Maravi

Hamaundu has turned judicial decision making on its head

Hamaundu has turned judicial decision making on its head
By The Editor
Thu 19 Aug. 2010, 04:00 CAT

If anyone starts a process in which key institutions of the state begin to be undermined and their prestige and influence destroyed, that process is very negative.

If you undermine or destroy the prestige of the state institutions, the consequences are terrible. What people are saying about our state institutions today is not just a matter of analysis or criticism of decisions, but of the destruction and negation of all the values, merits and history of our state institutions. When a country is destroyed, the first things to go are state institutions.

When these fail, everything fails. And sometimes people who initiate the destruction of state institutions and the eventual collapse of a country may not have envisaged or conceived the level of their destruction. In many cases, such destruction may not have been their intention. But all this is usually a result of enormous mistakes, of failing to foresee the consequences of what they are doing and of not doing the right thing to reach the goals and purposes they proclaim – which, of course, sometimes may be necessary and legitimate.

The consequences of undermining and destroying state institutions are too ghastly to contemplate. If you undermine and destroy state institutions, then, unfortunately, when difficult times come, the people do not have any institutions to turn to. This is why every effort needs to be made to protect and retain the institutions of the state.

There is a tendency for society to make itself believe that all is well and forget to retain a critical mind as it looks at the affairs of the nation.

Those who raise criticism are viewed suspiciously and sometimes maligned as disgruntled elements, cynics, rabble-rousers with nothing better to do. Truly, communities and societies are not built by disgruntled elements, by cynics. But there is need to distinguish between legitimate criticism and cynicism. If every criticism is seen as cynicism, then there is a problem, then we are headed for disaster. This is something that we need to guard against. We cannot allow a situation where all criticism is dismissed as cynicism. But this is something that we see many of our people who are in positions of authority trying to do. They are not prepared to be criticised when they perform a public function. And to most of them, criticism is equivalent to enmity, to a biblical curse.

We must make every effort to ensure that we remain vigilant and are quick to raise the alarm when things are not going right. This is more important when those things which are not going right have to do with institutions of the state. We all have a duty to ensure that every institution that is created to serve public good is preserved for our common benefit. Indeed, every generation has an inescapable duty to preserve state institutions for the benefit of the succeeding generation. It is only irresponsible people that do not care about the next generation. Government of and by the people means that the citizens of a democratic society share in its benefits and in its burdens. By accepting the task of self-government, one generation seeks to preserve the hard-won legacy of individual freedom, human rights and the rule of law for the next. In each society and each generation, the people must perform the work of democracy anew – taking the principles of the past and applying them to the practices of a new age and a changing society. Indeed, when we look at an area such as the practice of the law, we all continue to benefit from the wisdom and decisions of people who lived many, many years ago but passed to us a legacy of their thinking and understanding which we today use to organise our legal affairs.

Indeed, to ensure that we remain self-critical and well served by the institutions of the state, we have many organisations that have been created for the purpose of helping society in this way. These are also institutions that need to be safeguarded and helped to play their role in the most beneficial way. And democracies make several assumptions about human nature.

One is that, given the chance, people are generally capable of governing themselves in a manner that is fair and free. Another is that any society comprises a great diversity of interests and individuals who deserve to have their voices heard and their views respected. The voices of democracy include those of the government, its political supporters and opposition, of course.

But they are joined by the voices of organised interest groups, professional associations, labour unions, community associations, the news media, scholars and critics, religious leaders and writers, churches and schools and so on and so forth. All these groups are free to raise their voices and participate in the democratic political process. In this way, democratic politics acts as a filter through which the vocal demands of a diverse populace pass on the way to becoming public policy.

In this regard, the Law Association of Zambia is a very important professional body. In many ways, it is unique in that its functions are cross cutting. It is the one body that our people legitimately expect to knowledgeably comment and give practical guidance on every legal matter of a public interest nature regardless of the subject. In that way, they should be available to discuss science or economics, politics or religion, sports or arts, as long as the context is legal. This therefore makes the Law Association of Zambia a very important institution indeed.

Admittedly, over the years, this fraternity of lawyers has made very significant contributions to the development of our democracy. But we must be quick to add that its best contributions have been when it has acted decisively without timidity in safeguarding public interest. Lawyers, by their training, are quick to analyse the implications of many public policy issues. But that analysis is useless it is not followed up by quick public action. And this is where bravery and boldness is required. And it’s not by accident that some of the world’s best revolutionaries and statesmen are lawyers – Nelson Mandela, Oliver Tambo, Fidel Castro, Bill Clinton, Tony Blair. And even Lenin was a lawyer. And today, the first black President of the United States, Barack Obama, is a lawyer.

