Hamaundu’s decision is wrong

Hamaundu’s decision is wrong
By The Post
Sun 22 Aug. 2010, 04:00 CAT

It requires little legal knowledge – if a little is all one has – to realise that there is something very wrong with judge Evans Hamaundu’s refusal to register the London High Court judgment that was obtained by the Zambian government against Frederick Chiluba and his tandem of shameless thieves.

As we have said before, we do not consider ourselves legal experts. But we know a little law and are also being helped by the many experts who have now commented on this matter. We are worried that the issues that these big legal experts are raising are so basic that it is difficult to see how an experienced judge could fall into such error – or it isn’t an error but something else!

When one goes to law school, there are basic things that you are taught. One of the important issues is how law is formulated through various methods – the legal process. One of those basic things that you are taught is that our legal process is founded on the basis of respect for judicial precedent. Another fundamental point which is emphasised to illustrate the importance of judicial precedent is the fact that by setting precedents, judges make law. In other words, the process of making judicial precedents is part of the law making process. This concept is so important that no lawyer, judge or any other legal practitioner for that matter would be of any use to society without this function. If there were no precedents the law would be uncertain, inconsistent, arbitrary and its practice impossible.

These are things that lawyers usually don’t talk about in court because they are considered too basic; they are a given. As lawyers like to say, they are trite. This is why judge Hamaundu’s conduct in the Chiluba matter is very worrying. He allowed himself to destroy the very foundation of his jurisdiction or put another way, he destroyed the principle that allows him to make decisions. We are not the ones accusing judge Hamaundu of this grave mischief.

The Law Association of Zambia, among others, is calling for attention to this mischief. In their opinion, which has been made public, the law association has told the nation that judge Hamaundu went against the principle of stare decisis. This is a very big sounding phrase but what it means is very simple. All one needs to do is go on the internet and will find that it is well explained. We are told that stare decisis is a legal principle by which judges are obliged to respect the precedents established by prior decisions.

We are also told that the words originate from the Latin phrase stare decisis et non quieta movere, meaning that “stand by decisions and do not disturb the undisturbed”. To lawyers this means that courts should abide by precedents and not disturb settled matters. This helps to ensure that the law and its practice is predictable and capable of being learnt and applied to various situations. Those who have learnt this principle would also have been taught that the doctrine is not stare dictis, meaning the principle is not to stand by or keep what was said nor is the doctrine about standing by the reason for the decision. The doctrine simply says stand by the decision. This is the principle of stare decisis as it is taught.

Applying that to judge Hamaundu, we would have to say that he was bound by his decision in the case of Reefcor Limited versus Les Generals Des Carriers Et Des Mines Exploitation Gecamines (2002/HK/526). The principle of stare decisis stops him from ignoring previous decisions, let alone his own decision. But this is what judge Hamaundu has done.

Transparency International in their statement made this same point quite eloquently. They said: “What we find more intriguing is that he fails to refer to his own judgment in Reefcor Limited v. Les Generals Des Carriers Et Des Mines Exploitation Gecamines (High Court for Zambia, Kitwe District, (11 June 2007) (2002/HK/526) where he allowed for direct registration, a judgment rendered by the High Court of South Africa despite the respondent arguing that South Africa is not one of Her Britannic Majesty’s dominions, neither is it a British protectorate nor a mandated territory and that it does not have a reciprocal agreement with Zambia and did not fall under the Foreign Judgment (Reciprocal Enforcement) Act Chapter 76 of the Laws of Zambia.

Judge Hamaundu after observing that no proof was rendered in court to show that South Africa had not been added to a list of countries covered by the Foreign Judgment (Reciprocal Enforcement) Act, held: “assuming that South Africa is not one of the scheduled countries, I wish to cite the case of Mileta Pakou and Others v. Rudnap Zambia Limited (1998) ZR 233”.

“He applied the following passage from the Supreme Court Judgment in Mileta Pakou: –“The law which applies in Zambia in default of any statute is the common law of England. At Common Law, the judgment of any competent foreign court for a sum certain is enforceable as a simple debt on the basis of an implied obligation, which arises on the part of the judgment debtor. However, the foreign court must have had the necessary jurisdiction.” The Judge then dismissed the application to set aside the Registration. Essentially, the Judge sanctioned the direct registration under CAP 76, of the Judgment on the basis of Common Law. As TIZ, we are baffled that judge Hamaundu elected not to be bound by his own precedent.”

The question that arises is whether judge Hamaundu’s decision or action was a product of oversight or was it deliberate, something that he actually thought about? Was it unconscious or conscious? We say this because this act by the judge, in such a serious case is too important to be glossed over; it has created a series of problems, in a word, it has created veritable chaos in the nation.

We have taken some time to read and try to understand what all the legal brains around us are saying about judge Hamaundu’s decision. We are surprised that judge Hamaundu has decided that judgments from the United Kingdom cannot be directly registered in Zambia. He says this is because there is no enabling legislation, or to try and put it as he put it himself, there is no order to that effect that was made by the Governor of the then Northern Rhodesia or the President of the Republic of Zambia, as we are now known.

What judge Hamaundu is saying is that in 1959 or there about, when the law that we now use to register foreign judgments was enacted, British judgments could not be registered in its own colony of Northern Rhodesia. How possible is it that the United Kingdom would enact laws that stopped judgements from its courts, from being registered in one of its colonies? Lawyers would say that with the greatest respect to the judge his interpretation of the law is wrong and absurd.

These are the things that we are seeing in the decision of our courts. Things that are supposed to be straightforward and well-settled are being confused for reasons that are not clear. A judge of the seniority of justice Hamaundu cannot fail to apply a basic principle such as stare decisis involving a case which he himself had not very long ago decided. And this is what is raising a lot of questions as to whether or not this was an oversight, a mistake or a deliberate act arising from undue influence or unnecessary considerations. Others may wonder whether this was a product of incompetence. Incompetence is difficult to justify given the quality of reasoning. The reasoning that judge Hamaundu employs is not the reasoning of an incompetent person. If anything, he seems to get right up to the door but decides to hit himself against the wall. His reasoning clearly showed him that Chiluba’s judgment is registerable but he chose not to register it. The question is why?

The other thing that is raising a lot of questions is why his clearly wrong decision is being defended by those who were seeking to register that judgment and others connected to the judiciary and the executive – people who should know better that his decision is wrong. No amount of pontification can turn this wrong decision into a right one. As Jimmy Cliff once said in a reggae rhythm, “…you can’t be wrong and get it right…” at the same time.