Written by Kaela B Mulenga, June 21, 2009
The re-appointment of Dora Siliya (DS) a former Communications and Transport Minister to another Cabinet position, Education, after High Court Judge – Phillip Musonda had quashed the findings of the Dennis-Chirwa Tribunal findings – has outraged many people. People are now beginning to wonder if the president Rupiah B. Banda (RB) is serious about fighting the endemic corruption.
Some people are even complaining that ‘activism’ rampant in our judicial system is actually promoting corruption and other forms of injustices.
Activism in a court or judicial system – is understood to be a situation when one or more magistrates and judges are believed to be vigorously taking part in politics. That is, judges make decisions which are perceived to be favorable to the executive or an administration’s agenda or policies. Therefore, Judge Musonda is regarded as to have acted as an activist judge in Dora Siliya’s case.
This activism debate has raged on in U.S.A. and UK – in US being more noticeable during the confirmation process to the Supreme Court of Clarence Thomas. Even today, President Barack Obama’s Supreme Court nominee, Sonia Sotomayor – is being considered as part of BO’s racial agenda. Conservatives are portraying Sotomayor as a racist for suggesting that – White men don’t always make the best judges and un-American for simply using a Spanish pronunciation of her name.
Activism pops up anytime a society is faced with a choice between two or more competing alternatives – or when a paradigm shift is about to occur. During the civil rights movement – apart from civil rights, other issues such as: gender equality; abortion rights; civil liberties; human rights and freedom of speech – were all linked to court activism.
In our case, we’ve to make a choice between a corrupt-free Zambia versus the ‘status quo’ where by the country would continue inefficiently and corruptly. If we continue as is – as development gets hampered, and poverty would be widespread. This is the background with which we must judge Justice Musonda’s court ruling in the case of Dora Siliya’s affair.
When a court system makes decisions which impact the society negatively, it is up to the members of that society to carefully watch and scrutinize the “why’s” and “how’s” of those decisions. We must always look for influences behind those court judgments. Otherwise if people stopped being watchful, ideological or selfish goals would render the entire judicial system impartial. We have to, because vices like corruption breed well under this environment. If we let that happen, then what would be the purpose of having a system which does not deliver justice?
Historically we have seen what can happen to a society, when say, the court system is serving the interests of the state – such as under dictatorships or under unjust regimes such as South Africa’s Apartheid system, which existed and acted solely to suppress a black race.
When passing a judgment in matters relating to D. Siliya’s judicial review application - Justice Phillip Musonda has raised some eyebrows because of a tone and slant which is clearly pro-RB. Because of the preliminary information available to people on this Zamtelgate, nobody can hail his ruling as a progressive decision because it seems to have killed the balance and impartiality people expect to get out of its court system.
Some of the interesting questions we can raise in this case are: - First, did those senior judges sitting on the tribunal deliberately make an error in judgment on matters pertaining to law and the constitution? One motive for doing that would be to act as a way of helping President Banda wangle through a difficult and potentially damaging case.
While the objective of doing the appointing authority a favor, intertwined in this motive, would be the attractive personal gain of those judges. End result – the trust, respect, and people’s faith in the judicial system get eroded.
Secondly, people get troubled when they begin seeing conflicts between on one side – High Court Judge’s view against that of the Senior Supreme Court Judges. Truthfully, if the senior judges were not acting as “activists” in these matters, then whose interpretation of the law should the people take as correct, Musonda’s or Dennis-Chirwa’s?
Then, if later it turns out – after scrutiny and re-examination of the case by independent legal minds, shows that - His Highness Musonda’s decision is the correct position, then at least on moral grounds, the senior court judges must resign. For we can’t have senior judges who can’t even interpret the law correctly. That is, every time a mistake is made, obstruction of justice occurs, not to mention the ridicule that the judicial system becomes subjected to.
Finally, it appears that High Court Musonda is arrogantly over exercising the fact that – in matters of law, the Tribunal is technically subordinate to the criminal or High Court code – if I understand these things correctly. If so, it is that ammunition he perhaps relied on when passing that judgment in favor of Dora Siliya and RB’s government.
Conversely, it wouldn’t surprise anyone if RB delay in sucking Siliya was based on the pre-knowledge that they would take advantage of this loophole.
When you consider these points – plus many other relevant ones not outlined here, you end up concluding that – the Zambian people have no body else to redress their grievances. What an awful position to be in? No wonder many young Zambians are mad. How can they not be outraged? It is no wonder many of them desire to leave the country. When shall we get another Jesus-like savior?
I hope all those who care for the survival of Zambia beyond tomorrow are listening.
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