Constitutional Amendment Bill may threaten independence of the judiciary if adopted

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The Judges at the ceremony
File:The Judges at the ceremony
The Judges at the ceremony
File:The Judges at the ceremony

A number of international human rights organizations have issued a joint statement warning that the adoption of the Constitutional Amendment Bill in Zambia may threaten the independence of the judiciary.

The organizations are the International Bar Association’s Human Rights Institute, the Commonwealth Lawyers Association, the Commonwealth Magistrates and Judges Association, the International Commission of Jurists, Judges for Judges, Lawyers’ Rights Watch Canada and the Southern African Litigation Centre.

In a statement, the organizations have spoken on the potential impact of the proposed Constitution Amendment Bill on the judiciary.

The organizations have since called on the Zambian government to respect the independence of the judiciary and the democratic principle of the separation of powers.

Below is the full statement

We, the undersigned organisations, are deeply concerned about the impact the Zambian Constitutional Amendment Bill 2019 (the ‘Amendment Bill’) may have on the independence and impartiality of the judiciary, if adopted. Of particular concern are the amendments made to the disciplinary proceedings against judges and the composition of the Supreme and Constitutional Courts.

International and regional standards establish that individual judges ‘may be dismissed only on serious grounds of misconduct or incompetence, in accordance with fair procedures ensuring objectivity and impartiality set out in the constitution or the law’, including ‘incapacity or behaviour that renders them unfit to discharge their duties’ and ‘physical or mental incapacity that prevents them from undertaking their judicial duties.’ To ensure the independence of the judiciary, such disciplinary proceedings must be held by an institution independent of the Executive.

Article 143 (a) of the Zambia Constitution currently provides that ‘a judge shall be removed from office on the following grounds: (a) a mental or physical disability that makes the judge incapable of performing judicial functions; (b) incompetence; (c) gross misconduct; or (d) bankruptcy.’ The Amendment Bill replaces ‘mental or physical disability that makes the judge incapable of performing judicial functions’, with ‘legally disqualified from performing judicial functions.’ The Bill does not set out the circumstances or specific infractions that could lead to a judge being legally disqualified as required by United Nations human rights bodies and mechanisms, and thus violates the principle of legal certainty.

The vagueness of the provision increases the risk of judges being removed on politically motivated grounds and threatens the rule of law and separation of powers.

This development comes in combination with a proposed amendment to Article 144, transferring the ultimate decision to remove a judge from the Judicial Complaints Commission to a Tribunal appointed by the President of the Republic (New Article 144 (3)).

The Amendment Bill provides that ‘the Tribunal is composed of a Chairperson and at least two members, who all hold or have held the office of judge’ (New Art. 144 (4)). The Bill does not specify the current position of any former judge on the Tribunal. This opens up the possibility of the Tribunal being composed of members of the executive and or legislature, which would be incompatible with the principle of the independence of the judiciary.

To comply with international standards, the authorities must ensure that this tribunal is primarily composed of judges, that none of the members are from the legislative or executive branches of the State, and that decisions in disciplinary, suspension or removal proceedings should be subject to an independent review.

Regarding the Constitutional Court, we are concerned about the proposed removal of the positions of the President and Deputy President of the Constitutional Court, without clearly specifying where the powers of the two are to vest in their absence. In addition, the requirement for a sitting bench of at least 11 judges on the Supreme Court and the Constitutional Court is replaced with the significantly vaguer notion of simply requiring ‘an uneven number of judges, as prescribed’.

The IBA Minimum Standards of Judicial Independence provides that the number of the members of the highest court should ‘be rigid and should not be subject to change except by legislation’.

We therefore call upon the President of Zambia and the legislature to ensure that the proposed Constitutional changes are in line with international human rights standards on the independence of the judiciary and the separation of powers.

The Signatories

Commonwealth Lawyers Association (CLA)
Commonwealth Magistrates’ and Judges’ Association (CMJA)
International Bar Association’s Human Rights Institute (IBAHRI)
International Commission of Jurists (ICJ)
Judges for Judges (J4J)
Lawyers’ Rights Watch Canada (LRWC)
Southern Africa Litigation Centre (SALC)

19 COMMENTS

  1. The Zambian judges themselves are very quiet.
    They are more worried about the brown envelopes they get for delivering crooked judgements.

  2. I wish to reiterate what I said before: The PF shouldn’t treat the Constitution like their scrotum which they can knead and scratch whenever there’s any discomfort and expect us to mind our own business because it’s a private matter! Indeed PF is a disaster, I don’t know in which world they live

  3. They don’t care. For them, it’s not about what they can do for Zambia but rather what Zambia can do for them.

  4. This is very constructive criticism. Point at the loophoes and suggest solutions as opposed to wholesale criticism and condemnation. Trust that the power that be take heed. .

    • Why tamper with the document when you do not know what you are doing? The motives are being exposed and that has been the bine of contention all along

  5. It is not even the constitutional amendment bill I am really worried about. It is the nonsense the comments above have shown a lot of Zambians to have. Notice how the attack president Lungu and the PF, because they know we shall call them out for attacking an independent judiciary in the past. Just because their incompetent MPs and President, were duped by lawyers Mushipe and company on the 14 day appeal duration. These international organizations for once have actually put up good recommendations. It is up to our MPs to now debate things like good citizens. I mean all our MPs, from the useless PF to equally useless UPND.

  6. Why have you been quiet all this time and coming out at the 11th hour? You so called learned people are the worst cowards! There is a saying that you have to hit the iron when it’s red hot! You want to always hit the iron when it’s ice cold! Your silence during the NDF was enough consent to the illegalities of Lungu and his PF! It’s too little too late! These guys are as unstoppable as Army Worms!

  7. Nonsense.
    Sovereignty ati shani apo?

    “As many as are of that opinion say Aye”.

    “Aye!”

    “Of the contrary, No”

    “No!”

    I think the Ayes have it, the Ayes have it UNLOCK!!!!!!!!!

  8. Good evening fellow Zambians. Today my white wife elisa and I decided to sponsor a Zambian orphan with her education from primary all the way to university. I now await your insults as that is all we get from this website and yet most of you here cannot even help your own blood relatives. Elisa my swiss whitewife is very forgivin. If i were her i woild have turned my back

  9. When PF goes out of power we start reversing the so called progressive legislation. As if it wasn’t enough that PF has brought the debt levels to almost 100% of the GDP.

  10. I urge the concerned International Human Rights bodies to encourage the Zambian government in accepting an internationally convened justice mechanism, which will build and strengthen the capability of the current discredited legal and justice mechanisms.

    Some Zambian lawyers conspired with some members of the judiciary and illegally deprived us of our belongings, using falsely manufactured, manipulative suits. Which they failed to prove up to now. They stole from us without according us opportunities to be heard and then stalled on concluding their falsehoods. We need the concerned bodies to act on our grievances in the same way they are airing their concerns to the Government.

    We are demanding accountability for gross rights infringements inflicted on us through the Zambian…

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