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Wednesday, 9 March 2011

Constitution of Zambia (Amendment) Bill 2010: Part VI

Appointment of Judges of Superior Courts

Part VI, Article 122 specifies key judicial appointment:
(1) The President shall, on the recommendation of the Judicial Service Commission, and subject to ratification by the National Assembly, appoint —
(a) the Chief Justice;
(b) the Deputy Chief Justice;
(c) the judges of the Supreme and Constitutional Court;
(d) the judges of the Court of Appeal;
(e) the judges of the High Court; and
(f) the judges of the Industrial Relations Court.
This Article is of course in existing constitutions but here it specifically includes the new “constitutional court”.

The goal of this provision is to ensure judicial independence – but not too independent that judges become a law unto themselves. In other words the three branches of government (executive, legislature and judiciary) are meant to convey legitimacy on one another.

Unfortunately, here it appears the government has played a trick over the sleepy citizens. The government would argue that the above article maintains the independence of the judiciary for two reasons. First, the Judicial Service Commission comes up with the original candidates, which the President selects. Secondly, Parliament always has the final say through the ratification process. But both of these points are misleading.

The Judicial Service Commission is appointed by the President according to Article 132, which states “(1) There is hereby established the Judicial Service Commission. (2) The members of the Judicial Service Commission shall be appointed by the President. (3) Parliament shall enact legislation to provide for the functions, powers, independence, composition, tenure of office, staff, procedures, operations, finances and financial management of the Commission”. Notice here that there’s no ratification of the Judicial Service Commission! The President just appoints and puts anyone on the Commission. He can fill the Commission with party cadres and then get them to nominate the relevant judges. The Commission services at the pleasure of the President and therefore can be fired by the President if he so wishes. Is there any incentive for the Commission to disagree with the President?

The other point should be obvious to readers of this series. The idea of parliament having a final say is a joke. The president’s choice of judges will always be approved by parliament due to the “chainstore paradox” problem we discussed under Part IV, Article 49. As we note there, if your ratification process is flawed then you will have weak separation of powers. The power of the Legislature does not just reside in making laws but also in its ability to check the Executive. Here we see that sadly the Judiciary is effectively in the pocket of the President. 

These challenges are not impossible to overcome. One obvious way to strengthen the process is to prescribe those who may be part of the Judicial Service Commission. This is the  Kenyan model. This reduces the discretion of the President to nominate cadres to the Commission and thereby restricts his choice. It would make sense to go further and make it clear, like the Kenyans, that in the performance of its functions, "the Commission shall be guided by....[the need to ensure] competitiveness and transparent processes of appointment of judicial officers and other staff of the judiciary". This would essentially mean all the choices they recommend to the President would be based on open competition.

Zambian Economist is currently reviewing the Constitution of Zambia (Amendment) Bill 2010. All posts in this ongoing review can be found at the Constitution of Zambia page.

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