Why the Supreme Court judgement on Judge Chikopa’s Tribunal is rickety

By Brig. Gen. Godfrey Miyanda

INTRODUCTION:In my statement titled “Judging Judge Chikopa” I undertook to make a layman’s analysis of the Supreme Court Judgement.  Regrettably I have not yet accessed the final Judgement. This is an abridged effort based on my recollection until I access the complete judgement. I have limited my discussion only to the following: Article 98 as a Stand Alone provision, Bad Faith and Procedural Impropriety.

ARTICLE 98 AS A STAND-ALONE: The Majority Judgement did not fully address the principle of the separation of powers, the tenure of service and consequently the independence of the judiciary. These must weigh heavily in any action to remove a judge from office, as the safeguard is NOT for the individual judges but for the justice system. RICKETY

The President is the Head of one of the three arms of Government (the Executive).  It is contended that it was never the intention of Parliament to grant the President an unfettered power to decide how to remove a judge by choosing a mode of removal convenient to him.The Majority holding that the President “is free to use any other sources of information” to determine how to deal with a complaint against ajudge does not seem to be the law.This holding is unjustified and dangerous advice to the Executive, especially the current regime whose record of intimidation and intolerance is there for all to see. An examination of the various ways in which a president may be removed will illustrate and fortify my point that the Constitution frowns on short cuts in matters that affect the assured tenure of certain offices.

ILLUSTRATION FROM THE CONSTITUTION (REMOVAL OF PRESIDENT):

The three modes of vacation of the President’s office in the Zambian Constitution are as follows:

  1. INCAPACITY: Article 36 applies where the question of incapacity of the President has arisen; the trigger is a Cabinet resolution that the investigation should be carried out. The Cabinet does NOT have power to remove the President but only to authorise an investigation and inform the Chief Justice; the Chief Justice cannot himself initiate this process. Any short cuts would nullify the actions of the Chief Justice to commence the process of removal.
  2. IMPEACHMENT (Article 37): Impeachment is removal by the National Assembly. The trigger is a motion by at least one-third of all the members of the National Assembly, alleging that the President has violated any part of the Constitution or that he has committed some gross misconduct.  Here again the Chief Justice who is a player in the process cannot act until he receives the resolution of the National Assembly before setting up a tribunal.
  3. VACANCY (Article 38): This inevitably occurs by reason of death or resignation and is not in issue in this analysis.
  4. d.      THE SPEAKER (Article 69 {2c}): The Speaker, the de facto Head of the Legislature, can be removed on a Motion of at least two-thirds of all the Members of the National Assembly. 

Thus we see from these illustrations that none of the two arms of Government (the Legislature and the Judiciary) have an open-ended power to remove the other. This is the consistent intention of Parliament, to preserve the independence and separation of powers, so that none of these institutions have absolute control over the other. I extend this argument to the Presidency.

The President has an interest to serve and is a prospective judge in his own cause. Since the compelling consideration is the protection of the separation of powers, it should not be the President to elect which mode of investigation to adopt. In this case the President elected to use the method that suited his private agenda to accommodate a political scheme, which was to get rid of judges he did not prefer. The Supreme Court should have read into Articles 91 (2) and 98 (3) a mandatory intention or obligation to compel the President to let the Judicial Complaints Authority to investigate judicial complaints.

BAD FAITH:The President acted in bad faith by NOT disclosing the charges to the three judges in his letters to them yet he had pre-determined that they were guilty! The Majority Judgement glossed over this aspect by holding that the President was not acting judicially but executively, which is disputed. Itis contended that the President acted judicially because he considered evidence albeit secretly given to him by unknown persons, and adjudged the three Judges guilty “of corruption and professional incompetence”. By alleging that the judges were corrupt and incompetent the President brought their case under Article 91(2).At a press briefing the President exposed the desires of his heart, which was to quickly ‘paya’ the judges and fill up the Bench with preferred ones, in the same manner he is using bye elections to implement a well-calculated but unconstitutional scheme!

PROCEDURAL IMPROPRIETY:The Supreme Court should have found that there was procedural impropriety when the Minister of Justice mischievously reported to the President a dispute that was alive before the High Court, a Superior Court of Record, thereby circumventing laid down proceduresfor aggrieved parties to exhaust either through an appeal or applications that may be disposed of in Chambers. The Dissenting Judgement referred to the DBZ case;the Majority Judgement was silent on this. The Minister’s interest would and should have been to protect the State interest; and so should the interest of the President continue to be! Additionally, it was procedural impropriety for the President to suspend the judges on the Minister of Justice’s one-sided report, which ought NOT to have been tendered or allowed outside the High Court Rules and Procedures.

Later, and curiously so, the President disowned Justice Minister Zulu when he dismissed him, quipping that “this Minister misled me when he wanted me to fire some judges”! With this voluntary confession we expect the President to stop the Tribunal!

CONCLUSION: It is my opinion that the Majority Judgement is a polite face saver for the Executive generally, but the President in particular. Taking into account the silent majority, I declare the vote of the People’s Court as six to one against the State!

 

GODFREY MIYANDA,

BRIGADIER GENERAL,

PRESIDENT,

HERITAGE PARTY

[13TH MAY 2013]