Compromised by politics? A response to ‘The Judiciary of Zambia’

By Sishuwa Sishuwa

On 19 January 2024, I wrote a short article in which I asked why all the four cases involving the State-supported Miles Sampa versus the main opposition Patriotic Front (PF) were only allocated to judges who belong to one ethnic-language group, three of whom were appointed to their role only months ago by President Hakainde Hichilema. To give context to the piece, I provided in the same article a link to a longer opinion piece I wrote in December last year in which I demonstrated how Hichilema’s bid to either destroy or take control of the former ruling party has been largely facilitated by Sampa, a renegade PF MP who had earlier in October, and with the support of the State, organised a meeting that he claims was a convention that elected him as the party’s leader.

A curious development of all the court cases brought against Sampa’s actions by the party’s substantive leadership – alongside one that he had earlier initiated against them – is that the judges chosen to determine the matters have a few things in common: province of origin, ethnic-language identity, appointing authority, etc. I have previously written about how the country is split along ethnic-regional lines and how Hichilema has not helped matters by, as shown below, intensifying these divisions. Wondering if the case allocation was all purely coincidental or planned, I published my thoughts on Twitter, now known as X, in the stated article, reproduced unchanged below.

Are judges being cherry-picked to hear PF cases?

By Sishuwa Sishuwa

Why are all the court cases – three in the Lusaka High Court, one in the Constitutional Court – involving the State-supported Miles Sampa versus the main opposition Patriotic Front only given to Lozi-speaking judges?

The first case was allocated to Timothy Katanekwa – a Lozi speaker. The second case was allocated to Situmbeko Chocho – a Lozi speaker. The third one, which is before the Constitutional Court, was allocated to Kenneth Mulife – a Lozi speaker. The most recent case concerning 7 PF members (and presidential hopefuls) who have petitioned the legality of the convention that elected Sampa to the party leadership, has been allocated to Sililo Siloka – a Lozi.  Is this a coincidence or it is all planned? What is it that Lozi-speaking judges have that judges from other ethnic groups do not have? What makes, say, Bemba-speaking judges or those hailing from Eastern Province unqualified to hear and determine matters involving the PF versus Miles Sampa?

In addition to a shared province of origin and ethnic-language identity, three of the four judges handling PF cases – that is Situmbeko, Mulife, and Sililo – were all appointed to their current roles by President Hakainde Hichilema in 2023. The only exception is justice Katanekwa who was appointed High Court judge by Frederick Chiluba in 1996 but was just recently suspended from his position by Hichilema. If the argument is that the trio has a rather limited case load, why is it that judges from the other ethnic groups who were appointed alongside them are being overlooked for these general cases? Is there a fear that judges hailing from the Eastern and Bemba-speaking provinces cannot be trusted to hear and determine PF matters in an impartial manner? If there is none, then how best should we understand the fact that it is only Lozi-speaking judges who are being asked to deliberate on PF matters?

And given the gravity of the outcome of the cases to the fate of Zambia’s democracy and party system, especially the case given to Sililo, what explains the failure by Lusaka High Court Judge-in-Charge for general allocations, Charles Zulu, to assign these cases to a diverse set of experienced judges (– and there are many justices available from different ethnic groups!)? Similarly, why did Mweetwa Shilimi – another Hichilema appointee who was simultaneously promoted as Deputy President of the Constitutional Court, the official responsible for case allocation – overlook all the experienced judges on the Concourt bench for the recently appointed justice Mulife? 

Are judges from the ‘Zambezi region’ – where the President comes from – seen as more likely than those from a different region to make decisions that would favour President Hichilema, who, as I have previously shown in the article below, appears to be the driving force behind Miles Sampa and the PF leadership wrangles? If they are not seen this way, then how best should we understand the continued allocation of cases involving Sampa and the PF to relatively inexperienced judges who have only been in their positions a matter of months?

https://mg.co.za/thought-leader/2023-12-12-in-zambia-today-stealing-a-political-party-is-big-business/

As well as the desire to seek clarity on case allocations in the judiciary, my questions arose from a much wider context: the continued erosion of Zambia’s democracy under the leadership of a man who had vowed to rescue it when he was in opposition. The key context in the present circumstances, since the election of Hichilema and his United Party for National Development (UPND) in August 2021, is that the executive arm of government has been surreptitiously using its powers to undermine the vestiges of autonomy in the other State institutions that are supposed to exercise their powers in enhancing checks and balances. This infiltration reduces the ability of these institutions to fulfil their constitutional duty of revealing and restraining unconstitutional extensions of power by the executive, and – by the same token – allows the building of an unconstitutional concentration of State power within the presidency. So far, Hichilema and the UPND have carried out this task with considerable ease, impunity, and skill (albeit of a criminal variety), employing a line of political rhetoric and well-concealed hypocrisy that has gone without much opposition. Notable examples of this unconstitutional extension of executive power may be found in several cases.

