Zambia’s constitutional court strongly backs judicial independence

By Carmel Rickard

Zambia’s constitutional court has found parliament in breach of the constitution by not passing legislation to ensure the full financial independence of the judiciary and that it is adequately funded. In a decision strongly underlining the principle of judicial independence, the court has ordered that until these laws have been passed and put into effect, the minister for finance should report to parliament every six months on what has been done to ensure financial independence of the judiciary. Ironically, the challenge was brought by Zambian counsel, John Sangwa.

In March 2020, the chief court registrar informed all the country’s judges and magistrates that Sangwa was no longer allowed to appear in court because of a ‘malpractice complaint’ filed against him by the lawyers’ association of Zambia. This ‘complaint’ followed a ‘denunciation’ of Sangwa by several judges after Sangwa was critical of certain new judicial appointments. He had also criticised the government when the former president, Edgar Lungu, announced he would stand again for the presidency, even though, in Sangwa’s view, he was ineligible.

Witchcraft cases are heard all too often in the Zambian courts. This time the accused, Isaac Sindala, was charged with ‘naming a person’ as a wizard, thus infringing the country’s Witchcraft Act. Sindala was also charged with ‘using insulting language’, something prohibited under the penal code.

Sindala is said to have named John Sichivula as a wizard during April, and to have used ‘insulting language’ about Sichivula on the same occasion.

According to Sichivula, Sindala came to his home late one night, and shouted ‘a stream of damnable invective’ against him, as well as calling him a wizard.

Damnable invective

Sichivula said from that time he has feared for his safety. He reported the situation to the local headman hoping that he would call Sindala in and make him stop his ‘despicable behaviour’. The matter was also reported to the police.

Sindala’s attitude seemed to be that Sichivula should have paid no attention to what Sindala said, unless of course he was in fact a wizard, and he denied the allegations made against him.

The law on witchcraft says that whoever names or accuses or threatens to accuse someone of being a wizard or a witch is liable to a fine and/or imprisonment of up to a year, with or without hard labour. There’s an exception to the rule where the ‘naming’ of someone as a wizard is made to a police officer.

The penal code is equally clear about the use of insulting language: if you use insulting language or conduct yourself in a way that could provoke someone into breaking the peace, then you could go to jail for three months and/or be fined.

Mob violence

The magistrate hearing the case, Deeleslie Mondoka, found that the prosecution had proved the case against Sindala in relation to naming someone as a wizard, but found him not guilty of using insulting language.

But in his judgment Mondoka went further, saying that the belief in witchcraft was deeply entrenched in the Zambian psyche and that people believed to be witches had been treated with ‘untold mob violence’. Many were ostracised by families and communities, dehumanised, seriously assaulted or killed.

In the ‘rustic place’ where Sindala lived, naming someone as a witch would be ‘fertile ground for disaster’ and the suspect could be ‘subjected to brutal force, barbaric and sadistic treatment’ like lynching, and, inevitably, death. Thus, it had been dangerous for Sindala to call Sichivula a wizard.

Elderly

Naming people as witches was particularly bad when it was directed at the elderly, as happened in this case, and it appeared increasingly that ‘old age is synonymous’ with being a witch in many Zambian communities.

The magistrate also had some important observations about the law against using insulting language.

He said he believed that ‘merely using threatening or abusive language’ shouldn’t be outlawed as the law did. Criticism was easily construed as insults by some people, so was ridicule, sarcasm and even ‘merely stating an alternative … to orthodoxy’ could be seen as an insult.

Contemporary intolerance

The law against insults had been on the statute books for more than 20 years and, when misapplied could create a society of an ‘authoritarian and controlling nature’. It could create ‘contemporary intolerance’ and result in ‘an intense desire to gag uncomfortable voices of dissent’ as could have happened in this case.

‘The incessant need to police insulting language can be counter progressive’ and was open to abuse.’ The way to deal with underlying prejudice, injustice or resentment was not to arrest people. Instead, the issues involved should be ‘liberally aired, argued and dealt with, preferably outside the legal process.’

A better approach to dealing with insulting language would be to ‘increase society’s resistance’ to it by developing a thicker skin, he suggested. ‘We need to build our immunity to taking offence, so that we can deal with the issues that perfectly justified criticism can raise.’

The accused was to have been sentenced in a separate hearing. (Africalii.org)