Zambian Open University acting Dean of Law Dr Munyonzwe Hamalengwa says the National Dialogue Forum (NDF) must not destroy the Supreme Court by diluting it with the Constitutional Court.
Government has has proposed a total of 78 amendments to the Constitution at the ongoing NDF, among them that the Supreme Court should be merged with the ConCourt.
But in an interview, Dr Hamalengwa said the two courts were designed for two different purposes and the criteria for selecting judges also differed.
“Do not destroy the Supreme Court of Zambia by diluting it with the Constitutional Court of Zambia in the form of merging the two courts. These two courts were designed to achieve different purposes and the judges appointed were appointed under very different rules encompassing different qualifications criteria”, Dr Hamalengwa said.
“They do not belong to the same class. Just because you are a judge doesn’t mean that you belong at all levels of the court. A Magistrate can’t be a Supreme Court Judge just because she or he is a Magistrate.”
He observed that none of the judges at the ConCourt were qualified to hold those positions.
“Not all judges in the ConCourt would have qualified to be on the Supreme Court while all Supreme Court judges using Article 141 of the Amended Constitution would have qualified to be appointed Judges of the ConCourt. Do not forget that LAZ and John Sangwa, QC were of the opinion that none of the ConCourt judges were qualified under Article 141 to be on the ConCourt. The fact that the judges were positively vetted by Parliament doesn’t mean they were qualified under Article 141. This Parliament like all parliaments can enact unconstitutional laws or appoint constitutionally unqualified persons. Only when and if challenged in court is the unconstitutionality of the law or appointed person become unglued,” he said.
“In Canada, Prime Minister Harper had nominated an otherwise qualified Federal Court of Appeal Judge to be a Judge on the Supreme Court of Canada, but a lawyer found that the Constitution prohibited a Judge from Quebec to be appointed to the Supreme Court under the unique special circumstances and took the matter to the Supreme Court of Canada and the Supreme Court in which that Judge was already seated, ejected that Judge, on Constitutional grounds. That is what is meant by the rule of law. That is what is meant by abiding by qualifications that are spelt out in the Constitution. The Supreme Court Judges could be switched to the ConCourt but not vice versa.”
He said it was premature to debate merging the two courts when the ConCourt was not even operating at full capacity.
“But this debate of combining the Courts is premature. Zambia needs serious background studies and public debate, not the one surreptitiously engaged in by a select and rubber-stamping few, but a transparent system which will discuss and produce evidence as to why the courts should or should not be combined. What is the matter? Is this an indirect way of admitting that the ConCourt is a failed court or what? Why merge the Courts? Has the ConCourt accomplished its mission for which it was set up and is now no longer necessary?” Dr Hamalengwa asked.
“You can’t just wake up one morning and say, ‘Let there be light and light comes’? There have to be reasons. As it is, the ConCourt is not even complete. It is supposed to be constituted of 13 Judges. It only has 7 Judges. We haven’t even experienced how the full complement of Judges allowed under the Constitution would operate. You want to transfer it to the Supreme Court without giving it a chance to fully and competently function to the extent of its possibility! And without serious transparent public input? Let the court operate with 13 jostling Judges, 13 independent and autonomous Judges then later we can publicly discuss whether we should merge it with the Supreme Court.”
Dr Hamalengwa said an easier option would be to disband the ConCourt.
“There is even an easier option. Disband the ConCourt and start afresh. But the Supreme Court should not be diluted with the ConCourt. Another option is to switch the courts. ConCourt judges should be Supreme Court Judges and Supreme Court Judges should be ConCourt Judges with the new ConCourt and its judges becoming the apex Court with the accorded prestige that resided in the Supreme Court. Zambia can start afresh that way,” said Dr Hamalengwa.