A Book Review by O’Brien Kaaba (Dr)
Justice Mumba Malila of the Supreme Court of Zambia in 2019 self-published a book entitled “The Contours of a Developing Jurisprudence of the Zambian Supreme Court: Reflections on My First Five Years as Judge (2014-2019).” This is a review of that book.
The book has 14 chapters, traversing major issues in his life as a judge, ranging from his appointment to the writing of judgments. Being written by a serving judge, the book is a valuable goldmine of insights into the workings of the Supreme Court and the judiciary at large.
Although the judge is primarily focusing on his contribution to the growth of Zambian jurisprudence, the book is actually an excellent diagnosis of the malaise bedeviling the judiciary in terms of intellectual capabilities and generation of transformative and progressive jurisprudence.
In this review, I wish to highlight the culture of thoughtlessness in the judiciary, which Malila JS eloquently brings out in the book.
Judicial Culture of Thoughtlessness
Not every judge thinks. What comes out clearly from reading Justice Malila’s book and his judgments (whether one agrees with them or not) is that he thinks. That alone is a praise worth attribute in a judge. Thinking is transformational. It leads to the questioning of clichés, dogmas, conventions and popular views. It is that power of thought that has a transformational effect on society. A thinking judge is an invaluable asset to society as he/she uses the law as a problem solving tool. In the hands of an unthinking judge, law becomes a tool to compound societal problems or simply a means for maintaining the status quo. Undoubtedly, Malila JS believes in the use of law as a transformative tool.
There is definitely a connection between the performance of our judiciary and our collapsing rule of law credentials. Jewish political scientist and historian, Hannah Arendt, attributes seeds of totalitarianism to thoughtlessness. Thoughtless people tend to be lost for words where they cannot rely on clichés and conventional answers. Waldron Wilson has an excellent description of this thoughtlessness: “Clichés and jargon, stock phrases and analogies, dogmatic adherence to established bodies of theory and ideology, the petrification of ideas- these are all devices designed to relieve the mind of the burden of thought, while maintaining an impression of intellectual cultivation.” This eloquent statement reflects the bulk of judgments churned out by our courts in Zambia. They lack thoughtfulness and seem to confuse thought with copious and uncritical reproduction of statutes and precedents, doing very little beyond that. Rules and precedents produced elsewhere are often reproduced without the slightest effort at critical analysis. How else could one explain the multiple decisions of the Constitutional Court, for example, to interpret the Constitution literally? Thinking involves re-imagining, re-figuring, re-orientations and a continuous engagement with the complexities that society throws upon us. To get a feel of how deficient our judgments are in this respect one has only to read the decisions of the Constitutional Court.
Malila JS shows remarkable awareness of this culture in the judiciary and openly discusses it in his book. He calls it judicial timidity and argues: “The manifest timidity by some among the judges to expand the law for posterity has also been quite commonplace…” He readily agrees that the concerns about the judiciary in this respect are legitimate and seems to urge his fellow judges to be receptive to public criticism. Interestingly, Malila cites his own experience as a law lecturer to demonstrate how he found many decisions of our courts lacking in depth: “When I was in academia as a university law teacher, I sought fervidly to use Zambian case authorities for teaching purposes. I often found it rather disconcerting to make reference to some authorities generated by Zambian courts, particularly on legal problems that had also been adjudicated upon in other common law jurisdictions. Much of our domestic jurisprudence indeed appeared to fall short in some vital respects. They tended to be poorly researched, lackluster and deficient in depth or in clarity.”
Not only do many judges seem to be at peace with the mere mumbling of clichés, legal dogmas and conventions (many of which developed in contexts completely different from our own and achieving different results when applied here), but they seem to suspiciously habour a phobia for intellectualism, giving credence to the words of Professor Kwasi Prempeh: “The result [is]… a jurisprudence that is unduly deferential to executive power, and, at best skeptical of ‘novel’ claims rooted in modern conceptions of constitutionalism.” Here one is reminded of the Constitutional Court’s recent decision to decline to consider the Amicus Brief of three university professors without giving any reason, instead proffering extreme aversion towards engaging with the arguments raised therein. We are yet to see, as often happens in Kenya and South Africa, a Constitutional Court judgment engaging with constitutional law concepts debated in peer reviewed law journals. Is that too much to expect?
Malila JS pinpoints challenges that contribute to this culture. They include misguided reliance on authorities, failure to do independent research by judges (heavy reliance on submissions of parties, in Malila’s words: “garbage in, garbage out”), uncritical and faulty reasoning. Beyond this, Malila points to the defect of an overly executive minded judiciary, churning out jurisprudence that is unbelievably so deferential to the executive. He lists some well-known cases, such as Feliya Kachasu v Attorney General (1968), Patel v Attorney General (1968), Nkumbula v Attorney General (1972) and Nkumbula and Kapwepwe v UNIP (1978) as being defective in this respect and could have been decided better, or at best overturned to suit present democratic requirements. Ironically, the Constitutional Court has continued to cite some of these cases with approval and unalloyed fidelity, raising serious questions about the capacity of that Court to be a midwife of transformative constitutionalism.
