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Monday, June 27, 2022

Zambia Judges and the Magistrates Work at the Mercy of the Executive Arm

Columns Zambia Judges and the Magistrates Work at the Mercy of the Executive...


By Isaac Mwanza

No one should necessarily blame President Hakainde Hichilema or the UPND for the manner in which our judges and judicial officers are subjected to work at the mercy of the Executive led by the President. Judges and judicial officers in Zambia constitutionally work and have been placed at the mercy of the Executive arm of Government led by the President and this has always remained one of my points at every Constitutional review that we must change the system.

Quiet fair, Judges are appointed by the President and ratified by Parliament. But these Judges are recommended to the Executive President for appointment by a Commission (Judicial Service) that is part of Executive. The Judicial Service Commission itself does not only work under the Executive arm but is also appointed by the President.

This is the Commission that is used to deal with judges or magistrates around whom the Executive would like to deal with. The Executive had been and continues to toss judges and magistrates around like a bottle-top because the law allows the Executive to do so. Nothing has changed at all. Everything has remained the same as it was in all previous regimes.

We have yet again another Commission (Judicial Complaints) which works under the Executive arm and is responsible for disciplining Judges and judicial officers. This part-of the executive Commission is appointed by the President and recommends to the President to remove any judge or judicial officer.

These Commissions used to appoint and discipline judges will usually have people who have never been judges or magistrates themselves. Some are practising lawyers who usually have audience before the very judges and Magistrates they would later be tasked to discipline. What do you expect of such Commissions? Can people who have lost cases before some judges or Magistrates be expected to be impartial when disciplining these men and women in wigs?

So when we talk to separation of powers in this country, we talk about a concept and not reality until a time when the Courts will begin freeing these Commissions from being under the Executive arm of government to become truly free and independent.

Magistrates and judges did not choose politics but they find themselves dealing with political powers or being labelled political in one way or another. This is sad for our judiciary. Again, I say this is not the problem created by this current regime, it is a problem of having the majority decide what must be in the Constitution and not listening to minority voices.

The truth remains the same that judges and magistrates, like the so called independent Commissions, are at the mercy of the Executive arm of government in Zambia. Amending the constitution is not the lasting solution because it will create further lacunas or procedures. The judges themselves have been given some constitutional authority to ensure that the Constitution is interpreted in the manner that promote our national values, which includes constitutionalism and good governance.

14 COMMENTS

  1. Well said. But problem is not the law but an Executive that takes advantage in the law to abuse judges and magistrates.

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  2. When the Executive damages the integrity of the Judiciary, only the Executive can fix it. The Judiciary is rotten to the core and these transfers are actually a golden ticket to solve the problem. Kambwili guilty then not guilty. Post Newspapers, guilty then not guilty. Etc.

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  3. “…..Judges are appointed by the President and ratified by Parliament. But these Judges……..”

    That is the problem……….

    Lungu was the most corrupt president, and he was a lawyer……..

    Do you think he would leave the judiciary clean ?????

    The judiciary is rotten, needs a proper clean out…………

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  4. That last part, ‘amending the constitution isn’t the lasting solution’.
    What would be then? I would argue very strongly that we need to amend the constitution for effective changes.
    Intergrity, or the lack of it, is the problem with our judicial systems. Even during the KK era, judges were professional and regularly ruled against the state.
    Right now, most people appointed owe the President loyalty, we cannot expected SC Vincent Malambo to be against the President, and we have seen our AG enter consent agreements with UPND supporters.
    A constitutional amendment is needed. Perhaps practicing lawyers should vote for their own chief justice? We need to eliminate the involvement of the president.

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  5. It is not only in the judiciary. Even in the corporate institutions like Zesco, Napsa,ZRA. All these institutions’ corporate governance has been compromised by politicians. No wonder, most of these institutions are run by armatures. Professionals have thrown their skills in a bin of compromise. They do not exert their powers owing to the fact that they are supposed to tow a political line. Failure to do so, they are tossed even by dunderheads. Let us create credible independent bodies that will appoint professionals. No hand from politicians should be condoned.

  6. Zambia saw the worst of that manipulation during the reign of ECL and the PF.
    The dodgy acquittals of Dr Chitalu Chilufya and Chitotela had ECL’s regime written all over them.
    The liquidation of the Post Newspapers involved judges who were pure PF cadres.
    The Author Isaac Mwanza who is well know PF Zealot who should be the last person to point a finger at the UPND govt.

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  7. I cannot believe that the President has a hand in all these bodies!!! Wake up Zambia. This is a slippery slope into dictatorship.

  8. These Commissions used to appoint and discipline judges will usually have people who have never been judges or magistrates themselves. Some are practising lawyers who usually have audience before the very judges and Magistrates they would later be tasked to discipline. This must change…let maybe retired Judges be in these commissions to discipline these judges.
    Constitutional amendment is needed so that the executive does not too much power to control. Again the judges have a constitution to protect but some choose to side with politicians for their own benefit hence the lack of trust in them.
    The time these judges start acting morally then we are going to have a better judicial system not a politically inclined one.

  9. Those wigs! Id they can be controlled by neo-colonialism what stops the president from controlling them?

  10. Those wigs! If they can be controlled by neo-colonialism what stops the president from controlling them?

  11. When we thought things will change, real change, in the new dawn, that’s when things remain the same or getting more worse. So what happened to magistrates who have been transfered? Is that what the President call reuniting with their spouses?

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