By Isaac Mwanza
(Continued from yesterday)
In the last article, we focused on the effect of appointing to new Judges on judicial infrastructure and operation. In this article, we examine the emerging pattern in the appointment system of Judges of the superior courts and its subtle effect on motivation and delivery of justice.
ZAMBIA’S PATRONAGE-BASED JUDICIAL SYSTEM
In the recent appointments of Judges of the superior courts, Zambia’s Republican President His Excellency Hakainde Hichilema has appointed fourteen new Judges, twelve of whom will become Judges of the High Court while two will join the Constitutional Court of Zambia, once ratified by Parliament.
Mr Arnold Shilimi, the new appointee to the office of the Deputy President of the Constitutional Court, is most likely poised to take over the Presidency of the Court when the newly-appointed President of the Constitutional Court, Her Ladyship Justice Margaret Munalula, retires in the next few months to come.
One may express some reservations about the President appointing a completely new comer to the Court as Deputy President of the Court instead of one of the sitting Judges who have been on the Court since its inception in 2016 or alternatively, by transferring one of their Lordships and Ladyships from the Supreme Court whose rank is co-equal with their colleagues on the Constitutional Court.
It used to be good appointment practice in the distant past that both promotion and appointment to the bench, followed a hierarchy of seniority by service. Experience in the adjudication process was always rewarding while others entered the side door for good reasons.
The Chief Justice was succeeded by the Deputy Chief Justice; new members on the Supreme Court were promoted from the bench of the High Court; and our magistrates followed the path of Registrar of the High Court before they were seated as Judges of the High Court. One would have served as Director of Public Prosecutions or Director General of one of our law enforcement agencies.
In other words, we always had a good idea who was headed for judicial office by the route they were placed on by His Excellency the President working with the judicial authorities.
Occasionally, the President would appoint members of the bar, our legal practitioners, to the bench. Even in this case, new entrants who had a practical and lengthy feel of courtroom litigation ascended the Judicial ladder on their way to a seat on the Supreme Court. Experience in litigation rather than the time when a lawyer was admitted to the bar as a legal practitioner counted the most.
But appointing authorities, being politicians as they are, have abandoned the path we had previously paved for our Jurists to rise to a Judgeship on our superior courts. We are beginning to see more and more “newcomers” taking up seats on our superior courts without previous experience either on the bench or in the courtroom.
It is now practically possible for a lawyer who was admitted as a legal practitioner many years ago, abandoned or step aside from the practice of law to becoming motor vehicle mechanic, banker, academician, journalist, etc, to tomorrow become Chief Justice or Deputy Chief Justice, President or Deputy President of the Constitutional Court or Court of Appeals, ahead of those currently serving on the bench or with experience in courtroom litigation.
All it needs is a President who has fully developed the art of not listening to anyone, or considering the expectations or feelings of Judges who have gained experience over time, waking up one morning to actualise such a scam and make it appear all normal. This is all done under a semblance of what is called a recommendation from his or her appointees at the Judicial Service Commission and having a Parliament to rubberstamp the decision.
This current practice of appointments has an adverse impact on those members of the bench who are looking to be promoted to higher levels of the Judicial service but who see their path blocked by the appointment of “outsiders” to the bench.
Of course, it may be argued that the alleged newcomers are already serving in some capacity or as legal practitioners employed as company secretaries, directors for legal in some banks or some commissioners, even though they don’t get into courtroom to personally participate in litigation. That’s a lame excuse.
Whatever the case, following an established hierarchy and experience on the bench does have a motivational aspect to it, in that persons who are already in service, can look forward to having their work recognised by way of promotion to a higher level in some form of order, so that everyone feels that they have a more or less equal opportunity of rising in the judicial service.
This author would like to see a return to the old order of our Judges, from magistrates to the Supreme and Constitutional Courts, rising through service and by promotion through the various stages of Judgeship.
The fairness in the justice system, impartiality of a court, and the quality of judgments are determined by how its adjudicators are appointed and the reasons behind such appointment. If a judge is appointed to serve the commands and interests of politicians, who are the appointing authority, the rule of law becomes a laughing stock.
President Hichilema has also elevated two Judges of the High Court to the bench of the Constitutional Court and Court of Appeal, respectively, while Madam Justice Munalula has been elevated to Judge President of the Constitutional Court, which this author considers to be “the people’s court.”
It should be noted that Madam Justice Munalula was previously the Deputy President of the Court and is now ascending by promotion, following the retirement of her illustrious predecessor, her sister Madam Justice Hilda Chibomba.
If we may discuss the work of our courts, there is no doubt that our judges at the Constitutional Court have set a standard for timeous disposal of cases brought before it, and it is everyone’s hope that this will continue.
It is heartening to know that going before the Constitutional Court will bring results in a timely fashion and one hopes that all our courts at all levels, will adopt the working methods of our Constitutional Court to ensure speedy delivery of judgments, within a reasonable timeframe, usually 3 to 4 months at most.
We may say the same in terms of the speedy disposal of cases before the Court of Appeal, where The Honourable Judge Mwiinde Siavwapa has now been appointed to take over the leadership of that Honourable Court. It is noteworthy that the Honourable Judge Siavwapa has been elevated to leadership ahead of his senior colleague, his brother the Honourable Judge Chalwe Mchenga
Of course, the Constitutional Court has been criticised for being vague, lacking clarity and inconclusive judgments in cases that directly hinge on the interests of politicians in power just as the Supreme Court has been criticised for its laissez faire in late delivery of judgments. The case of Katele Kalumba and others should appeal to the conscience of the court that an injustice was occasioned.
One of the duties the President of the Republic of Zambia is to appoint Judges of the superior courts. President Hichilema has inherited a tap-on-the-shoulder system of appointing and promoting Judges which dates back to 1991 but he is a leader who Zambians had expected was to change this practice where judges are appointed for patronage purposes and because of connections rather than merit.
The recent appointments of Judges to the superior Courts by President Hichilema adds to the unfortunate pattern which has established itself, over the years, in which merit, hard work, and experience due to length of service is never rewarded in the Judiciary.
It is apparent that adjudicators of superior courts (and indeed the Subordinate Courts) can only progress and be rewarded only if they are perceived to be singing from the same hymn book with politicians. Under this scenario, justice become tailored to commands and interests of politicians than the law itself. This must change. Zambia must go back to merit-based appointment system of Judges, and indeed judicial officers.
(To be continued tomorrow)
[Published by the Zambia Daily Nation, February, 2023]