THE Law Association of Zambia (LAZ) has given a second expert opinion stating that the chief justice requires to be ratified by Parliament if he is re-appointed after reaching the retirement age.
LAZ, as a friend of the court seeking to help the bench arrive at a fair decision, earlier gave another opinion from an expert who was of the view that there was no need for a judge reappointed after retirement to be ratified by Parliament.
This is in a matter in which Lusaka businessmen, Faustin Kabwe and Aaron Chungu have petitioned the continued stay in office of Chief Justice Ernest Sakala and Judge Peter Chitengi.
The latest opinion is contained in an application by LAZ honorary secretary, Margaret Chalwe seeking to file the views the association obtained from constitutional lawyer, Eva Jhala.
Ms Jhala said the president could appoint a judge who has attainted the age of 65 for a further period not exceeding seven years.
In her legal opinion on constitutional matters regarding the chief justice and Judge Chitengi’s continued stay in office, Ms Jhala said the discretion of the president was subject to the advice of the Judicial Service Commission.
She said the legal requirement for a judge to vacate office under Article 98(1) was mandatory at attaining 65 years, but the same article qualifies the requirement in the proviso by vesting the president with the legal competence to permit a judge to continue in office for such a period as may be necessary to enable him deliver judgment or do any other thing in relation to proceedings that were commenced before he/she attained that age.
“This means there must be evidence showing pending work and indicating how much time will be required to complete that work so that the president can effectively exercise his legal competence to set the period required,” Ms Jhala said.
She said this permission is derived from the notion that the period would be short to complete existing work and that no new work would be undertaken by the judge during such period.
Ms Jhala said in the second scenario, the president has powers to appoint the chief justice and judge of the Supreme Court under Art 98 and has further power to re-appoint a judge under special conditions, that is a judge who has reached retirement age under Art 98 (1) (b) subject to the conditions laid out in the substitutive appointing provision.
She said any new appointment to office after vacation, for whatever term, should comply with the conditions for appointment and that the National Assembly should ratify the appointment.
The Article maybe used not as an exception to the retirement clause but to circumvent the age of retirement, thereby defeating the intentions of the people in coming up with a retirement age for judges.
“In addition, as stated above, it will be important to take into account the issue of validity in so far as the exercise of judicial competence is concerned during any period that a legal competence was not exercised or improperly exercised.
[Times of Zambia]
“The consequences must be analysed and a solution found even if Parliament has to pass a validation instrument,” Ms Jhala said.