Not only does Malila JS write to expose this malaise, but also through his judgements, shows that he refuses to settle for such base judicial performance. The book contains excerpts from some of his judgements. One does not need to agree with his conclusions. The point is that he makes an effort to think and looks through authorities with a critical eye. His judgements tend to be well-written, flow logically and try to deal with issues raised exhaustively. His judgements, such as George Mwanza and Melvin Beene v Attorney General (2019) which recognized the right to adequate food and nutrition for inmates, are already receiving positive reviews across the world. This is a breath of fresh air, giving us jurisprudence to flaunt before the international community. The capacity of Malila JS is readily distinguishable from the collective capacity of our Constitutional Court. When reading the judgments of our Constitutional Court, and seeing their defective and fallacious legal reasoning, inadequate research, lack of intellectual depth and critical analysis and complete lack of interest to foster a culture of constitutionalism, one is moved from condemnation to pity. Pity because a person can only give from the depth of what they have and no more. Instead of being a fountain of learning and a bulwark of constitutionalism, the Constitutional Court looks comfortably cocooned in its world, making it a perfect example of Plato’s allegory of the cave.
Justice Malila’s book also criticizes the entrenched practice by Zambian courts whereby judges who concur with unanimous or majority judgments do not give reasons for doing so. He argues that “reducing judgments to joint or unanimous opinions undermines individual accountability” and that “each judgment should be a conscientious reflection of the judge’s view of the law and not simply the product of ‘group think’ and compromise.” Malila’s reasons for urging judges to write individual judgments is compelling: “Separate judgments deflect any suggestion that not all the judges gave the appeal their full individual attention. They demonstrate that individual judges faced up personally to the pain of decision making, rather than that they took the simpler course of aligning themselves with the writer of the first draft.” Malila JS is right. Courts should not be a mutual admiration club. A lawyer who has no capacity for independent intellectual engagement should never accept to serve as a judge.
Malila’s point here can be used to assess the work of the Constitutional Court. As of June this year, the Constitutional Court only had about 40 cases. Constitutional Court judges have not been writing individual judgments (except of course the occasional dissenting opinions by Munalula JC) and simply yield to what their colleague has written. This entails that in the last six months each of the nine (9) judges wrote an average of five (5) judgments. That is less than one judgment per month. This is a matter of accountability, considering that the Constitutional Court judges are paid individually and are among the highest paid judges (as compared, for example, with High Court judges who do so much work but earn less than Constitutional Court judges). Constitutional Court judges are basically doing very little work and earning almost free salaries.
Where the Judge Could Have Done Better
Without detracting from the invaluable character and import of Malila’s book, I wish to point out two issues the judge, with hindsight, might wish to have treated differently. First, in the opening chapter of the book, Malila reacts to those who were opposed to his appointment as a judge and spread lurid stories about him. In doing so, he uses extremely emotive language such as “unthinking,” “cowardly,” “ignorant,” “anchoring bias,” and “how cheap.” By using such strong language, the reader of the book is forced to search online to read for himself/herself the stories that annoyed the judge so much. In doing this, the judge has invariably given a longer life span to those stories than they deserve. The second matter is about his stand on what constitutes contempt of court, especially in relation to words uttered outside court. Malila’s academic writings strongly oppose the invocation of judicial power to punish those who criticize judges, however unfounded their comments may be. However, in the case of Gregory Chifire and the subsequent case of Daniel Mwale v Njolomole Mtonga , Malila seems to depart from his intellectual views and readily participates in what he himself calls “group think.” This ambivalence is reflected in his books. While he stands by those decisions in the book, he at the same time indicates that the efforts are fruitless and remedy nothing. If the people think poorly of a judge their views are more likely to be solidified and not weakened by sending them to jail. The judgements in the two cited cases are poorly researched and logically incoherent, while the foreign precedents they both rely on have been abandoned in their countries as they are inconsistent with modern conceptions of human rights. The contempt cases are a disservice to the reputation of the Zambian judiciary and certainly do not reflect the progressive and intellectual clout Justice Malila has displayed so far in other judgments.
Justice Malila’s book is a welcome resource as it helps us to have a better understanding of the judiciary and the problems affecting the institution. It fills a huge gap in terms of Zambian literature dealing with the internal workings of the judiciary. Above all, the book and his judgments speak volumes about Justice Malila’s capabilities. He is a judge with a powerful intellect, a man of tremendous learning, a discerning ear, courage to speak his mind, superior eloquence, compassion for poor litigants and robust commitment to the rule of law. With all these admirable qualities, if tomorrow we are to read a decision written by Malila but sounding like those of the Constitutional Court, we shall know that it is not capacity that is lacking.
[the author is a lecturer in the School of Law at the University of Zambia and an avid reader of Justice Malila’s judgments]