Alleged contract of the Chief Justice of Zambia

By Brigadier General Godfrey Miyanda

I disagree that knowledge and/or information should be the preserve of professionals. If this be so then logically only such professionals should vote in national elections! I believe that the public, especially the silent public, are entitled to information and knowledge that would assist them to understand and make up their own mind on issues of national importance. One such issue is the appointment of a substantive Chief Justice in Zambia which has been clouded in an unnecessary controversy, further eroding of public confidence in the office. In view of the inconclusive debate between the Minister of Justice, Hon Wynter Kabimba, and myself on a live ZNBC Radio programme courtesy of the UK-based Cross Fire Blog Talk Radio, as well as a discussion by one Munshya wa Munshya, it is necessary to debate this issue further.

I contend that there is no provision for appointing a substantive Chief Justice other than by Article 93 (1). I further contend that a distinction must be made between conditions of service that comply with and seek to reinforce permanent conditions of service for judges and contract terms that are for administrative convenience.

Recently the Minister of Justice, Hon Wynter Kabimba accepted my challenge for a debate generally on the judiciary but specifically to address the appointment of a Chief Justice. The live debate took place at the ZNBC Radio Two studio, courtesy of the UK-based Cross Fire Blog Radio talk. After two hours there was no single provision cited by the Minister to fortify the intransigent position of the Executive. The Minister actually claimed that Her Ladyship Madam Justice Lombe Chibesakunda is on contract; challenged to state the provisions relied on the Minister failed to do so. The full debate is with ZNBC and also online at www.blogtalkradio.com/politicalcrossfire/.

In a paper titled “Justice on Contract: Judges, the President” published in the Daily Nation (20th September 2013) Mr Munshya wa Munshya argued against the use of contracts as part of the conditions of judges. Although I agree generally with some points he stated, I have found the discussion not helpful at this point in time because of the controversy surrounding the appointment of a substantive Chief Justice. His treatise is too general and does relate to current provisions to buttress the argument that a substantive Chief Justice should not be engaged on contract. It is imperative that the general public understand the arguments for and against so that they may take up positions that are based on the law as it stands today rather than on partisan considerations. By diverting attention from the immediate core issue surrounding the impasse on the appointment of a substantive Chief Justice, Mr Munshya has spoilt what would otherwise have been a useful explanation. The simpler way is to examine the provisions that directly discuss the Chief Justice rather than a general talk about all judges.

There are only nine articles in the Constitution dealing directly with the Judiciary. Of these nine only two address the position of the Chief Justice, namely Articles 93 and 98.

Article 93: this article is the main one dealing with the appointment of judges of the Supreme Court. It has seven sub-articles; and of these seven only three are relevant to the arguments for or against the appointment of the Chief Justice. Article 93(1) is couched in the following terms:

(1) “The Chief Justice and the Deputy Chief Justice shall, subject to ratification by the National Assembly, be appointed by the President”.

Clearly this is the only constitutional way to appoint a substantive Chief Justice. However the Constitution in sub-article (3) has provided what to do when there is vacancy by stating that:

(2) “If the office of Chief Justice is vacant or if the Chief Justice is on leave or is for any reason unable to perform the functions of that office, then, until a person has been appointed to, and has assumed the functions of, that office, or until the person holding that office has resumed those functions, as the case may be, the President may appoint the Deputy Chief Justice or a Supreme Court judge to perform such functions”.

Again clearly this is for administrative convenience so that there is no vacuum but it is NOT intended to be a back door scheme to avoid the Constitution. It is argued that the intention is to make this a temporary arrangement. Sub-article 6, as read with Article 98 states thus:

(6) “A person may ACT as Chief Justice, Deputy Chief Justice or Supreme Court judge notwithstanding that he has attained the age prescribed by Article 98”. Article 98 (1) states that:

“Subject to the provisions of this Article, a person holding the office of a judge of the Supreme Court judge or the office of a judge of the High Court shall vacate that office on attaining the age of sixty five years”, of course provided that the President may extend the period to enable the judge to complete any proceedings still outstanding or where the President extends the tenure to a maximum of seven years.

If there has been a constitutional amendment the Minister failed to cite it! Further, records at Parliament will show several precedents of names rejected at Parliamentary Select Committee stage and other names resubmitted in place of those rejected. So what is behind this insistence on a particular person who is disqualified by the Constitution?

GODFREY MIYANDA,
BRIGADIER GENERAL
HERITAGE PARTY
[24TH SEPTEMBER 2013]