GOVERNMENT has not failed to appoint the requisite number of judges of the superior courts because it’s a function which is progressive in nature and subject to other factors like funding, the state has submitted to the Constitutional Court.
The Attorney General has further submitted that government has been in office for over four months, but there is no timeframe attached to appointing judges.
This is a matter in which the Institute of Law, Policy, Research and Human Rights Limited has sued the State, seeking an order that the inability, failure or omission by the Judicial Service Commission (JSC) to identify and recommend those who are qualified to be appointed as judges of the superior courts is unconstitutional and therefore, unlawful.
The Institute which has cited the Attorney General as the respondent also wants President Hakainde Hichilema through the Attorney General to fill all vacancies in the superior courts in order to comply with the Constitution of Zambia (Amendment) Act No.2 of 2016 and the superior courts (Number of judges) Acts No.9 of 2016.
The petitioner is further seeking an order of mandamus compelling the JSC to immediately identify and recommend those who are qualified to be appointed as judges of the Supreme Court, Constitutional Court, Court of Appeal, and High Court.
But in an answer filed in the Constitutional Court, February 8, the state argued that the Judicial Service Commission had not neglected its Constitutional duty as the appointment of judges was done subject to the availability of office space and also required funding.
“The appointment of judges is done subject to the availability of office space and also requires funding as judges’ personal emoluments are appropriated from the consolidated fund. Further, it’s is particularly difficult to have the minimum number of judges at each particular moment in time due to retirements, resignation and deaths, coupled with the length of the procedure of appointment of judges enshrined in the Constitution which involve the President, the JSC and ratification by the National Assembly. Further, Article 189 of the Constitution which provides for pension benefits affects the judiciary too. When a judge retires it is expected that their benefits be paid promptly and regularly,” the answer read.
“Where a pension benefit is not paid on the last working day, the judge shall stop work but the name shall be retained on the payroll, until payment of the pension. This entails that the JSC cannot, under such circumstances, immediately fill up vacancies until Treasury Authority is granted in that financial year to pay and replace or recruit as the case may be.”
The state submitted that the petitioner was not entitled to any of the reliefs prayed for or at all because all superior courts were fully executing their Constitutional mandate.
“Government has not failed to appoint the requisite number of judges of the superior courts because it is a function which is progressive in nature and subject to other factors which include but not limited to funding. Further, the Government has indeed been in office for over four months, but there is no timeframe attached to appointing judges. The framers of the Constitution saw it fit not to tie the functionality of a court to the composition of judges by setting a far much lesser number of judges for purposes of sitting and adjudication of matters. All superior courts are functional notwithstanding the composition. The respondent further avers that the JSC is independent and [can] not be subject to the control of a person or an authority in the performance of its functions. The respondent avers that the petitioner is not entitled to any of the reliefs prayed for or at all because all superior courts are fully executing their Constitutional mandate,” read the answer.