THE Constitutional Court has dismissed a matter in which Livingstone Magistrate Benjamin Mwelwa was challenging the retention or continued occupation of the already-retired judicial officers.

The Court dismissed the petition for lacking merit.

It has ruled that Article 145 of the Constitution, which applies to judicial officers, does not contain a provision prohibiting the retention or reappointment of retired judicial officers.

The Court adds that unlike the restriction placed on judges under Article 142 (4) of the Constitution regarding their eligibility for reappointment as judges after retirement, no such restriction exists for judicial officers.

In this matter, Mwelwa petitioned the Constitutional Court to order that contracts given to already-retired judicial officers must be terminated and any purported salaries or allowances drawn from the revenue of the country be paid back as they have been earning illegally.

He cited Attorney General Likando Kalaluka as the respondent in the matter.

Mwelwa was seeking an order and declaration that the retaining or continued occupation of the already-retired judiciary employees (judicial officers) was not only counterproductive, discriminatory, demotivating, but also unconstitutional.

He also wanted an order and declaration that the retirement age for him just like any other employee in the civil service and private sector who has not signed a contract of employment in which the retirement age is entrenched is to retire at the age of 65 in accordance with Article 145 (3) of the Constitution of Zambia (Amendment) Act No. 2 of 2016 with the option by the employee to retire at 55 years with full benefits and that the directive by the Judicial Service Commission contained in the memorandum dated April 24, 2020 is unconstitutional, among others.

But in a judgement delivered by Constitutional Court Judge Mungeni Mulenga on behalf of other judges, Professor Margaret Munalula and Martin Musaluke, on February 23, 2021, the Court said Mwelwa had not prove that the memorandum of April 24, 2020, prescribed or advanced either a different retirement age for judicial officers or 55 years as the retirement age for judicial officers.

They said Mwelwa had also not cited any constitutional provision on retirement age for the other judiciary staff who did not fall within the category of judicial officers and who were apparently the subject of the said memorandum, hence this claim fails.

Judge Mulenga said Article 145 (3) and (4) of the Constitution provides for the retirement age of a judicial officer as 65 years with an option to retire at 55 years.

“The petitioner (Mwelwa) as a serving judicial officer at the time of the Constitutional amendments was further catered for under the transitional provisions relating to the judicature under Act No.1 of 2016,” Judge Mulenga said.

Meanwhile, Justice Mulenga noted that the Constitution has put a distinction between judges and judicial officers in terms of retirement age.

She outlined that Article 145 of the Constitution, which applies to judicial officers, does contain a provision prohibiting the retention or reappointment of retired judicial officers.

“Thus, unlike the restriction placed on judges under Article 142 (4) of the Constitution regarding their eligibility for reappointment as judges after retirement, no such restriction exists for judicial officers,” Judge Mulenga said.

She also said the retention or granting of contracts to retired judicial officers has not been shown to be unconstitutional as Mwelwa has not cited any Constitutional provision on which the allegation is anchored.

“The claim hence has no legal basis and is clearly misconceived. We dismiss it,” ruled the Court.

“On sum, the petition fails and is dismissed for lacking merit. In the particular circumstances of this case, we order each party to bear their own costs.”