By Isaac Mwanza
The Constitution of Zambia has created an “independent” Judiciary which is never free as inferior laws enacted by Parliament have compromised the independence and effectiveness of the Judiciary. I hold these truths to be self-evident that independence and freedom are never the same nor are they part of our country’s separation of powers.
From my reading of the Constitution, the framers of the Constitution did not expressly cloth the Judicial Service Commission (JSC) with power to transfer magistrates or judges. There is no such power in Article 220 of the Constitution of Zambia. In fact, the administration of the Judiciary has been placed under the Chief Justice by virtue of Article 136(2)(a).
Both the Judicial Service Commission and Judicial Complaints Commission fall under the Executive arm and not the Judicial arm of government. In some cases, these Commissions are presided by persons who have never been judges themselves nor magistrates. In other cases, they are presided by lawyers who are active in the practice of law or are retired but had represented clients who lost cases before these same judges and magistrates.
So where does the Judicial Service Commission draw power to transfer magistrates when the Constitution has not allocated it such power? In addition to the functions of the Commission provided under Article 220(2) of the Constitution, Section 6 of the Service Commission Act No. 10 of 2016 provide further functions.
The power to transfer Judicial officers lies in this inferior legislation and such a function is premised on Article 220(2)(d) of the Constitution which states:
“The Judicial Service Commission shall carry out a function provided for in this Constitution, or as prescribed (by an Act of Parliament, in this case Act. No. 10 of 2016).”
I must be quick to point out that Article 1.(1) of the Constitution itself states:
“This Constitution is the supreme law of the Republic of Zambia and any other written law, customary law and customary practice that is inconsistent with its provisions is void to the extent of the inconsistency.”
Reading Article 136(2)(a) of the Constitution which has expressly clothed the Chief Justice with the responsibility to administer the Judiciary, it means that, although Parliament can enact any law under Article 220(2)(d), such a law must never be ultravires the Constitution, in particular Article 136(2)(a), which confers the Chief Justice with a constitutional responsibility to administer the Judiciary.
How come then that we can have subsidiary legislation that grants the power to a Commission to transfer Judicial officers when the Constitution as a supreme vests the administration of the Judiciary in the Chief Justice? Such an inferior law can only be said to be void as it is inconsistent with the Constitution.
The provision of the inferior law and the action by the Commission to use such a law to effect changes in the administration of justice does not only breach Article 136(2)(a) but also breaches Article 122(1)(4) of the Constitution of Zambia which, in part, as reads:
“122.(1) In the exercise of the judicial authority, the Judiciary shall…not be subject to the control or direction of a person or an authority.”
“(4) A person and a person holding a public office shall protect the independence,… and effectiveness of the Judiciary.”
It is my submission that judicial officers and judges have illegally been placed under the control of the Judicial Service Commission and the effectiveness of the Judiciary continues to be breached by transfers of Judicial officers dealing seized with various cases. These Judicial officers are forced or left with no option but to abruptly hand over cases, which cases usually start afresh in some instances.
The Chief Justice has also failed to protect the effectiveness of the Judiciary by continuing to allow the unnecessary transfers of Judicial officers and judges handling cases. The administration of the Judiciary constitutionally lies on him.
Ndipo chakubabani regarding these transfers. What exactly was going on in our respected courts?
Chief justice, what? Have you read the judgments he was involved in? The fellow is either dull or compromised. What does one expect from selected Chief Justice?
Repected courts? Fom tp to ottom, everything usotten.
Even the executive presidency should be done away with. Let parliament elect a president who can easily be recalled should he start misbehaving. You have created a god from among yourselves who grows big legs that straddle across the nation dwarfing all and sundry. Let’s change this Constitution and things will definitely improve.
This matter is ripe for adjudication. The President cannot be transferring judges and magistrates at will.
Spot on Mwanza. Real separation of powers don’t exist in Zambia as the President meddle is the administration of the Judiciary. How can you transfer judges and magistrates from the Judicial arm as if they are your Minisiters whom you can freely deal with?
The Judicial system will never be free because it’s made up of opportunists without backbone to challenge wealthy individuals. These men and women only follow the leader and not lead.
Well if i can appoint them then i have the right to move them wherever i want to… the cry should be to reduce presidential powers so that he no longer appoints the officers of the court because this always compromises the merchanism of separation of powers like my friend above alluded to..there should be a special committee established and supported by an act of parliament to allow for the appointments of magistrates and judges otherwise the president remaining the appointing authority will do things as he wishes..
It’s the worst we have ever seen it under upnd. Their hh is even transferring judicial staff to punish them. Disgusting evil man
The irony is Mwanza sees lack of separation of power now when it suits him. And he decides to Wynn about the transfers and not the rot in the judiciary.
We used to advise you sir that create a country that you will be happy to live in even when your pals no longer hold the levers of power.
Now is the time for that idea country for all will be created. We urge you to support the process. You supported the creation of dirty – you can now redeem yourself by being part of those that are tirelessly working to sanitise it.
Never free because they dont want to be free. They just want fat perks not justice
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