THE Judicial Service Commission (JSC) has continued to retain retired Judiciary employees on contract basis when there are many other qualified officers to take up those positions, Livingstone Magistrate Benjamin Mwelwa has submitted to the Constitutional Court.
And Magistrate Mwelwa has argued that the Constitution does not allow judicial officers to be retained on contract after retirement, adding that if other judicial officers can be allowed to be retained on contract after retirement, it will be discriminatory.
He has further submitted that the Constitution of Zambia (Amendment) Act No. 2 of 2016 provides for the retirement age for Judiciary employees, which includes judicial officers like any other public officer in the public service of 65 and 75 years, respectively.
This is a matter in which Magistrate Mwelwa has petitioned the ConCourt to order that contracts given to already-retired judicial officers must be terminated and any purported salaries or allowances drawn from the reviews of the country be paid back as they have been earning illegally.
He has cited Attorney General Likando Kalaluka as the respondent in the matter.
And in his witness statement filed in the ConCourt, Wednesday, Magistrate Mwelwa stated that the JSC had continued to promote those officers, who had already retired while serving their contract at the expense of those officers, who had not retired and qualified to take up those positions being occupied by the retired officers.
“JSC has continued to retaining retired employees in the Judiciary on contract basis when they are many other qualified officers who are not retired to take up the various positions being given to those already retired as can be seen by the memorandum dated April 21, 2020, issued by a chief administrator,” Magistrate Mwelwa stated.
He further stated that they were several magistrates who, after they were called to the Bar, had not been appointed to the positions of Resident Magistrates for a long time on the basis that they were no vacancies, and yet vacancies were being occupied by retired officers.
“Those retired officers are judicial officers, who are performing judicial functions, and yet the Constitution of Zambia does not allow other judicial officers, like judges when they retire, to be retained on contract to continue performing judicial functions,” he stated.
“The retaining of the other judicial officers on contract is unconstitutional as the Constitution does not allow judicial officers to be retained on contract after retirement, and if other judicial officers can be allowed to be retained on the contract after retirement, it will be discriminatory.”
Magistrate Mwelwa further stated that the Attorney General, being the chief legal adviser to government and its agencies, had a duty to advise government, its agencies and service commissions the correct position of the retirement age of 65 years of everyone, who had not signed a contract of employment with the retirement condition entrenched in it, either civil service or private sector.
“The retirement age for public service workers remain 60 years with an exercisable option of retiring early at 55 years, while the late retirement is at 65 years, subject to the consent of the employer,” stated Magistrate Mwelwa.