Winning court cases with govt’s help

COMMENT - The editor could have added the case of Fred M'membe, where the judge 'disappeared', forcing him to spend a weekend in jail instead of being bailed.

Winning court cases with govt’s help
By The Post
Mon 06 Sep. 2010, 04:00 CAT

THERE’S an increasing number of statements from senior government and ruling MMD officials suggesting that they exert undue influence on the judiciary.
This is a very worrying development that should not be taken lightly.

MMD national chairman and lands deputy minister Michael Mabenga has joined the list of those who are bragging about things they should be ashamed of.

A self-respecting government in a democracy would not say anything that undermines the integrity of the judiciary whatever the perceived benefits might be. But this is exactly what Mabenga did the other day when he declared that “people like Ng’andu Magande could not have won elections in Chilanga without the help from government. Magande had won through a court ruling”.

The words spoken by Mabenga require no interpretation. What he said is very clear. But the import is very worrying. Mabenga is not scared to take a public platform and tell the nation that Magande could not have won his election petition in our courts of law without the help of government.

That statement raises the obvious question: what help did government give Magande without which he would not have won the election petition?

Our people have not forgotten that the decision in the Magande election petition took long and seemed to have had some twists and turns.

In that regard, could Mabenga be telling us something that he really ought not to? We ask this because it seems Mabenga is saying that government played an unspecified role in ensuring that Magande won the election petition.

In the context of the many concerns that our people have about the way that our governments seem to get favourable decisions in highly contested matters, Mabenga’s statement is reckless and dangerous. But probably we shouldn’t condemn Mabenga’s statement because the man may be telling the nation some uncomfortable truth.

Mabenga is confirming the fears that many of our people have regarding the way our judiciary operates in relation to those in power. At least from what Mabenga says, it is clear that our government interferes with the judiciary. And Mabenga seems to be sure that Magande would not have won the election petition regarding the Chilanga parliamentary seat without government influence.

It still leaves the question: how did government ensure that Magande won the petition? Was it by creating false evidence or indeed was it by ensuring that the decision of the judge was favourable to those in power? We are asking all these questions because Mabenga says Magande didn’t win that election; he only won it through a court ruling with the help of government.

In a word, what Mabenga is telling us is that there’s an election fraud here that has been sustained through our court system. The fact that this was possible then would suggest that it’s even more possible now. This is what must concern every citizen. Courts exist to make decisions according to the law regardless of the identity of the people involved.

But Mabenga is not the only one who has told the nation that somehow the government has undue influence on the outcome of certain cases. Our people have not forgotten that while the decision in the case involving Frederick Chiluba was still being read in our courts, Rupiah was busy asking the nation, in a way that suggested he knew the outcome, to accept the decision. How did Rupiah know that Chiluba was going to be acquitted?

It was very clear from comments that followed from people like Mike Mulongoti that the government had ensured that the Chiluba decision went in a particular way. This position was also strengthened by their decision to withdraw an appeal that had been legitimately filed against Chiluba’s acquittal.

And Rupiah himself went on to make it clear that he had decided not to appeal Chiluba’s acquittal. This was against the background that such a decision could only be made by the Director of Public Prosecutions. What this demonstrates is that having ensured that Chiluba was acquitted, Rupiah made sure that the matter was removed from the courts.

This also, in some way, ties up with the recent decision by the High Court not to register the London High Court judgment so that it could be enforced against Chiluba and recover for the Zambian people more than US$ 46 million that he and his tandem of thieves had stolen from government.

Again, although the decision of the High Court was clearly wrong, Rupiah ensured that it was not appealed, in total disregard of all the serious ramifications that the decision was going to have.

These comments by people like Mabenga, Rupiah and even Mulongoti do nothing to enhance democracy and the rule of law. If anything, they are a danger to the peace and stability of our country. We say this because conflict is a natural part of any society.

By this we mean to say that every nation at one time or another has to deal with competing interests and the conflict that arises from that.

The organs of the state exist to ensure that those competing interests or conflicts that arise are settled in a manner that is consistent with civilised co-existence in accordance with the rule of law. The courts are a very important organ of the state.

They are supposed to ensure that all conflicts that cannot be resolved by consent through dialogue or some other methods are settled in a civilised manner.

By this we mean that the courts come in and examine the issue and decide according to the established principles and norms enshrined in our laws. What is even more important than the decision that the court makes is the assumption that the parties to the dispute are going to accept the determination that the court makes.

But the acceptance of the court’s determination is based on the belief that the court makes its decision solely on the basis of the facts before it and the law applicable.

This assumption crumbles when people get the impression that one of the parties to a matter that is before a court has an unfair advantage by being in a position to exert undue influence on the court.

When this happens, people lose confidence in the decisions of the courts, and society is then in danger of disintegrating because everybody decides to be their own judges – they take the law into their own hands. And when this happens, both the law and the rule of law, that is democracy itself, are threatened.

The comment by Mabenga feeds directly into a notion that is widely held by many of our people. We may choose to remain quiet about it and pretend all is well, the courts' decisions have been accepted without question, but that will not help anyone.

This is why our courts have to do more to demonstrate to our people that the decisions they make, particularly in politically sensitive cases, are based on nothing else but the law.

When the courts begin to make decisions that are contradictory even on the surface, then we have a problem. Let us look at what has happened with judge Evans Hamaundu’s decision in the Chiluba case and superimpose that with Mabenga’s comments. Judge Hamaundu made a decision that ignored his own earlier decision.

Mabenga comes in and basically brags that the government is able to make people who should lose their cases win them. When we look at these two instances, and to that add the highly questionable acquittal of Chiluba by magistrate Jones Chinyama, we see a worrying trend that should not be ignored. The fact that it is unpalatable should not be used to sweep this problem under the carpet.

If the judiciary is perceived as a subservient extension of the executive, it will not be long before anarchy breaks out in our country. Everything possible needs to be done to ensure that our people retain confidence in our courts' ability to deliberate and determine matters freely and fairly without the government’s direct or indirect undue influence.

Anything short of this will render our judiciary moribund and of no use to our society. What Mabenga has said should cause the judiciary to pause and reflect on its relationship with those in power, those occupying State House.