On the bribery allegations in the ongoing elections case, so far the judges and Chief Justice have taken the high road and done the right thing. In a high profile case like this and in a country where corruption is rampant, it was expected that attempts will be made to compromise the judges. The whole idea of having five judges, not just three, was to reduce chance of corruption to zero. It also happens that the composition of this particular bench is such that it is impossible for it to be bribed.
The general public must trust the judges and allow them to deliberate freely, without any form of pressure or inducement, so that they can come up with a judgement that they believe is just in accordance with the facts and the applicable law. We as critics will, likewise, assess and evaluate their judgement based on facts and the law only.
There are several things at play in this saga. There are charlatans who want to profit from their corrupt political superiors by pretending that they have a pathway to bribing the judges. They get the money but never approach the judges and claim to have delivered the cash. The pretenders do harm to the judiciary by making others believe that they have bribed the judges and that judgement will be delivered for them. These are the more difficult ones to deal with because they operate in friendly territory where no one can report them to law enforcement.
Then there are deranged folks who think that they can succeed in and get away with approaching the judges improperly. A normal person would not make such an attempt given the kind of judges who are on the panel. It is not surprising that some individuals have landed in a lot of trouble for making such an attempt.
The inappropriate approach that is the subject of an ongoing ACB investigation must be understood in various ways. One, it could have been a genuine attempt to bribe the judges; two, it could have been an effort to swindle the superiors of money; three, both one and two; four, it could have been intended only to bring the court into disrepute.
As to the fourth, imagine the judge(s) who was (were) approached said yes, and a load of the billion kwacha was delivered and detectives tipped, it was going to be very easy to catch the judge(s) in the action. That would have entirely compromised the bench and the judiciary as a whole. It certainly would have meant that the current bench recuses itself. What would follow are endless recriminations and possibly no more elections case as the political shenanigans dominate the play.
The judges made the right decision in accordance with their own personal beliefs and values but also with their constitutional and professional ethical obligations.
They must continue to deliberate and to write the judgement, which they must deliver in February as they promised. I hope they also ignore the sensationalization of the allegations by party functionaries on social media and focus on the task at hand. Party functionaries have latched on to the bribery allegation and added their own allegations. The public is advised to hold on to facts and not endorse misinformation. There are only three known facts so far: there was an attempt to bribe the judges; the judges rejected the approach; and the judges reported to the Chief Justice who in turn reported to the ACB. No names of suspects have been revealed.
In this, Matemba has been correct not to act on the spur of the moment and effect immediate arrests. He needs to carry out the investigation in a way that doesn’t disruptive the judges from completing their task. I would even suggest that he waits until judgement is delivered. As the judges are the main witnesses in the bribery case, there is no need to disrupt their work at this stage. He must keep the suspects’ names to himself for now but continue with the investigation. There can be no side show in the lead up to judgement.
Matemba is also correct to say that the bribery complaint is against individuals and not a party. It’s hard to prove that connection in a court of law. He merely needs to prove the offence against individuals. Parties cannot be charged with criminal offenses of this kind.
Last point – there are only two mutually exclusive options the court has in the elections case: the one is to uphold the petition, which effectively means nullification of the presidential election; and the other to dismiss the petition, which means upholding the election.
The inappropriate approach doesn’t reduce the two options to one. For instance, if it turns out that the bribery was offered to benefit a particular party and candidate, it does not follow that judges will now find against that party or candidate if the facts and law support the case of that party or candidate. I therefore suggest that people banish the thought that the bribery allegation is determinative of how the judgement will go. It is a distraction, and the judges will strike it out of their minds in their deliberations.
Observations by Professor Danwood M Chirwa