What are we saying? Lawyers have an important duty to society. In many ways, they are oracles that must keep society on a straight path. This is something that the Law Association of Zambia needs to reflect on very carefully. We say this because we constantly get a troubling feeling that the Law Association of Zambia is somehow trying to shy away from its responsibility. We seem to have a law association today which is too nuanced to be clearly understood when it takes a position on anything. We have an association that seems to specialise on doublespeak, on eating with two hands and trying to be in good terms with everybody, especially those who wield political power. Whatever they say can mean this or that, therefore not helping to guide anyone. And this is exactly what opportunism is. An opportunist, by his very nature, will always evade taking a clear and decisive stand. He will always seek a middle course, he will always wriggle like a snake between two mutually exclusive points of view and try to “agree” with both and reduce his differences of opinion to petty and pious issues that can easily be compromised upon and so on and so forth.

But a law association that operates on this line is of no use to anyone. We are saying what we are saying because this association is too important to our country to be allowed to drift along aimlessly. If the law association had behaved the way it is behaving today, it couldn’t have made a contribution to the peaceful transition of power in 1991. Indeed, the law association of today could not have played a pivotal role that the law association of 2001 played to stop Frederick Chiluba’s attempt to massacre the Constitution in order to allow himself an illegitimate third term of office. The Law Association of Zambia, in those instances, took very clear uncompromising stances in favour of the masses of our people. This does not seem to be the case today. It seems that the law association is more comfortable when it is championing the causes of the powerful. This is why they seem more comfortable to make comments that seem to favour erring officials at the helm of our state institutions. We should be quick to acknowledge that in one instance, at least, this law association took a progressive position. In relation to the unjustifiable acquittal of Chiluba, the law association found the Director of Public Prosecutions wanting in his conduct and demanded his resignation. But after that, this law association seems to have gone to sleep and is not at the forefront of championing the causes of our people. It has even failed to continue or sustain its demand for the Director of Public Prosecutions to resign.

We all should understand and appreciate the duty of the law association to defend the judiciary from unwarranted attacks. This is a good thing. But when there is a crisis in the judiciary, as seems to be the case now, it is also the duty of the law association to state its position clearly. These are not matters that are going to be dealt with behind closed doors. They are not private problems, these are public problems. And moreover, the law association’s loyalty to the judiciary and those in charge of it, cannot take precedence over its obligations to the people. Obligations to the people take precedence over any commitments to an individual or even an institution – which is after all a creation of the people themselves.

It is important for the law association to champion the causes of the weak and insignificant. An example of the association’s impotence in the current political climate is the public posture that the association has taken on the plight of one of its members – Nsuka Sambo. We have no doubt that a poll of all the members of the law association would show that few, if any, believe that what the Supreme Court did was correct. One of their own members has been subjected to the most unusual and strange administration of justice that this country has ever known. And yet the law association is quiet. Indeed, the only comment attributed to the law association on this matter suggested a support for this unusual form of justice, or rather injustice. An association which won’t stand for its vulnerable member in his hour of need but is quick to defend judges who have a battery of self-defence mechanisms is irrelevant to the democratic needs of our country. And this is what the Law Association of Zambia has been reduced to. Anybody in this country who calls himself a lawyer must be ashamed about what has happened to Sambo, whatever view they take of the matter.

We are waiting to see what position the law association will take on the failure by our judiciary to register Chiluba’s London High Court judgment. We continue to say that we are not experts on law but we know enough to say something. Judge Evans Hamaundu has turned the very foundations of judicial decision making on its head. Anyone who knows anything about the way courts work will agree that precedents of previous decisions are the currency that drives judicial decision making. This honourable judge has even disregarded his own decision in order to allow Chiluba to get away with his loot and keep everything he has stolen from the Zambian people. Judge Hamaundu in the case of Reefcor Limited versus Les Generals Des Carriers Et and Des Mines Exploitation Gecamines, directly registered a South African judgment even though he found that South Africa was not on the list of countries from whom Zambia could ordinarily accept judgments. This was his own decision. And in law, a judge is not permitted to disregard his own decision because this is a recipe for judicial anarchy. But this is exactly what judge Hamaundu has done. What is even more worrying is that he tells us that he has scanned the law and found no basis to register this judgment, obviously he did not look at his own judgment which is part of the law. It would have been better if the judge had at least explained why he disregarded his own judgment.

These are matters that are going to concern our people. What is the law association saying? What is it going to do about this clearly questionable judgment on a matter of such great national importance? Anyway, as the saying goes, the jury is out and our people will make their decision known.

Labels: COURTS, EVANS HAMAUNDA, FREDERICK CHILUBA

posted by MrK @ 5:02 PM