APPOINTMENT OF JUDGES OF SUPERIOR COURTS: Ballooning Challenges for an Under-Funded Judiciary

By Isaac Mwanza

INTRODUCTION

The President of the Republic of Zambia, His Excellency Hakainde Hichilema, has made his second round of appointments of Judges of the Superior Courts, which many have questioned for various reasons, including the necessity, prioritisation, experience, expertise, character and regional balancing of appointments.

In this series of articles, we briefly discuss whether the President’s appointments of Judges, including this most recent round, bring with them the promise of a more conscientious, better-performing Judiciary or not.

These articles are not being offered as legal opinions but as a matter of public interest which should elicit or stimulate a vigorous public debate to persuade both the Executive and for Parliament to carefully think through the decisions they make, their impact on Judicial efficiency, and to dedicate more resources to our Judiciary and to our legal system as a whole.

Readers are therefore urged to take this as a contribution by the court of public opinion, and are accordingly invited to add their voices, by way of opinion on any aspect of this article, but especially, to lend their voice to the call to strengthen our legal and Judicial systems as the primary safeguard of our democratic, constitutional and inherent human rights.

IMPLICATIONS ON JUDICIAL INFRASTRUCTURE AND OPERATIONS

An independent Judiciary is an important institution in the delivery of justice and protecting people’s human, democratic and constitutional rights. Without courts that are independent and the judicial system, it would be impossible to uphold these freedoms, rights and privileges in the kind of free society as we enjoy at present.

So far, the performance of our courts has been a source of considerable concern as cases take many years before they are resolved. In the course of these apparent delays, the cause of justice is defeated because the outcomes sought by aggrieved litigants do not deliver the benefits envisaged in the action, due to passage of time.

The usual riposte to such expression of concern about the very slow pace of justice in our courts, has invariably included the complaint by our Judiciary itself that it is chronically short of Judges, judicial and administrative officers, thereby overloading the few Judges in post who are simply overwhelmed by the amount of work they have to do due to their caseloads.

This therefore raises the question of whether the appointments made by President Hichilema are intended to address the many questions and challenges in the delivery of justice, including a shortage of Judges and their supporting staff.

Is this what the President had in mind in making judicial appointments? Do the appointments reflect the President’s choices as reflecting the right priorities, and what shall we expect to be their effect on the Judicial resources and infrastructure?

In less than 2 years since ascending to power, President Hichilema has made a total of 36 new appointment of Judges of the superior courts. Most likely, this is the largest number of Judges ever appointed to our superior courts by any President in such a short period of time.

Unfortunately, and this should be noted with grave concern, that these appointments to the benches of our Superior courts have been made without the corresponding increase in Judicial infrastructure, to support, let alone facilitate, the work of the new judges.

It has been common cause among our Chief Justices, that the Judiciary has always suffered rather grievously from being ill-financed, under-staffed and ill-equipped and has had to make do with the dilapidated Judicial infrastructure around the country.

Adequacy of Judicial Infrastructure is a pre-requisite for reduction of pendency and backlog of cases in Courts. Although the Zambian Judiciary is supposed to be a self-accounting institution by constitutional standards, the primary responsibility of development of its infrastructure facilities rests with the central Government.

It is clear then that President Hichilema has prioritised appointment of Judges of the superior courts against persistent calls to first deal with what had been described as the urgent challenges requiring the nation’s urgent solution in order to enhance the delivery of justice.

The means that we now have Judges of the superior courts who have neither private offices, or chambers, nor do they have courtrooms in which to conduct their hearings or any other work. This is a wholly unacceptable situation which should not have occurred, in the first place.

In terms of infrastructure, the Supreme Court and the Constitutional Court continue to share courtrooms, chambers and office space.

This is unacceptable, because it places the constraint of time on the Judges of our two highest courts who must “watch the clock” in order to give one another time to do their work as thoroughly as justice requires of them.

How can we ensure justice when our topmost Judges must give way to one another to sit in the conference room or wherever it is that they sit, to consider the contentious matters which we put before them for adjudication?

It is a well-known fact that some Judges of the Constitutional Court are now accommodated in the Commercial Court building, located behind the Supreme Court Building. There is very limited space for Constitutional Court Judges at the Commercial Court building and it places undue pressure on their ability to work, and must be brought to an end soonest.

Space must be found where the two courts can operate freely and in accordance with the Constitution and the law. It is remarkable that the Constitutional Court still manages to perform as well as it does despite such obvious inadequacies and limitations in its physical infrastructure.

The Court of Appeal is temporarily housed at the former Industrial Relations Court building in Kamwala which is short of courtrooms. These premises are as unsuitable and patently unsafe when it comes to hearing criminal matters.

There is, clearly, inadequate space for the smooth operations of all our courts, be it the Supreme Court, the Constitutional Court, Court of Appeal or the High Court.

When one visits the Constitutional Court Registry, one has to walk through piles of boxes of files and exhibits which are stored along the corridor for lack of proper storage space. This must be a cause for grave concern.

But these appointments are happening and the process to ratify them will commence soon. Therefore, the next step should not be wringing of our hands, but to take concrete actions.

The first action should be for us to call on President Hichilema to reconsider his decision to proceed with these appointments. If Zambia’s cooperating partners, including the International Monetary Fund (IMF) and World Bank, are truly concerned about prudent fiscal expenditure at a time when discussions are ongoing debt, they must engage the President to reconsider these appointments.

Secondly, we must ensure that Judges, in their current composition, have the requisite environment and tools, to carry on their noble work in the most efficient manner possible.

This means the nation must invest far more in Judicial infrastructure than in filling the vacancies on the Judiciary’s human resource establishment whose efficiency will depend on availability of judicial infrastructure.

CONCLUSION

Considering the situation as laid bare in this first article of the three series, previous Republican Presidents have had difficulty in going on a marathon to recruit Judges to fill vacancies in the superior courts. Two of these Presidents were senior lawyers who appreciated the situation in the Judiciary pretty well.

With this challenging situation still prevailing in the Judiciary, the recruitment of new Judges by President Hichilema will only exacerbate the problem of limited courtrooms, office space and Judges’ chambers.

What should be an urgent judicial business for President Hichilema’s administration of is the completion of construction of judicial infrastructure rather than appointment of Judges to an already limping and ill-funded Judiciary.

(To be continued tomorrow)

[Published by the Zambia Daily Nation, February, 2023]