The first is the use of the police to prevent rallies and meetings of all opposition political parties using a wilful misreading and misapplication of the Public Order Act. Since 2021, the police have blocked all public rallies called by opposition parties outside of by-elections, always citing unspecified security concerns or inadequate manpower. Added to this is the pervasive arrest of many opposition leaders, often detained without charge or with charges which are self-evidently trumped-up, trivial, or even laughable. Such frequent and almost daily occurrences are widely presumed to be orchestrated from State House.

The second example is the use of the Speaker of the National Assembly, the Lozi-speaking Nellie Mutti, to undermine the constitution and frustrate the ruling party’s opponents. Ordinarily, the Speaker is supposed to be elected by all members of parliament, but the ruling party majority in parliament has instead allowed the president to go over their heads and effectively appoint a UPND-aligned activist who previously served as one of Hichilema’s personal lawyers, and who has no previous parliamentary experience. Mutti recently took it upon herself to appoint a new leader of the opposition over the heads of the actual majority opposition party in parliament, despite the constitutional requirement that the leader of the opposition must be elected by a vote of the main opposition party. This case is presently before the Constitutional Court. Protests against Mutti’s leadership from opposition MPs have resulted in her slapping lengthy suspensions from Parliament on the affected lawmakers.

The third example is the executive’s capture of key formal institutions using a twofold strategy. One involves packing them with leaders that hail from the Lozi-speaking Western Province, the Tonga-speaking Southern/Central provinces, and the multi-ethnic Northwestern Province. From the key ministries, most of the security services, and the justice system, to the National Assembly, civil services, and Electoral Commission of Zambia (ECZ), the top leadership positions are held by individuals from a region that typically votes for Hichilema. This has fed general concerns of both ethnic marginalisation of regions that voted for the PF and the continued politicisation of these institutions. For example, the Lozi-speaking person appointed as ECZ chairperson is a former personal lawyer to the president and generally perceived as a ruling party supporter. There are currently many cases before the court of several opposition party by-election candidates who have had their nominations rejected by the Commission, apparently using powers not given to the body in law.

The other strategy involves filling prosecutorial and anti-corruption agencies with Hichilema’s allies. The individuals occupying the leadership positions of the Anti-Corruption Commission (ACC), Director of Public Prosecutions, the Attorney General, the Solicitor General, and the Minister of Justice, and the judicial bodies that recommend the appointment or dismissals of judges are all either ex-UPND lawyers, or Lozi or Tonga speakers. The staffing of these key offices with the president’s allies has given rise to the present pattern where there is a high rate of investigation and prosecution for corruption of high-ranking officials under the previous regime, contrasted with the notorious lack of judicial attention to high-level corruption in Hichilema’s administration, notwithstanding a series of recent exposures in the media of grand corruption under his watch. This situation has raised many public questions about political bias in the Anti-Corruption Commission, the police, and the Director of Public Prosecutions.

Here, we see a clear pattern of slippage from the rule of law, in the form of State capture by the executive arm of government which is capturing power from all other State institutions. With this erosion of the separation of power, there is a continuing slide into increasingly dictatorial behaviour by the government. Moreover, the above evidence of apparent unconstitutional extensions of State power are all being exercised in the area of trying to annihilate the existence of the largest opposition party. If Hichilema succeeds in his efforts to obliterate the PF, it will be a terrible development for Zambia’s multiparty democracy. This is because over the last decade, the country has evolved into a two-party system. Out of the 156 parliamentary seats directly elected under the first-past-the-post system, the UPND and PF share 142. If one of these parties disappears or is weakened, Zambia will effectively be a one-party state. The worrying thing is that this State-supported campaign to destroy the leading opposition party has already seen several institutions that are essential to liberal democracy – the police, parliament, the Registrar of Societies, much of civil society, and even Western interest groups – fall into line. Leading members of Zambia’s academic and intellectual community, mainly from the Tonga-speaking group and those from auxiliary ethnic groups like my own (Lozi), have chosen to be blind to these violations, while our political parties are paralysed because they are not allowed by the police to engage in normal political activities involving the masses.

