THE Nation is under serge, says Heritage Party president Brigadier General Godfrey Miyanda.
In his open letter to the legal fraternity in Zambia, Brig. Gen. Miyanda stated that there was an obvious strategy by the elected government to interfere with judicial independence
Find below Brig. Gen. Miyanda’s open letter:
OPEN LETTER TO THE LEGAL FRATERNITY IN ZAMBIA!
[Brig Gen Godfrey Miyanda – 21st August 2013]
I write this open letter to the legal fraternity (lawyers, judges including magistrates, paralegal and other support staff of the judiciary) as a matter of urgency. I wish to express an opinion on the prevailing situation concerning the judiciary in the country. I make this appeal in my personal capacity as a citizen to remove the perception of a partisan agenda. If there was a way for me to appear on a national forum such as ZNBC television and Radio Zambia without encumbrances I would gladly do so in order to make the case I am putting forth in this open letter.
Debate on the judiciary cannot and must NOT be curtailed for fear ofcontempt of court. Even the judges themselves must surely be aware that THIS IS THEIR FIGHT, except that they cannot wage it themselves in public. Alas this debate has been divided between those who support the ruling party (PF), and those who are not in government, currently labelled “the opposition”. But the subject is definitely non-partisan.
So why address the legal fraternity? When a nation is under siege all patriotic citizens put aside their individual or partisan interests, to attend to a national emergency. The situation obtaining in Zambia has not yet reached emergency proportions, but it is fast approaching it. I believe that prevention is better than cure. We must never wait until there is proof of injury to the polity of our state and nation (the cultural, social, economic and even military and security fabrics).
I am addressing the legal fraternity since there is an obvious strategy by the elected government to interfere with judicial independence. In keeping with certain protocols and professional training, many legal persons are quiet even in the face of obnoxious and outrageous breaches of the Republican Constitution. While I appreciate the importance of professional discipline and etiquette there comes a time when enough can be judged to be enough.
You, the legal fraternity, understand better the importance of judicial independence. As a young lawyer how can you be proud to stand before a judge, to fight for your client, when the same judge has decided the case outside the court room due to interference of one form or another? As a judge how can you have a free conscience when you have been made to make a decision that you know is not correct simply because you are intimidated or compromised? Do you legal people still believe that the Blind Lady standing in front of our Courts blind-folded, is still blind?
I am appealing to you because many of you appear to be bystanders in the midst of a sizzling fire, particularly the inferno raging around the judiciary. We want and expect judges (and of course lawyers) that are as bold as a lion and as blind as the symbolic Blind Lady. How can you as lawyers proudly stand before a judge who has already made up their mind and argue a predetermined case? How can you stand the situation where Big Brother is breathing down the necks of judges to do the bidding of the Executive? What is the difference between you and an ignorant party cadre who parrots praises in support of a wrong decision?
Politics is about debate; opposition parties are being prevented from holding public rallies in spite of the landmark “Mulundika and Others” judgement – you are silent!Equally, demonstrations,which are part of the democratic discourse, have been curtailed. In the Mulundika case, His Lordship the former Chief justice Mathew Ngulube pointed out that it would be expecting too much of those in power to be generous in allowing their opponents a free ride in holding rallies. How true has that powerful judgement become today!
Threats by a head of state must not be taken lightly because it is like Muhammad Ali threatening to beat up a defenceless 10 year old girl; she will likely wet her clothes out of fright! Let me remind you of one “Muhammad Ali” who delivered a fatal punch to a sitting Zambian judge.
You may recall a judgement to which the Heritage Party (and I) were a party. An injunction was properly granted to the Heritage. The Post newspaper became aware of it and published it as a front page story on the Saturday that the Republican President was to hold a press briefing. The President was not amused; so he devoted the first five minutes of his press briefing lambasting the judge, and verbally directing the Chief Justice to ‘do something about it’. On the following Monday the Judge reversed his ruling without hearing the Plaintiff (Heritage). Part of his judgement was to apologise to the President (Judges do NOT or should NOT apologise to the parties, especially those who have not had the courtesy to appear and argue their case). That ruling shows what a threat by an African President does; we are in a regime that does not hesitate to threaten anyone, be they MPs, chiefs, students, church leaders and even lambasting Service Chiefs of our Defence and Security Services in public and in front of their subordinates. So this open letter must be viewed in this light especially that our President and Commander-In-Chief has refused or neglected for two years to grant the media a chance to interview him and ask pertinent questions. He has brought about the debate that is now raging regarding the judiciary by displaying an unquenchable appetite to control the other two arms of government. This seed mustnot and should not be allowed to germinate or grow.As you obviously are aware the concept of the Separation of Powers in its modern application focuses on limiting dictatorial tendencies, so that none of the three arms of government should reign supreme over any of the other two (namely the Executive, the Legislature and the Judiciary). This is to avoid arbitrary rule, which is now prevalent under the PF regime.
The case of the Acting Chief Justice should be viewed from this perspective, that it is NOT her qualifications as a lawyer and judge that are being questioned. It is the insistence by the Government to rubbish the Supreme Law of the land and keep her in office.
And yet judicial independence is NOT for the enjoyment of the judges but for the protection of all citizens, especially the weak and vulnerable in society. When a regime demonstrates its prowess/power but ignores the Constitution and other laws, it is time for all right-thinking citizens to speak out and not pretend to be “good boys and girls”. That time is now. Do not wait to put on your gowns and wigs but put on boxing gloves because it is right for all to speak out and challenge the blatant abuse of citizens’ rights and breaches of the Constitution. The writing is on the wall!
I reiterate that no judge should be directed as to what judgement to deliver, not even by their seniors such as the Chief Justice or other senior lawyers; if such tendencies exist they must be nipped in the bud before the cancer spreads and becomes the normal practice.
My concern is that our established systems are being destroyed under the now abused phrase of “the mandate”, using carefully worked out schemes to circumvent the law. These things are going on while the majority of you, the legal fraternity, have become idle spectators. I call upon you all to put on your non-partisan spectacles and see clearly that the whole nation is adrift. We need direction; we need dialogue not threats, intimidation and/or bribery and buying of opposition Members of Parliament.
Early this year I called on the President to address the nation (The Post, Issue No. 570 dated 21st February 2013 on page 2; Daily Nation 22nd Feb 2013 page 6; Daily Nation 12th June 2013 page 6). I had also made the same call last year (The Post October 2012; Daily Nation 19thOctober 2012 Issue No. 305 page 6; Daily Nation 20th October 2012 Issue No. 306 page 6). Other political parties, civil society and ordinary citizens have made similar calls but the Executive have chosen to ignore the calls. Since then more breaches have occurred, prompting me to address and appeal to you who are experts in matters of law and who may better put the issues to the Executive. This is not idle “politicking”. I thereforeappeal to all of you described as “the legal fraternity” to stand up and be counted.
Finally I take this chance to appeal to fellow Zambians to feel for judges (magistrates included) in the lonely task of having to satisfy all litigants who demand and expect justice. Regrettably, justice to all litigants means winning a case; but it is not possible for both sides to win unless they settle the matter out of court. But if they attend court, they must have confidence that the judge will not be looking at their faces but at the evidence. That is why those in authority, especially the Republican President, must not be the ones threatening the judges or compromising their independence. I urge that judicial independence be protected and preserved at all times; barring corruption and/or other improprieties, there is no immediate substitute for our current judicial system.
ONE OF THE CONCERNED CITIZENS
[21ST AUGUST 2013]