By Henry Kyambalesa
Zambians, like citizens in all other democratic countries worldwide, believe and claim that their country is governed through the following three ‘independent’ organs or branches of government, which, in the words of Farese, Kimbrell and Woloszyk (2009:125), are supposed to provide for “a system of checks and balances that prevents any one branch of government from becoming too powerful”:
1. The Legislature: This organ of government is shouldered with the responsibility of enacting, amending and repealing a country’s laws. In any given democratic country, it is generally composed of elected members. In some democracies, the executive President or Prime Minister is mandated to nominate a small number of citizens to join the legislative branch, and to constitute his or her cabinet from elected members of the legislative branch.
In this respect, it would be advisable for a country’s executive president or prime minister to fill cabinet-level positions with individuals who are not elected Members of Parliament in order to provide for greater independence of the legislative and executive organs of government.
Besides, such a move can provide presidential and prime-ministerial candidates with a larger pool of competent citizens from which he or she can constitute his or her cabinet. In other words, it can afford aspirants for the top position in the executive branch enough time to identify potential ministerial appointees well before elections rather than waiting for elections of lawmakers to be concluded.
Moreover, it can reduce the work overload of members of a country’s cabinet who would otherwise be expected to handle both ministerial and legislative functions.
2. The Executive Branch: This is the branch of government that is responsible for enforcing and implementing laws generated by the legislature, administering the day-to-day operations of a national government, and rendering essential public services. It is normally headed by an elected executive president or prime minister. (Note: To reiterate, some countries’ constitutions provide for the executive president or prime minister to fill positions in his or her cabinet with elected members of the legislative branch of government.) And
3. The Judicial Branch: This branch of a country’s government is responsible for interpreting a country’s laws, resolving disputes between and among organizational entities and individual members of society, and ensuring that laws are impartially and judicially applied. It is typically headed by an individual who is nominated by the executive president or prime minister, and who is ordinarily confirmed by members of the legislative branch of government.
Besides, the individual serves as a member of the executive president’s or prime minister’s cabinet, blurring the line of independence between the executive and the judicial branches of government. As such, the judicial branch is clearly not an ‘independent’ organ or branch of government!
In the United States, for example, the fallacious and questionable ‘independence’ of the head of the country’s judiciary was once questioned by Gambino (2019) in the following words: “William Barr: Is His Defense of Trump Paving the ‘Road to Tyranny’?”
Besides, the mythical ‘independence’ of the judicial branch of the Federal government in the country was somewhat bemoaned by the late U.S. Representative Elijah Cummings in April 2019, and by former U.S. House Speaker Nancy Pelosi and former Senate Minority Leader Chuck Schumer in the following words (CBS News, 2019 and Hains, 2019):
“Mr. [William] Barr is acting as the defense counsel for the president of the United States … [when] he’s supposed to be our lawyer, the people’s lawyer.”
And
“Attorney General [William] Barr’s regrettably partisan handling of the Mueller report … [has] resulted in a crisis of confidence in his independence and impartiality.”
(Note: The “Mueller Report” was the final report of a U.S. counterintelligence investigation of an alleged Russian government’s effort to interfere in the 2016 U.S. presidential election headed by Special Counsel Robert Mueller.)
The use of the words “your Justice Department” and “my Justice Department” in the following statements by George Stephanopoulos of ABC News and Beto O’Rourke, one of several Democratic Party presidential candidates, clearly demonstrates the fact that the judicial branch in the United States – and in all professed democratic countries worldwide as a matter of fact – is not ‘independent’ from the executive branch of government (ABC News, 2019):
Stephanopoulos:
“If … you win, if you become president in 2020, would you want your Justice Department to pursue charges against President Trump?”
O’Rourke:
“I would want my Justice Department … to follow the facts and the truth and to make sure at the end of the day that there is accountability and justice without [which] … American Democracy comes to a close.”
The following excerpt provides another obvious example of the potential for legislative and/or executive branches of a country’s national government to have undue influence on judicial decisions and the composition and operations of the judiciary (Democracy Now, 2020):
“Senate Majority Leader Mitch McConnell and other Republican senators [are reported as having been] … privately contacting conservative federal judges to urge them to retire, so they can be replaced [by other conservative judges] while Republicans still control the Senate and Trump is in the White House.”
Representative Pramila Jayapal, a U.S. Democratic Party member representing the State of Washington in the U.S. Congress is quoted by Shortell and Herb (2020) as having taunted William P. Barr, then U.S. Attorney General, during a Congressional hearing in the following words:
“There is a real discrepancy in how you react as the Attorney General, the top cop in this country, when white men with swastikas storm a government building with guns, there is no need for the President to ‘activate’ you, because they’re getting the President’s personal agenda done … [but] when Black people, and people of color protest police brutality, systemic racism and the President’s very own lack of response to those critical issues, then you forcibly remove them with armed federal officers, pepper bombs, because they are considered terrorists by the President.”
