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Friday, 17 July 2009

An illegal Chief Justice?

The controversy over the Chief Justice appears to have stepped up a notch with the second front now being opened by the Patriotic Front President to the Judicial Service Commission (JSC), focusing on the nature of the contracts and the incalculable implications it may have for the President's own position :
"The Post newspaper edition dated Wednesday 15th July 2009 carried an article on the front page entitled "Chief Justice Sakala must go - Sangwa".

Firstly, I would like to know what role your commission has played in the award of the said contracts to these judges. If the commission were consulted by the President, why did Parliament not ratify the contracts to allow the people's representatives to question the candidates on their competence or otherwise to continue serving our people in such public positions?

"Secondly, it is my understanding that the fact that the contracts in question were not ratified by Parliament means that the process was incomplete and the appointments unconstitutional. If this is so, what is the position of the Chief Justice who purports to swear a President into office after elections when he is not supposed to be in office himself? What about the oath of office which the President took himself?"

"We cannot, therefore, gloss over these matters as a matter of convenience when the nation is spending colossal sums of money on a new constitution. The citizens need clear answers from all concerned and I demand that these answers be provided without delay"
The first front was opened by Sangwa in his letter to the Attorney General (AG), stating that that the Chief Justice Ernest Sakala and Justice Peter Chitengi have already passed their retirement age and are effectively illegal occupants of these important offices. All legal eyes are now firmly fixed at the AG and the JSC. Regardless of the motives of those bringing these issues forward, we all should applaud the renewed quest by Zambians to ensure that every letter of the law counts and is respected by everyone especially the Judiciary. There's simply no development without rule of law.


  1. "Article 98 Tenure of Office of Judges of Supreme and High Court
    (1) Subject to the provisions of this Article, a person holding the office of a judge of
    the Supreme Court or the office of a judge of the High Court shall vacate that office
    on attaining the age of sixty five year: Provided that the President: (a) may permit a
    judge of the High Court in accordance with the advice of the Judicial Service
    Commission, or a judge of the Supreme Court, who has attained that age to continue
    in office for such period as may be necessary to enable him to deliver judgement or to
    do any other thing in relation to proceedings that were commenced before him before
    he attained that age:"
    Before we use terms like illegal, we must make certain there is no case currently pending in the supreme court that requires the current chief justice to render judgement.
    The situation should serve to remind Zambians of the life expectancy data and other factors than affect medical, mental and physical eligible for high office.
    At the same time as some are calling for chief justice to vacate office due to age some in MMD are calling for a 71 year old man to run fro another term as President, what irony RB who is 71 or much older is expected to retain the mental presence to appoint the next justice and cabinet to rule over 12 million Zambians. is not this chief absurd in the least and madness if you ask me me.

  2. Kwanunikwanu; it may seem absurd but that is the law. Our country will be better served if we followed our laws religiously. If it is a bad piece of law then repeal it. In the meantime follow what is in the constitution or statutes!

  3. Frank

    A thousand apologies if my comment in any way conveyed any disdain for the law as it stands.
    In fact I specifically included the constitution quote to provide a broad context and full consideration of the law as it now stands, in this case RB can retain the current Chief Justice under the guise of uncompleted judicial proceeding if he suits RB’s current and future political needs. That would be legal, as I understand article 98, would it not?

    Just for discussion not comparison the US judicial system has life tenure for Supreme Court justices, this is why there is a turning of stone for Obama’s current nominee Sonia Sotomayo.
    If there is any hope of success, I would go further as to recommend to the NCC to consider the ambiguity of article 98 and/or remove the retirement age requirement and introduce a life tenure subject mental health.
    This in my view would strengthen and insulate the judicial system from political or executive manipulation

  4. Kwanunikwanu; You're absolutely spot on brother. It is high time indeed that we innoculated the supreme court justices against 'politimilitis'by introducing life tenure.

  5. Life tenure has it's own problems. It makes judges too independent and unresponsive to what society rightly regards as a correct balance. Judges become lazy and play lots of golf for high wages. Infact organisations like the Law Association of Zambia would become our defacto masters. So you replace Ministerial influence with a powerful cartel of unchecked interests.

    In my view we should never make piece meal reforms as suggested. We need to look properly at the system as a whole and find a correct balance across the piece.

  6. Cho

    I value your caution against piecemeal reform, however am taken aback by the leap from the status quo to "too independent and unresponsive to what society rightly regards as a correct balance."
    I beg to submit there is middle ground, besides the central premise of 3 arms of Government is to retain separate and independent organs that provide checks and balance.
    Laziness/golf in the face of high wages are human/business networking factors no legislation can fix.
    I would not be one to claim Western judicial systems as free of imperfections but to deem/or suggest US or British justices for example as too independent and unresponsive?

  7. The British system is different from the American one - the highest court in England is effectively the House of Lords.

    But my main point :

    When I said "too independent", I was referring to a scenario where the elected Executive and Legislature are unable to function effectively as a check on the Judiciary.

    So we are in agreement on checks and balances, my point was more on how to ensure there are real effective checks without making one branch too powerful.

  8. Cho,
    The checks and balances should begin at the point of appointment. Let us have something akin to the American system i.e what Sotomayor is going through now. It is also incumbent upon us to draw up a constitution that is clear and precise about its intent. For example removing the so called Christian nation declaration and just enshrining the right to worship ( I dread the day a 'christian' president will turn on Hindus, Jews, Bahai and non believers on account of this declaration). The legislature should also come up with statutes that are clearly defined (unlike the Acts relating to Tribunals, pornography etc). This is the only way we can ensure checks and balances. After all the supreme court is just the final arbiter of the rules drawn up by the peoples' representatives. Cho, I also do not believe that life tenure will breed laziness. Actually the current court is just lazing about if reports are to be believed! This a supreme court that just makes rulings without any written opinions. This could imply that the justices are either lazy or not of the right intellectual disposition i.e not qualified to sit on the supreme court bench. I assume constitutional law students in Zambia are in a quandary without case law!

  9. The Chief Justice and other older Judges are being kept through presidential prerogative because:-

    1. There is a shortage of judges in the judiciary, i.e. cases are being delayed because of lack of adequate number of judges.

    2. Very few experienced legal practitioners are interested in becoming judges. They make more money as lawyers and wish to keep it that way.

    3. The pension system for judges literally sends them to the grave. It is not attractive to retire. With 15% increments for nurses and other civil servants, the pension system has less to offer judges in retirement.

    4. Older judges deliver justice that it more dignified and accepted by the people where as younger judges (like Justice Musonda on Dora Siliya Appeal) deliver judgement that is controversial yet very legally correct.

    The Judiciary tries to maintain a balance of both and as such, the president is advised to exercise his prerogative to delay retirement of judges over the age of 65.

    I suggest we just make judges tenure life long so as to remove the possibility of retirement which will ultimately compromise integrity for fear of failing to sustain ones self after retirement.

    I agree with Kwanunikwanu and Frank. The judiciary will run more efficiently and be more autonomous by making the judges tenure lifelong.


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