Part 2: The Scale of Justice In Zambia Tilts In Favour of The Rich – Sentiments of ‘A President On Death Row’

By Isaac Mwanza

“We have a system of justice that treats you much better if you ‘re rich and guilty than if you’re poor and innocent. Wealth, and not culpability, shapes outcomes,” ~ Bryan Stevenson, American lawyer

INTRODUCTION

The Zambian President, H.E Hakainde Hichilema has his name entered into the book of quotes in which leaders such as Kenneth D. Kaunda, Martin Luther King Jr. and Robert F. Kennedy became the voice of the marginalised public. Our President achieved this rare feat in declaring how, in his opinion, Judicial systems favour the rich and condemn the poor, and that nothing is done to change this fact of life.

It started on Monday or so. Judges of Superior Courts received invitations that boldly read:

“The President of the Republic of Zambia
Mr Hakainde Hichilema
Requests the Honour of Your Presence
At the Luncheon to Mark the Abolishment of Death Penalty
At State House on Wednesday, 28th December, 2022 at 13:00 hours”

JUSTICE FOR THE RICH AND PRISONS FOR THE POOR

On a sunny Wednesday afternoon, a cluster of Judges and other elites made themselves comfortable on gold-coated chairs and well-decorated tables, taking softies, drinking wine and dining beneath spreading tents under the plane trees of State House in our capital, Lusaka.

On another table with chairs that appear to have been beautifully made from the expensive mukula tree was the country’s Chief Justice, His Lordship Dr. Mumba Malila S.C, Speaker of the National Assembly, Ms. Nelly Mutti joining the President, Vice President Hon. Mutale Nalumango and the Minister of Justice Hon. Mulambo Haimbe S.C. All three arms of government were under one roof to celebrate the abolition of the death penalty from Zambia’s statutes.

Barely 2.6 kilometres South West from where these Honourable Judges sat lies the Lusaka Central Prison, brutally known by its acronym, Chimbokaila, an olden green-to-purple painted facility housing incarcerated, frail and dying men and women in ragged clothes. At another location, approximately 5.8 km West of State House lies Kamwala Remand prison, surrounded by barbed wire and armed guards where another unfortunate bunch live in squalor and on meagre rations.

At Mwembeshi Prison, a timid male juvenile Dabwiso Zulu from Chunga Township, hopelessly sits in a tiny overcrowded cell. The blue clouds drifts lazily overhead. At the age of 18 and having lost both parents, he was charged and tried for alleged murder for the death of a patron at a bar where he was working as a barman. For 2 years or so, Dabwiso has been waiting to know his fate for a crime he denied committing.

Dabwiso recounts, with tear drops increasing every second, the ordeal of his unanticipated arrest and charging. With his family and freedom far out of reach, he is at the mercy of a Judge who may deliver a verdict at her or his own time.

Meanwhile at State House, Judges and other elites dine and wine to celebrate the decision by the Executive and a divided Parliament to purportedly abolish the death penalty. Then, “boom!” President Hichilema unleashes bombshell remarks about the Zambian justice system and how Judges deliver what may be called “justice,” but in the President’s way of thinking, is hardly justice at all.

In commenting on those who have been sentenced to prison, President Hichilema bluntly stated:

“You heard the figures, numbers of people who were executed and those who were not. I can bet as I stand here that some of those who were executed never committed crimes that led them to being executed. I was on death row myself technically… Definitely I can vouch that the 6 of us never committed any crime of treason… If we were in that situation, and depends on the prosecution; if the prosecution had a stronger lawyer than our lawyers and the trial went on, we could have been convicted by any of these judges.”

After the laughter and clapping in applause from the elites in the audience, I could not fathom what was going through the minds of the Judges in the face of the President’s blunt revelation that indeed, cases in our courts before these very Honourable Judges are won based on the strength of the lawyers one would hire, against those who prosecute and, by implication, that cases before our Judges are not always decided on merit, based on the facts or the law, but by the ability of the lawyer to persuade the Judges one way or the other.

It was an utterly shocking revelation, coming from the President of the Republic, the fountain of justice, under whom all authority of law enforcement and prosecutions fall. It was a blood-chilling revelation as to the state of the justice system in Zambia.

Speaking for myself, on several occasions I have appeared and argued cases before the Constitutional Court. Even where I disagreed with some decisions of the Court, I still maintain great admiration for the Judges, the sobriety they espouse and the consideration they exercise when encouraging and listening to ordinary citizens like me who apply and are granted audience before them in person without representation by learned counsel. The lack of quality legal representation has not acted as a disadvantage before that Court.