These apparent moves towards establishing a de facto one-party state are self-evidently part of authoritarian ambition. In this situation, the judiciary is the last line of defence for two reasons. Firstly, the judiciary is firmly established under the constitution and forms part of a longstanding tradition of independence which is allied to, and partly incorporated within, an international system of adherence to standards of independently dispensed justice. Secondly, the judiciary provides the last line of defence against any executive transgressions against the constitution. If such transgressions are not declared invalid in court, then constitutional democracy is increasingly lost, and all that remains is an unhindered slide into dictatorship. It is therefore incumbent upon the people of Zambia to be ever vigilant about the integrity of the judiciary in holding the line against dictatorship.

Unfortunately, there have been a number of cases which have raised questions about the susceptibility of some judges to influence from both private individuals and State actors. Only two years ago, the newly appointed Chief Justice Mumba Malila addressed the entire judiciary and voiced his fears about the level of corruption within the institution. This detailed wider context explains why I got curious when I noted that all the four political cases involving the State-supported Miles Sampa versus the PF aimed at resolving the leadership wrangles in the main opposition party were being allocated to only judges from a specific region that supports Hichilema and those appointed by him. I quietly wondered if this was the earliest evidence that the judiciary is poised to deliver the interests of particular politicians, in the same way that other institutions such as parliament, the police, and Registrar of Societies have done. This is what led me to publish the short 19 January article on X, formerly Twitter, reproduced above. My interest was to know the objective criteria that governs case allocation in the judiciary.

The initial response to my article was the usual ad hominem attacks from supporters of the Tonga-speaking Hichilema and the UPND. They accused me of promoting tribalism, though they stopped short of explaining how exactly I, an ethnic Lozi, was promoting tribalism since the main subjects of my questions in the article are all Lozi speakers. Other detractors claimed that I am originally a Bemba speaker who was only adopted by Lozi-speaking parents. This would be laughable if it were not for the fact that government agents, relying on details on my national registration card, recently went to my village in Senanga district to investigate my ethnic roots. The 6-member team told my folks that they have been sent by the authorities in Lusaka to ascertain whether I was an ethnic Bemba masquerading as a Lozi because ‘some people in government’ could not understand how an ethnic Lozi could criticise the leadership of a man who comes from ‘our region’ – the first president from there.

I was not surprised when my village folks informed me about this disturbing development because I had several months earlier been tipped by prominent civil rights campaigner Brebner Changala that several senior UPND figures had complained on a WhatsApp group about my criticism of Hichilema’s administration and called for a probe into my ethnic roots. It is true that I am considered a traitor by those who think in narrow ethnic terms, including intellectual and professional elites from my region (lawyers, academics, economists, journalists, activists, etc.) who were critical of the governance pitfalls of former president Lungu but have maintained a deafening and incriminating silence on Hichilema’s transgressions. I worked with Tonga and Lozi colleagues at the height of the PF misgovernance. Their academic criticism of the regime was top notch. We were all doing it together and so happily because it was the right thing to do. I am now discovering that many of these were just staunch supporters of Hichilema who have now been accorded various privileges. Their mouths are now shut even to the very concerns they opposed under the PF. Under the UPND, it is harder to find a Tonga or Lozi who stands up to Hichilema’s leadership failures.

One or two may be disgruntled here and there, but many are fanatical supporters of the president, largely driven by ethnic-regional cleavages and loyalties. While those originating from my ethnic-region community had no issue with my criticism of Lungu’s rule, they now find fault in nearly any substantive criticism that I raise against Hichilema’s leadership. As well as weaponising intellectual and moral positions to advance personal and political considerations, members of this community treat me as a traitor whose criticism of Hichilema’s leadership actions risks undermining their cause for ethnic-regional supremacy. I normally tend to ignore these ad hominem attacks, which is precisely what I did with those who responded to my 19 January article with personal attacks or insults. I have sympathy and special understanding for those among us whose capacity for reason never extends beyond formulating ad hominem attacks. I suppose they cannot help it, even if they tried. Tolerating such undesirables is part of the burden we must bear for being human.