In Zambia, the perception that the Republican president can weaponize the country’s judicial branch because he nominates the Minister of Justice, and since the Minister is a member of the President’s cabinet, caused disgruntled opposition political parties and civil society groups in the aftermath of the country’s 2026 General Elections to accuse him of having ordered the closure of courts of law in order to frustrate post-election petitioners.
Sichula (2026) has narrated the response from the Office of the President in the following words:
“State House has denied claims that President Hakainde Hichilema ordered the closure of courts [after the 2026 General Elections] … to block opposition election petitions, saying the Judiciary was independent and that the President had no authority over court filings.”
This is not the first accusation of alleged presidential meddling in the judicial branch’s decisions and operations, and it is certainly not going to be the last as long as the office bearer of the judicial organ of the country’s government continues to be a member of the Republican president’s cabinet!
There is clearly a need for the Republican president and Members of Parliament (MPs) in Zambia – and elsewhere as a matter of fact – to seriously consider the prospect of subjecting prospective and future heads of the judicial branch of government to a popular vote by the citizenry in order to make the elected heads accountable to the people, make them less vulnerable to the influences of politicians and ideologues, and make them ‘truly’ independent from the whims of the head of the executive branch.
And the country’s Supreme Court Justices, as well as special counsels, would ultimately need to be nominated or appointed by the elected head of the judicial branch and confirmed by the national legislative branch of government in order for them to be ‘independent’ and impartial in the dispensation of justice.
The term of office of the elected head of the judicial branch should be analogous to that of the executive president or prime minister, and that of members of the legislative branch of the country’s national government.
In the United States, for example, most States (at least 40 out of the country’s 50 States) elect their Attorneys General. And most municipalities in the country elect their Sheriffs. The country’s Attorney General, as noted earlier, is appointed by the President and confirmed by the U.S. Senate.
One wonders why the U.S. Congress, the Zambian Parliament, and all other legislative organs of democratic governments worldwide cannot seriously consider the prospect of subjecting aspirants for the position of Attorney General to a popular vote by the electorate!
In addition to the creation of a system of governance that has three truly independent organs of government, having an elected head of the judiciary can mitigate – even abate – accusations of weaponization of the judicial system often leveled against executive presidents and prime ministers.
Besides, it can be an effective deterrent or safeguard against the potential for a vindictive, narcissistic and/or mean-spirited executive president or prime minister to weaponize the judicial organ of government against political opponents or perceived enemies.
The current Attorney General of the Republic of Zambia is Mulilo Kabesha, SC (State Counsel), who serves as the principal legal advisor to the government
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Bibliography
CBS News, “Transcript: Rep. Elijah Cummings on ‘Face the Nation’,” https://www.cbsnews.com/, April 21, 2019.
Democracy Now, “Mitch McConnell Urging Conservative Judges to Retire While GOP Still Holds Senate & Presidency,”
Farese, Lois S., Kimbrell, Grady and Woloszyk, Carl A., Marketing Essentials (Woodland Hills, CA: Glencoe / McGraw-Hill, 2009).
Gambino, Lauren, “William Barr: Is His Defense of Trump Paving the ‘Road to Tyranny’?” The Guardian: https://www.theguardian.com/, May 4, 2019.
Kyambalesa, Henry, The Size and Functions of Government (Lambert Academic Publishing, 2022), pp. 353–357.
______, “Three Branches of Government: Myth or Reality?”, Africa News Analysis: https://www.africanewsanalysis.com/, March 3, 2024.
Pelosi, Nancy and Schumer, Chuck, quoted in Hains, Tim, “Attorney General Bill Barr Press Conference on Final Mueller Report,” Real Clear Politics: https://www.realclearpolitics.com/, April 18, 2019.
Shortell, David and Herb, Jeremy, “Barr Clashes with Democrats over Policing and Roger Stone Sentencing at Fiery Hill Hearing,” CNN:
https://www.cnn.com/, July 28, 2020.
Sichula, Augustine, “Presidency Denies Hichilema Ordered Court Closure, Cites Security Assessments,” Zambia Monitor: https://www.zambiamonitor.com/, August 2026.
Stephanopoulos, George and O’Rourke, Beto, quoted by ABC News, “‘This Week’ Transcript 6-9-19: Beto O’Rourke,”
https://abcnews.go.com/, Jun 9, 2019.
Disclaimer: The content of this article is an adaptation and refinement of a previous one entitled “Three Branches of Government: Myth or Reality?” circulated in March 2024. I believe both articles feature suggestions and caveats that are vital to the viability and sustainability of democracy in any given country and are, as such, worthy of re-circulation.
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