Lessons from Justice Mulenga’s ruling in Dora, Sililo, Mwale case

By E. Munshya wa Munshya

On Tuesday, September 3, Justice Mungeni Siwale Mulenga ruled in the case in which Dora Siliya, Maxwell Mwale and Hastings Sililo sued the Attorney General and the Electoral Commission of Zambia for barring the trio from contesting in the by-elections.

The media outlets have ably reported that the trio has won their case. Justice Mulenga reversed the decision of the Electoral Commission of Zambia and instructed the electoral body not to bar the trio.

A detailed analysis of the issues to do with this case is beyond the space and scope of this article. That being the case, there are a few lessons from this ruling.

The fact that the Judiciary has faced tremendous criticism about its partiality has been very well highlighted in the past few weeks, if not months.

In fact, I have written in this column the need to have a new face at the helm of the Judiciary. It has been my position that the acting Chief Justice Lombe Chibesakunda is very compromised due to the fact that she does not satisfy the requirements of the constitution to be appointed to that position.

She is past retirement age and Parliament has refused to ratify her.

The so-called judicial press statement, she caused to be written, by Terry Musonda has only gone to show just how partisan she is. I will return to this matter later.

Chibesakunda’s majority holding in the case of Mutuna and others v. Attorney General also demonstrates an amount of judicial partiality and political sycophancy on her part.

It seems that the Mutuna case was not decided based on law, but based on other political considerations. Remarkably, Chibesakunda in that case went to state that the Zambian President is the “authority on everything”.

That statement is, for lack of a better term, total nonsense. In a democracy like ours, there should be no place for a judge to hold that the President of Zambia is the authority on everything. This nonsense is more apt for the days more barbaric than ours and for a generation of Kaunda and not this generation of the ThirdRepublic.

All well-meaning Zambians should reject such paternalistic innuendoes.

Additionally, in the face of such brazen judicial confusion prompted by illegally-appointed Chibesakunda, it therefore is exciting to have a judge like Mungeni Siwale Mulenga who sees through the façades and redeems the face of the Judiciary.

It is judges like Mulenga who offer hope to the current Judiciary. In fact, without these judges, the Judiciary would have already turned into a congregation of kangaroo courts presided over, not by kangaroos, but by dinosaurs.

Justice Mulenga took the issue of Terry Musonda’s press statement head on and made it very clear that this statement not only lacked judicial value, but also was wrong to purport to have been issued in the name of the Judiciary.

The statement was void “ab initio”.  She equally took issues with the purported letter authored by the deputy registrar of the High Court of Zambia.

In her own words, Justice Mulenga stated: “I have deliberately placed the word ‘Judiciary’ in inverted commas as it is not apparent on the face of the press statement and the letter which Courts or offices comprised the Judiciary whose opinion was being advanced”.

And then Justice Mulenga goes to make perhaps one of the most profound statements that should serve as good law for the future. She stated that on page J38 of her opinion that, “in the history of the Judiciary in Zambia, there has never been an occasion where the institution has given interpretations of the law through press statements”.

This judgment does seem to highlight some ineptitude on the part of Zambia’s Attorney General. I am of the opinion that looking at his performance and legal analysis, Mumba Malila could perhaps capture the honour of being Zambia’s worst Attorney General.

I just wonder why President Sata had to call him back after his murky performance under the Mwanawasa government. In stating that Malila is inept as Attorney General, this should not be misconstrued to mean that I do not think that he is sharp and intelligent.

In fact, reading through Malila’s academic writings before he became Attorney General you get the feeling that you are reading a modern human rights lawyer who is aware of the consequences of judicial action.

However, this is not reflected at all in his work as Attorney General. One would wonder why the same Malila who was a passionate human rights lawyer would a few years later decide to defend perhaps one of Zambia’s greatest anti-human rights legislation: the Public Order Act.

In the present case of Siliya, Malila does not appear to be forthright. His objective was to have the case dismissed even before a hearing was conducted.

In the preliminary issues he raised, Malila argued that the statements from Terry Musonda, from Priscilla Isaacs and from Wynter Kabimba should be ignored absolutely.

He claimed, that these “were mere statements with no legal force” (p. J20). He does not end there, however, he even goes on to claim that Dora and others could bring him back to court after the by-elections are conducted even without their participation. He seems to want to keep his cake and eat it too.

On one hand, he claims ECZ was right to bar the candidates, and then in the next minute he argues that in fact, whatever statements were issued by Terry Musonda and Priscilla Isaacs did not have legal value. This is a classical case of cognitive dissonance at its best.

And then of course, hilariously, Malila claimed that the ECZ statement and that of Terry Musonda were of a general nature and did not specifically name any of the three applicants: Dora, Maxwell and Hastings.

Here, the learned Attorney General seems to be acting like a bully at ChabanyamaPrimary School who refuses accountability because he had not “named any names”. This was a very lame reason to say the least.

But Justice Mulenga was very vigilant. She ruled against all the three preliminary issues Malila raised. Honestly, it would be futile to only entertain Dora after the ECZ has already had elections in Petauke.

Malila’s behaviour should not be surprising though. Zambia’s worst brain drain has nothing to do with professional Zambians who have migrated to other countries.

The worst brain drain in Zambia happens to well-educated professionals after they acquire political power. As such, you wonder where the legal and human rights brains disappeared to in Malila after he became Attorney General of Zambia.

This judgment has also helped to clarify electoral laws. For example, Justice Mulenga has had to decide on the right standard of proof needed when the High Court is issuing the report about a petition in connection with s.104 of the Electoral Act 2006.

It is clear that according to the case of Lewanika and Others v. Chiluba, the Supreme Court reaffirmed the standard of proof needed in an electoral petition.

The standard of proof is somewhere between the civil standard, the balance of probabilities and the criminal standard of beyond reasonable doubt.

However, when it comes to issuing a report about a corrupt candidate within the meaning of s.104, the standard of proof needed has got to be closer to the one needed in a criminal trial – beyond reasonable doubt.

Justice Mulenga, rightly, rationalises that due to the penal character of the “report” it is important that guaranteed rights are protected and that only those who are morally blameworthy should be barred. The standard that meets these objectives is none other than the standard of beyond reasonable doubt.

Indeed, it would be a great injustice to bar a candidate from voting for five years and from contesting elections for that period only on the basis of the standard of balance of probabilities.

When the consequences of evidence would result in serious impairment of one’s constitution rights, the interests of justice demand that a higher standard of proof be adhered to.

The sanctions envisaged in s.22 and s.104 are “grave and penal hence the need for the requirements to be strictly followed”, she wrote in her opinion.

Additionally, the High Court report is not automatic. According to Justice Mulenga, “the mere fact that the High Court nullifies an election based on corrupt or illegal practice does not in or of itself constitute guilty report of the candidate whose election was nullified.”

To comply with the law, Dora Siliya was going to go back to the courts and have the courts institute proceedings aimed at issuing a report to bar her. But this process should be done in a judicial manner.

For now, it looks like the Electoral Commission does not want to appeal this ruling any further. They have complied and announced September 10 as the nomination dates for Petauke, Malambo and Mulobezi. And in all fairness, let these by-elections be fought before the people and not before the courts of law.

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