Alliance for Democracy and Development (ADD) president Charles Milupi says Zambia needs a Constitution that clearly divides the powers of the three arms of government, ensuring that they are truly independent of each other.

And Milupi says the country needs a Constitution that does not empower the Republican President with powers to appoint, promote and dismiss office bearers of the Judiciary and the Legislature such as the Chief Justice, judges and Speaker of the National Assembly.

Commenting on concerns raised by former judge of the International Criminal Court (ICC) Sanji Monageng that granting immunity to sitting Heads of State and senior government officials was providing fertile ground for leaders to commit crimes with impunity, Milupi said indeed, it did not make sense that the Zambian Judiciary depended on funding from the Executive for its operations.

“The idea of laws is to ensure that countries run smoothly. But what normally happens is that laws get abused and when they get abused, people suffer. The example is Zambia where quite clearly, we have laws that are abused like the Public Order Act. Everybody knows what the law says but the Executive acts against the Constitution and they keep abusing that law. And anyone who abuses any law should be subject to court action so that they can be punished later. But what interferes with that is that the President, who has immunity, all other officials hide under that immunity… when we notified the police on 5th December last year that we wanted to demonstrate, the people who told us not go ahead was the Commissioner of Police, quite against the law. If we had an independent and professional Judiciary, that person should have immediately been taken to the courts of law and be sanctioned in their personal capacity. But this is happening is because of the massive power that the President has,” Milupi said.

“The President has powers to appoint judges, to pay judges, to promote judges, to fire judges and so on, so mostly, you find that these people have to keep looking over their shoulders. So even if you take cases like that before them, even when they are straight forward, it is not always true that you will get a proper judgment. So society keeps getting abused. But the Presidential immunity is supposed to be confined to issues regarding their performance especially on security matters so that they are not hindered in their duties on behalf of the people. It is not supposed to be immunity against breaking laws. So if the President kills someone, no immunity should be involved in that, he should be able to be sanctioned. But sometimes in making decisions, it may be a decision that injures certain groupings of people and the President is protected from litigation arising from both things whilst he or she is in office. However, when you come out of office, that immunity ceases, you can even be taken to court on matters you did whilst you were in office except on matters that hinge on national security.”

Milupi observed that there was need for Zambians to fight for a professional and independent Judiciary that would preside over matters meritoriously.

“In Africa, especially in Zambia today, the reputation of the Judiciary has gone down and one of the major reasons for that is that these people are beholding to the Executive. Whether it is the Chief Justice, the judges, the fact is they are beholding to the Executive. That’s why we have been fighting to have a people-driven Constitution that will be able to divide the powers of the Legislature, the Judiciary and the Executive. So the Judge (Sanji Monageng) is absolutely correct to say that as long as we have, especially where we have this misinterpretation of immunity, the people that suffer are the ordinary ones who have their rights infringed upon, which is unconstitutional,” he said.

Milupi insisted that it did not make sense for the Legislature and Judiciary to depend on the budget of the Executive for their operations.

“The Constitution we seek should be one that frees the three arms of government from each other; the judiciary from the executive, legislature from the executive, so that they can all operate without thinking that there is going to be punitive action against them. But in order to do this, what we proposed in the National Constitutional Conference (NCC) was that you cannot be independent if your funding or the disbursement of funds to you comes from one wing of government. So what we said was the budget itself must be apportioned percentage-wise to each arm of government. If we say for example: the judiciary will get five per cent of the budget, that five per cent should be automatic so that they budget for their own things. We have a situation in Zambia where even furniture is bought by the executive for the judiciary. Vehicles for the judges are bought by the executive. So that ties them, that hinders them. So we want to free them by making them have their own independent budget. Not the money being released by the Ministry of Finance because Ministry of Finance is part of the executive,” said Milupi.

“Similarly, if you say Parliament has got 10 per cent of the budget, they must get that 10 per cent automatically so that they deal with that. And in terms of appointments, appointments must move away from the President, we must have a judiciary commission that deals with matters of promoting within their ranks and so on up to the Chief Justice. Similarly, the Speaker of the National Assembly must be voted for by members of parliament, not on partisan grounds. We see these people continuously looking over their shoulders, what is the President going to say? So these are matters that need to strengthened but it will need honest people, people who don’t want to hang on to positions, people who go into power to sort out this country and part of sorting out this country is sorting out Constitutional Provisions so that the Constitution favours the people.”