With the Constitutional Court Judges taking someone flak from even the most undeserving of quarters in society in the aftermath of their throwing the presidential petition a media luminary Professor Fackson Banda has offered some shoulder for the Hildah Chibomba headed bench to lean on.
Banda, a former head of Panos Southern Africa Institute reckons the Constitutional Court Judges have been unfairly treated by political forces seeking to arm-twist them in their favour.
Below is Professor Banda’s take:
IN DEFENSE OF ALL THE CONSTITUTIONAL COURT JUDGES
Everybody seems to be sharpening their daggers, menacingly aimed at the throats of the current judges of the Constitutional Court. I say to you: this very situation would have arisen even if we had different individuals in that position.
While the judges may be faulted in the way they initially handled the presidential petition (but which human being does not err?), they eventually retreated into the rational quiet of their chamber to argue among themselves, as was expected of them.
The fact that ALL affected politicians cried foul is, in itself, a good sign. At this stage, what we have seems to be largely a political problem, and not necessarily one of the breakdown in law and order. And when you have a political problem of this magnitude, the scapegoat can so easily turn out to be an institution of State that may not easily defend itself.
To me, the majority and dissenting decisions of the judges were evidence of a healthy constitutional-interpretive struggle, but it is one among the judges themselves, as it must be.
The politicians, using their legislative prerogative in Parliament, did their job. And, as it turned out, they did not do that job handsomely.
Introduce politicians into this otherwise routine adjudicatory equation, and you have accusations of political bribery.
This is expected of politicians the world over — it is not unique to Zambia. And that is why we must invest a lot more energy in strengthening the judiciary, ensuring its independence and securing the tenure of the judges so that they can disagree among themselves and, by that process of adjudicatory disagreement, give us fairer and more just rulings.
There is no magic bullet. Above all, as citizens, we must learn to believe in the institutions that we set up to order our governance beyond the political space of partisan politics. At this rate, any one of us who ends up on the Constitutional Court could be so easily described as politically aligned. That is why we must begin to defend these institutions against both the ruling and opposition political elites. These institutions remain to order our lives on a daily basis, while parties — and individuals within those parties — wither away.
Friends, if we look to one of the oldest constitutional democracies
— the USA — it was not by mistake that James Madison, in the Federalist Papers, persuasively argued that “constitutional interpretation must be left to the reasoned judgment of independent judges, rather than to the tumult and conflict of the political process.”
If , according to him, “every constitutional question were to be decided by public political bargaining, the Constitution would be reduced to a battleground of competing factions, political passion and partisan spirit.
And the American constitutional set-up is still not a perfect place for resolving some of the heady political problems that country is facing, with opposing politicians pulling it in every direction, while the Supreme Court judges themselves fight to keep their interpretive independence.
But even among them, there are differing constitutional-interpretive approaches. The late Justice Scalia, for example, with his focus on a textualist interpretation of the constitution, was favoured by the Republicans, and that explains why they want him replaced by another Conservative-leaning judge.
Justice Sotomayer, with her approach to the constitution as a living document, has come through for the Democrats in support of their liberal-progressive agenda. And yet, in between, we do find a voice that balances out these extremes.
Should the Americans call for the resignation of these judges, each time there is a ruling against them? That would be irrational in the face of the fact that Americans have decided that, having the Supreme Court as a judicial arbiter, they are investing in it some of their individual freedoms and liberties for the greater good of the Republic.
So must we all. The ConCourt judges differed in their interpretation of — I must stress — the very, very new constitution that we gave unto ourselves. At the very first taste of this constitutional cocktail, must we spit out the taste that is our equally very, very new judges?
Verily, I say unto you: this is not right for our country. Let not the politicians natural partisanship result in our disavowing an institution that we are testing for the greater good of our multiparty democracy.
If I am a lonely voice in defence of the Constitutional Court at this hour of its adversity, so be it!