IMAGINE this: a country’s attorney-general comes to the highest court claiming, in effect, that this self-same court was complicit in “slavery and forced labour” via an unjust and flawed judgment, and therefore ought to reconsider and change that decision.

Though it sounds fantastical, it is exactly the argument outlined by the Zambian attorney general in a case brought to get the constitutional court to change its mind and decide it had made a mistake.

The case, and the AG’s argument, were born out of furious response to the constitutional court’s August 2016 judgment in which the five judges held that, under the constitution, Zambia’s more than 60 ministers and deputy ministers were not legally entitled to hold office after parliament was dissolved. Payment they had received while unlawfully acting in office had to be repaid.

Though the constitutional court’s sensational decision was delivered more than a year ago, the repayment question is still being hotly contested as the ministers have tried to avoid putting their hands in their pockets.

Most recently the affected ministers tried to persuade the court to reconsider the repayment question via a petition brought on their behalf by the AG.

In that challenge the AG filed papers saying that, even though it was the apex court, the constitutional court was entitled to overturn its own decisions when justice demanded. And what situation more obviously cried out for justice than a decision ignoring provisions barring slavery and forced labour, and ordering that people not be paid for work they had done?

But the AG never had the chance to make this part of his case in oral argument. The ground was cut from under his feet when, in one of its most recent decisions, the court found he had no legal standing to represent the ministers.

During the run-up to the nationally divisive and hotly contested elections of August 2016 the court was asked to consider the position of the country’s provincial and national ministers and their deputies. Did the constitution provide for their term of office to end when parliament dissolved ahead of the elections? If so, should they have received any payment after parliament ended?

The five-person constitutional court was unanimous in its decision: the constitution did not provide for the ministers to continue in office once parliament was dissolved, and all they had been paid after that date had to be repaid.

Zambia’s AG, Likando Kalaluka, faced a major hurdle when he went back to the court on their behalf. The constitutional court is the end of the road for litigation, so he had first to persuade the court to consider the possibility of an appeal against the earlier decision. To back his position that the court had erred he made reference in the papers filed before the hearing, to the August 2016 judgment producing an injustice like that of slavery.

Two others intervened in the same case, however, the Law Association of Zambia (LAZ) and an opposition party official. Between them they raised several preliminary issues, the most important of which was to question the AG’s authority to act for the unhappy ministers.

In its long-awaited judgment – it took a year to complete and deliver and was the second last decision handed down in 2017 – the court dealt extensively only with the preliminary question of the AG’s legal standing.

As the former ministers were now private persons, the court had to decide if the AG was allowed to participate in private proceedings and/or represent private persons.
From the functions of the AG listed under the constitution the judges concluded that the AG “had only one client, the government of the republic of Zambia”. If the AG had any role in private litigation it was only as an “intervener, in order to protect the public interest”.

The AG had argued that he was motivated to act in the public interest in this case and that the fact that private individuals would benefit as a result should not be held to prevent him acting.

But the judges found that while the action would benefit the former ministers “substantially”, it would not “further the interests of government in any foreseeable way”. If the AG were allowed to act in the matter he would be “representing the interests of the ministers in their capacity as private persons”. The AG’s connection to the ministers ended when the court concluded that they had to vacate their offices. No matter how “well-meaning” his intentions might be, he had no legal standing to act on behalf of the ministers.

In view of this decision, the court said there was no need for it to consider any of the other issues raised by the AG, for example, whether the constitutional could consider an appeal against its own decisions.

Despite the extensive delay, for which no reason was given, the case is clearly important for several reasons, most obviously in clarifying the powers of the AG.
It is also significant as the judgment appears to speak from a position of judicial strength, unwavering in holding to the court’s earlier decision. This is important since the appointment of at least one of the court’s members was strongly criticized because of her direct family relationship to President Edgar Lungu: while she recused herself on one occasion from deciding a case in which he was involved, citing that relationship, she has also given a judgment favouring him in an inter-party dispute. If the court were seen to waver on its strong initial finding it could well be interpreted as evidence of internal cracks over the court’s independence.

As to the other issues raised, the court has, for the moment at least, avoided having to consider whether it has the power to reconsider its own decisions: this is just as well since the fledgling court is still establishing its authority in Zambia where it has been in existence for less than two years.