JOHN SANGWA

There is circumstantial evidence that the prosecution and persecution of John Sangwa by the Judiciary proves the truth of the allegations marshaled against the Judiciary. That is, the very behaviour of the Judiciary towards John Sangwa is itself circumstantial evidence of the truth of the contents of the allegations themselves.

What if a PhD student in law proposed to do a Doctoral Dissertation or Thesis, depending on what this document is called in that particular jurisdiction, on the hypothesis that the way the Judiciary in Zambia has prosecuted and persecuted John Sangwa is itself circumstantial evidence that the judiciary is corrupt, incompetent, not independent, not autonomous and is dancing to the tune of the political autocracy? Would this student succeed in his enterprise supervised by an independent-minded academic and a supervisory committee that is defensive in the highest tradition, of academic freedom, development of an inquiring mind buttressed by constitutional rights enshrined in an existing Constitution and whose final product would be peer reviewed by an experienced and knowledgeable academy? Let’s speculate how the student would prosecute this task.

The student would first be intrigued by how an entire Judiciary of a country could use a nuclear weapon of silencing a lawyer, a State Counsel, by barring him from appearing before any court of law in the country without any initial complaint, investigation and charges and conviction by the governing body of the legal profession. The student would be mindful that the first principle of justice is the right to be heard; that is the principle of natural justice. The student would recall a powerful case from the Ontario Court of Appeal called “Khan” in which the Court stated that when it comes to judging cases involving someone’s livelihood, like lawyers etc, a heightened sense of justice need to animate the decision-maker. The decision maker would go beyond the call of ordinary justice to higher consciousness of Justice because of what is at stake. Here in the case of John Sangwa, a nuclear weapon of the death sentence for a lawyer has been detonated at the front end.
The student would ask himself or herself: where on earth and in the annals of disciplinary cases has such a case ever happened? The student will find nowhere in documented or known legal history. The student will ask himself, has the judiciary of any country ever been criticised, justly or unjustly and behaved the same way? The student will find that the judiciary has been criticised more severely in many countries but these judiciaries have never behaved in the same way of igniting a nuclear devise before a complaint, investigation, and charges and conviction by the governing body of the legal profession, let alone the judiciary. The student will find that the judiciary had been more criticized by the judiciary itself, especially by the apex courts criticizing lower court judges and decisions in the most unfluttering terms than any criticisms that might have emanated from anywhere else. He would quote from the decisions of the Supreme Court of the United States and Canada as examples for critical judicial commentaries on the judiciary themselves, without any dent to the image of the judiciary. He would find that any judiciary which is more concerned about the protection of its image than the delivery of justice is a judiciary that is compromised. It is a dangerous judiciary.

The student will find the case of lawyer Harry Kopyto of Canada who was charged with contempt of court for scandalising the court and convicted in Superior Court. The Ontario Court of Appeal set aside the conviction, pointing out that courts are not wilting flowers, but solid institutional structures staffed by gallant judges who would survive any critical Armageddon. And it really doesn’t matter what kind of criticisms are levelled against the judiciary.
The student will utilise international human rights and international law of refugees to find cases that have pronounced that prosecution can morph into persecution and conclude that the prosecution of John Sangwa has devolved into persecution. Persecution connotes an injustice ab initio.

Sangwa simply questioned the qualifications of the judges in question based on constitutional criteria and wrote to the President not to appoint these judges. They were appointed nonetheless and Sangwa became the most frequent lawyer to the Constitutional Court, indicating he accepted the outcome of these appointments. Criticizing the decisions of the judiciary is part and parcel of the constitutional order in a country under the Rule of Law. The judiciary is fair game to criticize, including the decisions emanating therefrom in a reasonable stance. The judiciary, if unaccountable, results in wrongful convictions, unreasoned and unreasonable decisions, corruption, incompetence and so on. This is no secret. Former Chief Justice Lombe Cibesakunda revealed that there is corruption in the judiciary. She is quoted as so stating severally. Dr R. Majula in his book, The Impact of Corruption on Public Administration (2014 rev.) has a chapter on Judicial Corruption in Zambia, quoting Chief Justice Chibesakunda.