Of course, there is need for the Constitutional Courts to do more in giving clarity to their judgments. But to intimate that Judges base their decisions on quality of legal representation is a blood-chilling averment by the President of the Republic whose effect may contribute to eroding the little confidence that citizens may have in our justice system.

Nonetheless, this bold revelation by the President requires that our Judges, as perceived neutral referees, and ourselves as a people and nation should undertake some deep self-introspection on the status of our justice system.

We need to reflect on how the poor, such as that 81-year-old Mr. Tie Mwape, charged with trafficking in less than 100 grammes of marijuana and cannot afford to hire very good lawyers like the President when he faced his treason charges, end up in remand prison simply because poor Mr. Mwape could not afford a lawyer of the right quality, or any lawyer at all or the itself is working against him. It is a shocking scenario.

We also need deep reflections on how the justice system, as whole, treats those on the other end of the social or economic spectrum, such as young Frank Mugala, a 14-year boy who was shot during the infamous “gassing period” and whose family is fighting Court battles to have the State compensate them, while other politically-connected detainees have already entered into consent Judgments and succeeded in compensatory settlements with the State.

These settlements, like immunity agreements which for the years have been issued by the office of the Director of Public Prosecutions, are handled by top notch lawyers needing more days to reach a successful conclusion for the politically-connected complainants. The case in point being those of Mr Ackson Sejani and the wife to Chief Mukuni, which cases are in public domain

We need to reflect, with approval, about the rare and landmark moments in which our Judges exercised insurmountable courage and boldness to rule against the Executive and the wishes of a powerful President as it happened in 2016 when Ministers were adjudged by the Court to have overstayed in office after dissolution of Parliament, paving the way for clarity of the law and bringing certainty to our electoral and transitioning process.

Our Judiciary needs to reflect on the high number of young people, men and women who have been incarcerated in our detention facilities who, for years, may have only seen the doors of the courtroom once and do not know when they will next appear and have their day in court.

What is also interesting with subtlety revelations by President Hakainde Hichilema, a “proud treason detainee” as he called himself, is how the law enforcement and a judicial system can and has been used to punish those on the other end of political spectrum by successive governments, and now using the easy-to-convict charge of being in possession of suspected proceeds of crime which require no proof that a crime was indeed committed.

What President Hichilema essentially understood with his incarceration is that even if he did not commit the crime of treason, with which he was charged, one of those Judges could literally have sent him onto death row to be hanged, not because he had committed a crime but because the arguments from the powerful lawyers belonging to the more powerful entity, namely the State may have overcome his own lawyers. That the fact that Mr. Hichilema was in fact innocent would not have counted at all.

It is a chilling thought coming from the President of the Republic especially when one looks at how many more poor souls have no legal representation.

There is therefore the case of Mrs. Mumbi Phiri, the Deputy Secretary General of the defeated former governing party, the Patriotic Front, who has found herself in the same predicament as President Hichilema did some four years ago. Mrs. Phiri is accused of the murder of a supporter of President Hichilema’s political party some 3 years ago during a campaign for a council seat.

The difference between the case of Mumbi Phiri and President Hichilema is that Mrs. Phiri’s case is of no interest to the International Community or the Church to exert the same pressure which was exerted then; she is the nominal deputy chief executive of the fallen former governing party which was relentlessly demonised by both President Hichilema and his international supporters, and is therefore the villain of the peace.

By President Hichilema’s assessment, then, is Mumbi Phiri doomed to incarceration regardless of the facts? Will our judges ignore the facts and go with persuading arguments from powerful prosecutors representing the all-powerful State? Even when there is some evidence in that case, as reported by the media, of one Brona, Defence witness No. 2, who says he was offered some money and a job to implicate Mumbi Phiri and Shebby Chilejwa, what does justice look like in such a case?

CONCLUSION

The revelation by Zambia’s President Hichilema on how persons like him who can afford quality legal representation end up getting justice while the poor who cannot afford such quality representation lose cases and are sent to prison. This is the wider and general reflection on how our society actually believe that our Judiciary dispenses justice. In cases where the executive has special or particular interest, it becomes a tall order to win a case against the State unless Judges decide to do what is right for the country and posterity.

I still believe the Zambian Judiciary has done much better in the past when it interprets the law correctly to check the excesses of those in power, namely the Executive branch or the National Assembly when it purported to indefinitely imprison Dr. Fred M’membe, Bright Mwape and the late Mrs. Lucy Sichone. But we must also always encourage our judges to act more boldly and without fear, especially in protecting the poor.

[First published by the Daily Nation, 2022]