate Magistrates at the subordinate courts in order to influence decisions”. By ‘some Lawyers’, and given her earlier official correspondence with Kambwili, it is almost certain that Mambilima was referring to Keith Mweemba, Christopher Mundia and Gilbert Phiri, who were representing the NDC leader in the case before Simusamba.

Mambilima’s chastisement of the affected lawyers was wrong because they were simply carrying out professional instructions from their client and had followed the right channel in expressing them – lodging a formal complaint to her office as opposed to accusing the Magistrate of being corrupt in the media. In effect therefore, the Chief Justice was condemning lawyers for doing their professional work as lawyers. Was her intention to intimidate the lawyers and impress LAZ to discipline them? Such conduct on the part of the Chief Justice is detrimental because it risks creating the impression that it is wrong to report a judge’s misconduct or to ask them to recuse themselves in instances where a clear possible case of conflict of interest exists. Mambilima’s actions also have the potential to undermine access to justice by creating an impression that there are problematic clients who do not deserve representation.

We are left to wonder, confronted with intense, potentially violent and litigious national political activities this year, including what is likely to be a disputed election, can Zambians have confidence in a Judiciary headed by justice Mambilima? History will tell.

…to be continued.