However, the Majula chapter or the statements by the former Chief Justice have no documented evidence of actual corruption. So our student would have a hard time trying to prove the existence of corruption in Zambia. In many other countries, evidence is easy to come by. In Zambia it is mainly or merely anecdotal. It needs to be weaved into a systematic study. Our student would be the first to broach the subject theoretically and systematically. Others can build on the architecture that our student will have laid down theoretically.

Our student will explore various theories about where to begin. Should he begin with Max Gluckman’s theory of “situational analysis” framework of investigation? Gluckman is the author of “Barotse Jurisprudence” where he developed the theory or thesis that a single event can illuminate the dynamics of an entire phenomenon. The treatment of John Sangwa can illuminate the nooks and crevices of the Zambian judiciary. The Americans call it, “teachable moment” where a single event can be blown to represent wide anecdotal phenomenon.

The student could also start with previously examined phenomenon of sex and race discrimination where the conservative judiciary wanted 100 per cent full proof evidence that an act against a woman or black person was motivated by gender or race animus. There is usually no direct evidence but only circumstantial evidence. The effects on women or blacks could be evidence of sex or race discrimination because one couldn’t find direct evidence, only effects of discrimination could be found. Judges like the current Supreme Court of the US Justice’s Ruth Badder Ginsburg started pummeling on effects “evidence” to convince the Supreme Court in the 1970s to abandon “direct” evidence of discrimination paradigm. Do we have Ruth Ginsburgs in our courts or the caliber of the Constitutional Court of South Africa judges on our courts? We do. Do they make the same decisions? No.

The very concept of circumstantial evidence which was created centuries ago speaks to this very issue. When you have no direct evidence, circumstantial evidence when available, could do the job, sometimes even a better job than direct evidence. A person can see a perpetrator of a crime directly, but be mistaken as to identity. Circumstantial evidence is when there is no other alternative than to infer that on the basis of the evidence available, only that outcome, guilty or acquittal is possible.

In the case of R. V. Brown, the Ontario Court of Appeal stated when dealing with Racial Profiling, which is analogous to proving any allegations against the judiciary, that, “a racial profiling claim could rarely be proven by direct evidence. This would involve an admission by a police officer (or customs officer or judge if rephrased) that he or she was influenced by racial (or incompetence or corrupt influences or whatever in the case of the judiciary) stereotypes in the exercise of his or her discretion to stop a motorist.

Accordingly, if racial profiling is to be proven, it must be done by inference drawn from circumstantial evidence”. The circumstantial evidence of how Sangwa was treated can be used as evidence proving whatever allegations are contained therein, the student could submit. What explanations could there be?

The student would further quote a great deal of case law showing that it is very difficult to prove a case against a judge in the majority of cases. He would deploy a device that is used to prove reasonable apprehension of bias. Here a person need not prove that there was actual bias as this sometimes is difficult to prove. The person just needs to show reasonable apprehension of bias. It goes the same for the concept of justice. Justice must not only be done, it must also be seen to be done. Process and procedure are as important as substance in the calculus of justice and dealing with the judiciary.

The proof of bias or justice is not for everybody to detect. It is for that legal construction of “reasonable” person, “a reasonable and right minded person, applying themselves to the question and obtaining thereon the required information… And having thought the matter through…conclude to quote a famous case on this point.

The judiciary has never answered Sangwa’s allegations but instead has detonated a nuclear weapon in his direction, without a charge or hearing at first instance. The judiciary is the accuser, prosecutor, and judge in its own cause as it were, at the outset of the case. Sangwa stands already convicted and as a result is prohibited from appearing in court. He is already sentenced, the student could find.

From all this, the student could finish the Thesis and state that the very treatment accorded to Sangwa in this unprecedented case represents circumstantial evidence proving the allegations deployed against the judiciary as no reasonable person, apprised of the issues and the treatment and having thought the matter through, could infer otherwise.

The Dissertation would be a path-breaking study using everyday legal concepts. The student will pass with flying colours. I will apply to be on his Dissertation committee.

Dr Munyonzwe Hamalengwa teaches Law of Evidence in Law school.

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