By Staff Reporter
Law Professor Muna Ndulo has warned President Edgar Lungu that his threats to hold on to power regardless of court rulings amounts to treason.
Commenting on President Lungu’s threats on judges at the Constitutional Court, the United States-based law Professor said such a statement violated the oath of office President Lungu subscribed to.
On Thursday last week upon arrival at Solwezi airport, President Lungu threatened judges against disqualifying him to contest the 2021 general election, maintaining his earlier position that he was available for the top post as long as his party adopted him.
President Lungu who claimed to have information that some judges wanted to be adventurous to imitate the Kenyan Supreme Court judges that nullified the election of Uhuru Kenyatta for irregularities and ordered a fresh election, further warned that there would be chaos if the Constitutional Court disqualified him.
But Prof Ndulo expressed disappointment with President Lungu’s utterances especially that he was a lawyer.
“For the avoidance of doubt, threats to hold on to power regardless of the Constitution and court rulings border on a conspiracy to commit treason. It violates the oaths of office subscribed to by all public office holders in Zambia including the President. Indeed, treasonable conduct, has always included unconstitutional retention of power,” he said in a statement today.
“The African Charter on Democracy, Elections and Governance (ACDEG) adopted by the African Union (AU) in 2007 to promote democracy, rule of law and basic human rights declares in article 5 that ‘state parties shall take all appropriate measures to ensure constitutional rule, particularly constitutional transfer of power’. It defines unconstitutional change of Government in article 3 as; ‘(a) any refusal by an incumbent government to relinquish power to the winning party or candidate after free, fair and regular elections; or (b) any amendment or revision of the constitution or legal instruments which is an infringement on the principles of democratic change of government.’ In most countries, the Minister of Justice would have sprung to the defense of the judiciary. Members of the judiciary are not members of the Parliament and cannot therefore defend themselves in Parliament. Judicial ethics do not allow them to speak to the press about judicial matters. Representing them in Parliament is the task of the Minister of Justice.”
And Prof Ndulo stated that President Lungu’s attack was another frontier in his creeping dictatorship.
“I write to support the position of Elias Chipimo and the Law Association of Zambia in their condemnation of President Lungu’s irresponsible attacks on the judiciary. This attack, I dare say, is yet another frontier in the creeping dictatorship and arrogance of power by the President in Zambia. This is an epic depiction unbridled ambition for power – reminiscent of the Shakespearean depiction of such characters as Macbeth who are ready to destroy even what they have the constitutional duty to protect so long it helps their appropriation of state powers. The attack on the judiciary is irresponsible and for a lawyer, it is inconceivable to do so,” he stated.
“Hence, it is my view that this is a deliberate attempt to further undermine the essential foundations of the rule of law and justice in Zambia. It is particularly puzzling and indeed puerile that a lawyer could equate party regulations for standing for party presidency with constitutional provisions that govern the presidency. The first is governed by a party document and the other by the grundnorm of the state –the Constitution. It is rather elementary even for those with basic knowledge of civics that “The principle of the separation of powers is the bedrock upon which the requirement of judicial independence and impartiality are founded” (International Commission of Jurists, 2004).”
He stated that the judiciary was not a junior partner in the machinery of state because it had full plenitude of powers under the constitution and other statutes to carry out its duties in a democratic society.
Prof Ndulo stated that it was therefore wrong for President Lungu to treat the judiciary as an institution inferior to other arms of government.
“Its powers are imprescriptible to the extent that they are prescribed by constitutional provisions. Nothing, even the widest discretionary executive powers can whittle down this independence of the judiciary. It is therefore, sufficiently an erosion of the judicial foundations of democracy for the President to dishonor and make contemptuous threatening remarks about the judiciary. It is the textbook exemplar of dictatorships – first of all kill all the lawyers, second jail all the opposing voices, declare emergencies and in all these co-opt the judiciary or send the judges to Auschwitz. Does it sound familiar with the catastrophes of dictatorships we have seen before?” he asked.
He stated that President Lungu’s attacks on the judiciary could not be blamed on a lack of education because the head of State was adequately educated.
Prof Ndulo attributed President Lungu’s conduct to poor acquisition of skills to view things rationally.
“Now, was it perhaps the failure of the legal education institutions that have led to this? I doubt. Education is the development of an entire person. It is the acquisition of skills to view things rationally and with reason, to conduct oneself with civility and integrity and to navigate the world through a knowledge-based lens,” he stated.
“If education was to blame many of us would be complicit having served as law educators for decades. It is then that I reminded myself of the words of Lord Acton, ‘That power corrupts and absolute power corrupts absolutely.’”
Prof Ndulo stated that President Lungu had previously practiced hipocrisy by claiming that the judiciary was independent only when it ruled in his favour.
He reminded president Lungu about reforms in the Kenyan judiciary which had led to landmark judgments.
“President Lungu betrays the judiciary when he implies that the judiciary is independent only when its rulings favour him or the government. He confirmed this by his warning to the judiciary “not to follow Kenya.” This is sheer hubris. His remarks are not only ill-conceived and ignorant but simplistic because they focus on the result and do not seek to understand the jurisprudence of the Kenyan decision and do not enlighten us as to what in his view is wrong legally with the Kenya Supreme Court decision,” he stated.
“Additionally, his understanding of Kenya’s history is at best selective for it is the same Kenyan Supreme Court, and the same Kenyan judges, that decided for Kenyatta in the 2013 election petition. The emergence of a strong and independent judiciary in Kenya is rooted in its history and willingness to learn from the past. The absence of an independent judiciary was a critical factor in Kenya’s degeneration into bloody, post-election violence after the December 2007 general elections. That episode taught the Kenyans the importance of an independent judiciary.”
And Prof Ndulo has warned President Lungu’s blind supporters that he would soon turn on them.
“As for the Presidents surrogates who immediately went into top gear to attack in the most degenerate manner anybody who criticized Lungu over his remarks, it is best to ignore them. They should learn the lessons of history; because it is not unusual for those who fete the tiger to become the tiger’s ultimate feast. These supporters are too blinded by the allure of primordial prejudices to see the grievous harm being done to democracy in Zambia today,” Prof Ndulo stated.
“Nothing else can explain the cant and cascading absurdities being mobilised by these hirelings in support of Lungu’s attack on the Judiciary. I do not know how anyone with average intelligence can interpret what President Lungu said as meaning anything other than threats and intimidation against the Judiciary. One would have thought that it is better to admit wrongdoing or keep quite than to talk and so reveal your mediocrity and grossly shallow understanding of the issues at hand.”
Meanwhile, Prof Ndulo has accused current Speaker of the National assembly Dr Patricvk Matibini of abandoning his respect for law and constitutionalism despite being a lawyer.
“The current speaker of Parliament – though a lawyer has abandoned all pretense to respect for the law and constitutionalism for political opportunism – is unable to guide the Minister. His behaviour eloquently proves the point made by Alexander Hamilton, one of the most prominent of the founders of the US constitution, concerning the supremacy of the US constitution. Among other things Hamilton said: “To avoid an arbitrary discretion in the courts (I would add Speakers of Parliaments), it is indispensable that they should be bound down by strict rules and precedents…..These must demand long and laborious study, to acquire a competent knowledge of them. Hence it is that there can be but few men in the society, who will have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge’,” stated Prof Ndulo.
“The speaker does not possess the requisite integrity and requisite knowledge. He seems to fit into the category of those representatives who can destroy democracy through their obeisance and subservience to the executive. I hope Parliamentarians recognize the duty incumbent on them to preserve democracy for the people. The clear abdication of duty seems to have bloated the hubris being orchestrated by the President.”