About a week after the publication of my article, I came across a press statement from the judiciary, dated 24 January, in response to my article. It contained a list of cases involving PF members to be heard in Zambia’s several courts. At a glance, I welcomed the institution’s intervention in the belief that it was out to deliver clarity on how the allocation of cases is done. Ordinarily, the judiciary does not react to statements made outside the courtroom; it speaks though its judgements or judicial opinions. For them to depart from this precept, I told myself before reading the statement, they must have recognised the significance of both the immediate and wider issues I am raising through the questions I posed. A closer reading of the judiciary’s press release subsequently shows that providing clear answers to the questions I posed was the least of its objectives. The body was far more interested in politicking, as the below paragraph-by-paragraph analysis of its response, shows. The body starts its reaction to my article, titled ‘Judiciary emphasises impartiality and commitment to the rule of law’, by deleting the identity of the person whose questions had caused the entire institution to issue a rare press statement.

The Judiciary of Zambia: “The Judiciary of Zambia wishes to dispel assertions circulated by some individuals and certain media houses that suggest the institution’s alignment with individuals, particular tribes, or political parties and particularly that “Judges are being cherry-picked to hear PF cases”.

Comment: We learn from this paragraph that the response is not coming from an individual office such as that of the Chief Justice or a respective High Court-judge in charge of the cases under discussion. It is coming from ‘[t]he Judiciary of Zambia’, which, according to Article 120 of Zambia’s constitution, consists of the Supreme Court, Constitutional Court, Court of Appeal, High Court, subordinate courts, small claims courts, local courts, and any other courts as prescribed by Parliament. The implication here is that all these courts sat, and this press release is a communique from that meeting. It is very sad and simultaneously frightening that the judiciary, the entire judiciary, is responding publicly to assertions by individuals and media houses who are unspecified. The judiciary deals with the law and specific facts from identified parties. It does not engage in rumour-mongering and has the responsibility to help the readers of their statement to know where their response is coming from. The decision to deliberately conceal my identity – even when anyone sane would know that the body were responding to what I said – appears to have been motivated by two considerations.

The first is to escape potential litigation since the judiciary knew that they were issuing a malicious statement over which they can easily be sued. The second is to create the false impression that the matter of case allocation had been raised by different people and institutions, and consequently warranted a general response. This way, the judiciary hopes to dissolve my identity into the generality of the population, including a lower layer of people who lack any basic understanding of how the judiciary works. The irrefutable fact is that I am the only person on earth who authored the article whose substantive contents the State institution found worth quoting. The Daily Nation, The Mast, and the Zambian Whistleblower, the only media outlets that carried my piece, simply republished it, and must be left alone. If the judiciary found what I said to be worth responding to, it should deal with me and have both the courage and decency to reference me as a human being. I have a name, a history, a clear identity.

We further learn from this opening paragraph that the goal of the judiciary’s press release is to dispel assertions ‘that suggest the institution’s alignment with individuals, particular tribes, or political parties…’. This is a misrepresentation of what I said, one that lowers the integrity of the judiciary and deepens our suspicions of it. No one said the judiciary was aligned to any individuals, tribes, or parties. The central issue I raised in my article, and which remains unaddressed, is how those four judges were allocated all the PF v Sampa cases. I am questioning neither their competence nor their qualifications. I am interested in understanding how only Lozi-speaking judges, three of whom are Hichilema’s appointees, found themselves as judges on all the four cases involving PF v Sampa. An impartial judiciary that operates on a rule-based system should have no problem in citing the source of the authority that determines case allocation. It is important that the judiciary answer this question. We have seen other institutions bow down to the manoeuvres or wishes of the executive and are closely monitoring the judiciary to see how they respond to the matter of the PF’s leadership wrangles. Picking out the fact that all the cases involving the PF versus Sampa factions have been allocated to judges with very particular shared characteristics is important. How was this possible? Can the judiciary explain?

The Judiciary of Zambia: “Our commitment to upholding the rule of law is sacrosanct. The Judiciary is an organ of State (sic) dedicated to upholding the principles enshrined in the Constitution and is above individual, tribal or party alignment. It is therefore essential that we dispel any misconceptions that may undermine public confidence in not only the institution, but the country as a whole.”

Comment: This reasoning commits the fallacy of diversion. By asserting that ‘the judiciary…is dedicated to upholding the principles enshrined in the constitution’, the institution is attempting to duck the central issue I raised and give itself leave to treat any evidence suggesting anything to the contrary as impossible and unthinkable. The implication of this absurd claim that the judiciary always upholds constitutional principles is that the body is therefore above criticism, and that anybody claiming to see evidence of malpractice is necessarily incorrect and mischievous. From this premise, the response from the judiciary consequently implies that all proper procedures must have been followed in selecting the judges to hear particular cases. The response fails to even mention – let alone consider – the series of questions I posed, or to contemplate the possibility that the judges-in-charge might have been influenced in case allocation by State actors from outside the judiciary itself. This is a very un-judicial approach that entails entirely refusing to look at the evidence presented in form of the very specific questions I asked, but instead asserting that the judiciary always upholds constitutional principles. No such argument would be tolerated in a respectable court of law.

