By Sean Tembo – PeP President

1. For a country that is so politically charged like Zambia, it is usually difficult to differentiate between those men and women who have integrity and a backbone to stand up to what they do not agree with, and those who are merely politicking. There are several people that stood up to the previous regime and challenged the atrocities that where then committed, and yet some of those people have suddenly gone quiet and are unable to stand up and challenge the atrocities being committed by the current administration. To me, anyone exhibiting such double standards is very far from a national hero. They are mere political puppets who challenged the previous regime, not out of principle, but so that they can help usher in the current regime, and eat with them.

2. For a country that is so short of true heroes, it is refreshing to identify those individuals and institutions that have maintained their firm stance towards the current regime with the same vigor and tenacity that they did with the previous regime. Among the individuals that l can point at as the real heroes of our time is Lady Justice Professor Munalula, State Counsel John Sangwa, Civil Rights Activist Dr. Sishuwa Sishuwa, the Catholic Church, Hot FM, and perhaps Transparency International. In my considered view, these are the true heroes of our nation, as they have demonstrated that they have the stomach to stand up for what they believe in, with the same vigor and energy regardless of whether they are dealing with the current regime led by Hakainde Hichilema or the previous regime led by Edgar Lungu. That is the definition of a true statesman or woman.

3. For instance, in the previous regime, Lady Justice Professor Munalula had the courage to depart from her colleagues and give a dissenting judgement in the case of Dan Pule etal Vs Attorney General, to the effect that that President Edgar Lungu was not eligible for a third term, at a time that it was not fashionable for the courts to issue a judgement against a sitting Republican President. Fast forward to 2022 under Hichilema’s regime, Lady Justice Professor Munalula again had the courage to depart from her colleagues and gave a dissenting judgement in the case of Sean Tembo Vs Attorney General, to the effect that President Hakainde Hichilema needed to be compelled to declare his assets, at a time when it is not fashionable for the judiciary to disagree with the sitting President. Now, you do not necessarily need to agree with her rulings, but the mere fact that she has an independent mind and is willing to exercise it, qualifies her as one of the reigning stateswomen of our time.

4. The same can be said about State Counsel John Sangwa, who was a constant pain in the behind of the previous regime. However, when the current regime was ushered into office, he did not hesitate to point out their wrongs, despite the fact that he assisted to sway public opinion which ushered them into office. Same applies to Sishuwa Sishuwa who is fearless and upstanding in identifying wrongs and pointing them out.

5. However, the same cannot be said for certain individuals and institutions in our country. For instance, when Dr. Denny Kalyalya was Governor of the Central Bank in the previous regime, his quarterly monetary policy media briefings were pointed and hard hitting. He did not spare or mince his words about the treasury’s poor fiscal management, which was undermining his job to manage monetary policy. I always used to marvel at his fearlessness in pointing out the failings of boss; the Minister of Finance. It was in fact the first time l heard a BOZ Governor admitting that the exchange rate was being supported through the off-loading of dollars on the market by the Central Bank, and that our foreign reserves where dwindling at a faster pace than we could sustain. I thought to myself that this man is extremely objective and independent minded. Suffice to mention that, just like most objective and independent minded officers in the previous regime, Dr. Denny Kalyalya was subsequently unceremoniously fired as BOZ Governor.

6. However, you fast forward to the current regime, President Hichilema decided to re-appoint Dr. Kalyalya as the Central Bank Governor. However, he appears to have returned not as the sharp, objective and independent minded BOZ Governor that we knew in the previous regime, but as a timid praise singer who sees nothing wrong with fiscal management of the current regime. He is even on record supporting the increment of fuel prices and removal of electricity subsidies. Which competent and sober-minded central bank governor across the entire world would support a 50 percent increment in a key production input such as fuel? This new turn of events seriously casts aspersions on whether he used to challenge the previous regime as a matter of principle, or whether he was merely playing politics and helping to usher in the then opposition UPND into office, and that his re-appointment was in fact a reward for a job well done.

7. Of course, Dr. Denny Kalyalya joins the ranks of several other individual activists and institutions whose stance on economic management, good governance and the rule of law only applied to the previous regime, but have now turned a blind eye to the incompetence and atrocities of the current regime. Political leaders are being reported to far flung districts by UPND cadres and Police bundle them like luggage and dump them there, yet none of these previously vocal activists have uttered a single word to condemn those gross violations of basic human rights. These include Laura Miti, Pilato, Chief Mukuni, Prime Television, Mast Newspapers etcetera. For these individuals and institutions, instead of focusing their energy on holding the current Government accountable to the people, they are possessed with fighting a dead PF. Clearly, from the word go, these appear to have been politicians disguised as professionals, traditional leaders, civil society activists and media houses. An objective and independent minded individual or institution will stand firm on their principles regardless of whether the President is Edgar Lungu, Hakainde Hichilema or indeed Sean Tembo.

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.