LUSAKA lawyer Eric Silwamba says the role of judges in law development has been salutary (beneficial).
Silwamba, a State Counsel, was guest of honour at the official opening of the Lennox Wilson School of Law at Livingstone International University of Tourism, Excellence and Business Management (LIUTEM) in Lusaka.
Presenting a paper on ‘The role of judges in the development of law’, Silwamba said the reasoning of judges usually determines what the law is in reality.
Silwamba gave several examples of past court cases in which judges provided clarity where others did not understand the law.
“… ladies and gentlemen, from the few examples that I have shared, it is abundantly manifest that the role of judges in the development of the law has been salutary. Generally, the law is made by Parliament. However, in practice, the law is usually not what it says it is. Judicial reasoning usually determines what the law is – the law is what the judges say it is,” he said on Thursday. “Before I talk about what judges say what the law is, permit me a few minutes to comment on issues that, sometimes the judges never get the opportunity to pronounce themselves on. This is because the cases are never brought before them. It is said that ignorance of the law is no defence. The Latin maxims ignorantia juris non excusat or ignorantia legis neminem excusat- ‘ignorance of the law excuses not’ and ‘ignorance of the law excuses no one’. I don’t want to talk about ignorance of the law – but ‘ignoring the law’ where society silently but collectively resolve to ignore the law.”
He cited a situation where members of the public display the national flag during football matches as a total ignoring of the law.
Silwamba, who cited from the law, said no one was is allowed to display the national flag without permission from authorised government officers.
He said judges have never guided on such a matter because no one has ever presented it before them.
“Because of the economy of time, I will cite very few examples. In this country, it is very easy to tell that there is an international football match being played by the national team whether at home or abroad because most of the soccer fans will be clad in the national colours – and most conspicuously they will be flying the national flag. No doubt that is a high level of patriotism. Now, what does the law say about that conduct by ardent and loyal soccer fans?” Silwamba asked. “… Kindly now permit me to turn to the role of judges in the development of the law. I propose that we examine one case. As you are aware Parliament has not legislated on the stages of drunkenness. But you can trust the industry of judges and judicial activism, which must be appalled and encouraged. This richly contributes to our jurisprudence.”
He said while Parliament has never passed a law to determine the level of drunkenness, the judges have helped.
“A case in point is Micheal Chilufya Sata v Post Newspapers Limited where the judiciary guided on the stages of drunkenness after imbibing liquids that cheer. According to the judges, there are four stages of drunkenness: first stage: i. jocose – when one is cheerful and jocular. Second stage i. bellicose – when one is belligerent in a Floyd Mayweather/ Esther Phiri/ Catherine Phiri mode,” explained Silwamba.
“Third stage i. lachrymose – when one readily sheds tears about tragic events most of which occurred long before the person crying was born. Fourth stage. comatose- when one slips into a coma – ‘a blackout’. I pray that no one ever gets there.”