The Judiciary of Zambia: “The cause-listed matters annexed hereto are those before the Constitutional Court, the High Court General List, the High Court Economic and Financial Crimes Division, clearly indicating the allocation of matters before the courts, which is a preserve of the respective Judges-in-Charge.”

Comment: I never talked about the PF-related cases before all the mentioned courts. I talked about the cases involving Sampa v PF. Lumping the specific four cases I mentioned with a whole cause list of totally unrelated matters represents a clear attempt to conceal the real issues raised and set up the person making the argument as a target for demonisation. There are only FOUR cases involving Sampa vs the PF that are before the High Court and the Constitutional Court in Zambia – with none in the Economic and Financial Crimes Division. I conducted research before publishing my 19 January article and found these same four cases. The cause-listed matters supplied by the judiciary’s own press release does not dispute my findings. Based on this evidence, I asked a simple and straightforward question: why were all these four cases that are before different courts allocated to only Lozi-speaking judges, three of whom were appointed by President Hichilema? Was the allocation a coincidence or it was planned? This is the matter at hand.

Why is the judiciary consciously muddying the waters by throwing to the public a long list of cases before them that have absolutely nothing to do with the PF vs Sampa cases? This manner of arguing is very strange, coming from our arbiters. If this is the quality of our judiciary, then we are in trouble. Instead of reasserting its independence, the body is coming out like it has been compromised by politics and is subservient to the executive. In essence, the judiciary is manufacturing its own evidence to support its cause. In the process, the State institution wants to bury the matter being raised. The question is: what is the judiciary trying to hide? The central issue at hand is a matter that is one of the burning questions in the country today: the executive’s support for one faction in the main opposition party aimed at assassinating our multiparty democracy. Any alert and patriotic Zambian has the responsibility to stop these undemocratic schemes. Thus, when the court cases involving the two factions are all allocated to judges who were mostly appointed by someone who has an interest in the outcome, the public have reason to be suspicious and demand answers. How did these political cases end up with only Lozi-speaking judges or only justices appointed by Hichilema? The problem here is not even the judges who have been allocated these political cases. It is the source of the allocation. Can the judiciary explain how case allocation is done and why all these four cases involving the PF v Sampa ended up before judges of a particular kind?

As I wrote in the article that drew the attention of the Judiciary, I know that case allocation is done by the respective judge-in-charge. What I do not know is whether there is an objective criterion that is followed by the judge-in-charge when allocating cases. For instance, at the High Court, does the judge-in-charge sit with the Chief Justice, who is an ex-officio member of the High Court, every day after 5pm to see what cases have been filed that day and to allocate them to specific judges based on their relative experience, case load, competence, or independence from bias? Or is case allocation conducted by a computer, a lottery or the piki piki na piki doli approach? Or is everything left to the decision of the respective judge-in-charge? Or perhaps case allocation is randomly done by machines with no human agency? Whatever the system it uses, can the judiciary explain how it was possible that the respective judges-in-charge allocated all PF v Sampa cases to only Lozi-speaking judges? Is the number of Lozi judges in the judiciary so high that any case is, on average, likely to end up with a Lozi?

Alternatively, can the State body refer me to or simply publish the rules governing case allocation? If there is no objective criterion for allocating cases, then the judiciary should simply state so and immediately devise a fair system that would guarantee impartiality. I am not interested in cases involving Lungu v the Attorney General, Brian Mundubile v the Speaker, the quarrels between Nakacinda and the DPP, or any other PF member who may have a case against anybody else. I am interested in the four political cases involving Sampa v the PF because this is the matter that Hichilema is using to undermine the principle of separation of powers in Zambia. The conduct of Hichilema, the Speaker of the National Assembly, the acting Register of Societies, and the Inspector General of police in the PF’s factional battles, and the fact that three of the four judges who were allocated these cases are Hichilema appointees and that all four come from a region that is perceived to be favoured in public appointments constitute enough reason for me to be suspicious and demand answers.

The Judiciary of Zambia: “Further, all matters filed in the Constitutional Court are allocated to a single Judge to handle all preliminary issues and to issue orders for directions. Once the matter is ready for hearing, it is cause-listed to be heard by a panel. All matters filed during a vacation, such as the just ended Christmas vacation are handled by the designated vacation Judge, as was the case with Justice Mulife. It is therefore impossible that any matter can be determined by a single Judge, as this is a collegial court.”

Comment: The issue at hand relates to allocation of cases, not their determination. Here, the Judiciary is conceding that before cases are cause-listed to be heard by a panel, they are allocated to a single judge. This is where my interest lies: What system is in place to guide the case allocations to avoid the potential of bias? To illustrate this point. The one who allocates cases filed in the Constitutional Court is the court’s Deputy President. This position is currently occupied by Mweetwa Shilimi, a Tonga speaker who is both a Hichilema appointee and someone who was simultaneously promoted to the role on his appointment over and above experienced justices who have served on the court longer. As well as determining the allocation of cases, Shilimi is also the one responsible for determining the composition of the panel that hears cases. It is reasonable to assume that President Hichilema strategically placed Shilimi in this position as a way of ‘rigging’ case outcomes from the beginning. Allocation of cases is thus very important, demonstrating the need to publicise the system of allocation.

More worrying is that Shilimi is also a close personal friend of the President, a relationship that even attracted the concern of the Parliamentary Select Committee that was appointed to scrutinise his appointment, as revealed in its final report: “With regard to his relationship with the Republican President, the nominee informed the Committee that he personally knew the President as they had attended university and national service together. He, however, explained that his relationship with the President would be immaterial to his decisions as he would not like to compromise his professionalism after many years of practice.” This is easier said than done, especially in matters where his friend in State House may have political interest. What is needed are rules that would prevent judges in Shilimi’s position from taking part in allocating cases in which Hichilema has an interest.

Another example that reinforces the need for publication of the rules that govern case allocations involves High Court justices Situmbeko Chocho and Sililo Siloka, both of whom were appointed by Hichilema and are handling PF v Sampa cases. Social media is awash with pictures of Chocho around the 2021 election in which she is seen expressing support for Hichilema. Anyone can be forgiven for thinking that Chocho may not be impartial in political matters where Hichilema has demonstrated clear interest by way of showing preference to working with members of one PF faction over the other. The same can be said of Siloka, whose CV shows that he once worked for Lukona Chambers, the law firm belonging to Nellie Mutti, the Speaker of the National Assembly who not only has ties to the ruling party but has also, like Hichilema, shown bias towards the Sampa faction of the PF.

If the provisions of the Judicial Code of Conduct were strictly enforced, the High Court judge-in-charge of the general list should not have allocated the PF v Sampa cases to Chocho or Siloka, since their impartiality might reasonably be questioned. Sections 6 (2a) of the Code provides that “A judicial officer shall not adjudicate or take part in any consideration or discussion of any proceedings in which the officer’s impartiality might reasonably be questioned on the grounds that the officer has a personal bias or prejudice concerning a party or a party’s legal practitioner or personal knowl­edge of the facts concerning the proceedings”. And since the issue of bias is one of perception, can a reasonable person, given these outlined facts, conclude that the cases before the duo will be heard and decided fairly? The answer is no. If Chocho or Siloka finds in Sampa’s favour, they may be perceived as having decided the matter in the interest of a third party they once supported or worked for. If either of them found in the PF’s favour, they may be perceived as having decided the matter in the interest of the main opposition party as a way of proving that they are not influenced by personal, political or any other interest outside that provided by law.

Of course, both Chocho and Siloka could have also recused themselves from adjudicating on the political cases in the interest of safeguarding the integrity and impartiality of the judiciary. The fact that they have not done so demonstrates their little regard for the Code or that they have greater incentive to violate it. All this emphasises the urgent need for publication of the rules governing case allocation so that we may learn how the cases were allocated in such a way that they all ended up before the Lozi-speaking judges. The decision by the judiciary to focus on case determination when all I did was to raise questions on how cases are allocated amounts to creating a strawman to divert attention from the central issue: how did the four specific cases involving Sampa v the PF all end up before judges from one region and predominantly Hichilema’s appointees – regardless of which court they were filed in? If I was to pronounce myself on any aspect to do with the determination of the cases, it would merely be to appeal to the presiding judges to attach a degree of urgency to these matters. This is because any undue delays in determining the PF v Sampa cases will keep the main opposition party in a state of paralysis, a situation that only serves to benefit Hichilema and the ruling party. Thanks to the executive’s manipulation of the Registrar of Societies, Sampa’s faction now enjoys formal recognition but holds no grip on the PF’s base and most of its MPs. The opposing faction enjoys the support of both constituencies but has no formal papers to back its claims of party ownership.

There is urgent need for the judiciary to earn its claims of independence and impartiality through demonstratable actions and positive feedback from the public, the consumers of its services. As the adage goes, justice must not only be done but be seen to be done. Merely insisting that the judiciary is impartial and committed to the rule of law is as hollow as President Hichilema’s claims that he has delivered even when people are starving and dying from preventable diseases like cholera. Impartiality is not determined by a single act but the conduct of the judiciary from the moment a matter is filed in court. In other words, when one goes to court, they set the judicial process in motion. The manner of allocating a case is part of the process. Invariably, when the process is tainted, it affects the outcome of the case. If the judge-in-charge cooks the allocation, they have, in effect, cooked the outcome. The alarm I sounded was not about how the case will be decided or the qualifications or competence of the judges to which the cases have been assigned, but the way the cases are being allocated. None of what the judiciary has said in their response indicates that there is impartiality in the allocation of cases. They do not even disclose how cases are allocated. The impartiality of the judiciary is reflected by the collective conduct of the judicial officers, not through declarative statements.

The Judiciary of Zambia: “We encourage citizens to engage in constructive dialogue and discourse, and to express their concerns through appropriate channels, in order to maintain and enhance the strength and credibility of the justice system.”

Comment: Here, we see the breath-taking hypocrisy of the judiciary. How can the judges call citizens to a meaningful engagement when they have failed to demonstrate the same spirit in the very statement in which they issued the call? My observations about the Lozi judges, three of whom were appointed by Hichilema, in the specific cases I cited are factually correct and relevant: the judiciary needs to explain how the cases were allocated to them. Constructive dialogue requires content-based discussion premised on facts and clear identification of the issues at hand. It is impossible to foster understanding and achieve consensus if one party to the debate only reads the title of a submitted piece of evidence and rushes to deliver verdict about the other party. The judiciary’s response, which did not make any reference whatsoever to a single statute or legal document, is not a refutation of the charge of cherry picking of judges, based on the questions I posed, but is instead a threatening stonewall denial. Rather than allaying fears concerning the cherry picking of judges, such a response must instead aggravate suspicions and fears that something funny is going on. It certainly does not give us any confidence that the judiciary can provide any bastion against the slide into dictatorship. Instead of a judicial response, I got a dictatorial answer. The statement is not referring to what was raised. If it was taken to a court, it would be thrown out as irrelevant to the matter in contest.

Also revealed in this paragraph is the judiciary’s attitude towards free speech. The idea that criticism of the judiciary should be conveyed through “appropriate channels” suggests that the exercise of free speech is subject to the use of particular outlets. What are these appropriate channels? Who decides them? Like the whole press release, this paragraph lacks grounding in any logical and known way of presenting arguments, especially those coming from an institution whose officers should ordinarily be imbued with a minimum level of rationality. Article 20 (1) of Zambia’s constitution, on the protection of freedom of expression, provides that “Except with his own consent, no person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to impart and communicate ideas and information without interference, whether the communication be to the public generally or to any person or class of persons, and freedom from interference with his correspondence.”

Any judiciary that is genuinely dedicated to upholding the constitution and fundamental human rights must recognise that long gone are the days when the undemocratic leader could block any individual from expressing themselves and when newspaper editors exercised greater control over ‘news’ content. In today’s world, the judiciary needs to protect my right to express myself on TikTok, X, Facebook, YouTube, and any other platforms through which we humans communicate. The right to free speech is not limited to undefined ‘appropriate channels.’ I conducted my research and have the right to demand answers, using any platform, arising from the facts that I discovered. No one has the right to decide where and how I should express myself. No one. Not even the judiciary. Rather than questioning the means through which free speech is exercised, the judiciary should only wait to adjudicate when institutions and individuals are injured by the exercise of this freedom by anyone.

The Judiciary of Zambia: “We remain resolute in our dedication to upholding the constitution and ensuring that the rights of every individual are protected.”

Comment: This is sloganeering most associated with trade unions. The job of the judiciary is not to deliver propaganda of this kind; it is to dispense justice. Upholding the constitution or the rights of individuals is an everyday thing that should be proved in practice, not through slogans. Such is the hypocrisy of the judiciary that in this paragraph, the institution is proclaiming its impartiality and that it exists to protect the rights of every individual, while in the next it is violating my right to be heard by effectively presenting me as among those who issue “careless and baseless statements” that “undermine the judiciary…jeopardize the integrity of the legal system and have a direct effect on investor confidence.”

The Judiciary of Zambia: “It is crucial to remind the public that careless and baseless statements undermining the Judiciary not only jeopardize the integrity of the legal system but also have a direct effect on investor confidence.

Kalumba Chisambisha-Slavin

DEPUTY DIRECTOR CORPORATE COMMUNICATION

www.judiciaryzambia.com

kâ[email protected]”

Comment: It is this concluding paragraph that is most outlandish for two main reasons.

First, how can a person who is seeking to restore the integrity of the legal system be accused of ‘undermining the Judiciary’? The claim that criticism of judicial actions will ‘have a direct effect on investor confidence’ implies that any evidence of lack of integrity in the judicial system should be concealed from investors lest they desist from investing in the country. As a critic, I am not in the least concerned with protecting investors from any knowledge of corruption, but rather with protecting Zambians from corruption in government which is all to the detriment of the welfare of the people.

Second, since they have not answered how those Lozi-speaking judges and Hichilema appointees were allocated the cases involving Sampa v the PF, how did the judiciary reach the verdict that my questions were baseless and careless? Which trial found my submissions to be without foundation? Who sat to hear and assess the quality of evidence that was provided before deciding the matter in favour of the judiciary? Why is the judiciary making conclusions without due process? I am genuinely aggrieved that the “The Judiciary of Zambia” is tarnishing my reputation and insulting my integrity by questioning my capacity to decide what is careless and baseless. Now, since the “The Judiciary of Zambia” has already pronounced itself on this matter, where do I go to get justice?

There are several psychological elements of the judiciary’s unevidenced characterisation of my questions as ‘baseless and careless statements’. The first is to delegitimise me as a practising public intellectual. This is what the mob of Hichilema’s supporters in civil society and academia has been attempting to do since I turned my shield of criticism to the governance pitfalls of his administration. For this pack, debating by way of attacking the critic’s thoughts and demonstrating the weaknesses inherent in them is the least of its objectives. Its members are far more interested in discrediting me and rubbishing much of what I say so that no one, going forward, pays attention to my substantive criticism of Hichilema’s decisions, leadership, and administration. The style this group uses is to deliberately distort or misread what I say, to attack my person rather than my thoughts, or to boldly accuse me of making unsubstantiated statements without demonstrating how. Such is its enthusiastic support for the regime that several members of this group are even ruining their professional reputation.

By unfairly characterising my views in the manner it did, the judiciary has, wittingly or unwittingly, joined this mob in working to undermine my credibility as a source of political analysis on Zambian affairs. Shortly after the release of the press statement, several members of this mob were indiscriminately circulating it, some with some perverted additions of their own. The second element is to encourage the police to treat me as a person who is purposely ‘jeopardizing the integrity of the legal system’ and, by extension, an enemy of the State. This position by the judiciary puts the critic in the position of being open to a charge of sedition or economic sabotage, and therefore amounts to an implicit judicial threat against critics to keep their mouths shut or face the consequences. Since the judiciary has already pronounced me guilty of ‘careless and baseless statements’, the police have been given free rein to arrest me at the earliest available opportunity. The judiciary’s statement also puts me in harm’s way including by way of political violence especially in a society where many have been encouraged to believe that criticism of State institutions or the government is not only wrong but should also attract punishment.

Let me end by reiterating that the matter at hand relates to how all the Sampa v PF cases ended up before a quartet of Lozi judges. Can the judiciary demonstrate the impartiality and commitment to the rule of law that led them to allocate the cases to only justices from one ethnic group? All I am asking is for the judiciary to provide the evidence showing that the method that was used to allocate the PF v Sampa cases is fair and insulated from political or external considerations. We have an executive that is destroying institutions of the State and our multiparty system to enable Hichilema, who has vested interests in the outcome of these cases, to entrench himself in power amidst increasing despondency from citizens arising from the cost-of-living crisis. At a political level, there is legitimate suspicion that the executive will do the same to the judiciary, which does not exist outside this wider context. All sane and patriotic Zambians must therefore be extremely alert to how the judiciary now behaves in politically sensitive matters before it, especially those that have a huge bearing on the fate of our democracy. The first responsibility of the judiciary is to produce the objective criteria by which they chose the four Lozi-speaking judges. Can they please do so? That is all I am asking.