Bill 10 a product of PF – Mwiimbu

LEADER of the Opposition Jack Mwiimbu says government should stop lying that the clauses in Bill 10 were engineered by the National Dialogue Forum when delegates have expressed ignorance about where some of the clauses came from.

And PF Deputy chief whip Tutwa Ngulube says if enacted, Bill 10 will create autonomy in the Judiciary.

Speaking during a public discussion organised by the Law Association of Zambia (LAZ), Eastern Province Minister Makebi Zulu said Bill 10 was not a reflection of what Cabinet wanted, but that it was a document crafted by NDF.

“This Bill 10 is not a white paper, it is not a reflection of what Cabinet wants. This is what came out of the National Dialogue Forum, a part of which LAZ was. LAZ the association I belong to participated fully in coming up with this particular documentation. I would have expected that upon the participation of the four members of LAZ, perhaps a report should have been given to the Law Association of Zambia as to what exactly transpired and what exactly was arrived at; and perhaps even before LAZ participated, LAZ should have come up or called such a meeting so that we discuss as members of LAZ and come up with a position on each and every clause,” said Zulu.

“All the provisions we let in the Judiciary were proposed by the Judiciary themselves. So if they were produced by the Judiciary themselves as to how exactly they would like their institution to be run, then it is within the province to be able to respond to the issues as regards to the composition, how it is supposed to be run. This is not a white paper, this is what came out of the NDF proposals that were brought by the judiciary for the purposes of improving their functionality as a Judiciary so these are the proposals that were raised by the Judiciary themselves.”

But Mwiimbu, who is Monze Central member of parliament, said Bill 10 was a product of PF.

“I would like to make one clarification. I have heard my colleague honourable Makebi Zulu saying that this is not a bill for the PF, this is not a bill for government; it is a bill for the NDF. Honourable members in parliament and in this country, there are only two types of bills that are presented to Parliament; government bill and private member bills. This particular bill number 10 is a government bill, it is not a bill for NDF or it is not a bill for LAZ; this is a bill that has been crafted and presented on the floor of the House by the government of the day led by the PF. So let us clear that misconception. And we are also aware that even those who were at the NDF they have argued that some of clauses in Bill 10 were not discussed at the NDF; that is on record. So we cannot say that everything here was arrived at NDF, it is not correct,” Mwiimbu said.

He said Bill 10 would cause problems in the Judiciary if enacted because it did not clearly state the powers of the president of the Constitutional Court.

“Bill 10 is creating a problem even before it is implemented. We should not allow these lacunas which we are deliberately creating. It is not prudent for me to state what is in Bill 10 but I should state what the people of Zambia wanted. The people of Zambia in the quest to cure the problems that are with the Constitutional Court; the people of Zambia had aspired to ensure that the Supreme Court of Zambia becomes the Constitutional Court like what is obtaining in other countries South Africa and other jurisdictions; that is what they have been wanting. Tagging on to what honourable (Tutwa) Ngulube has been saying, we have a problem wHere the Constitutional Court which is according to him is supposed to subservient to the Supreme Court is making final decisions; because you are saying the Chief Justice was not in that court, so it means that they cannot report! But all what you have done is you have just inserted a clause that the Chief Justice shall also be part of the supreme court but you have remained with the President; what will be the powers of the president of the Constitutional Court? You have a president who reports to somebody, to a governor, you are creating another problem in the Constitutional Court,” Mwiimbu said.

“If you wanted to cure the constitution, you should have been very clear pertaining to the jurisdiction; you attempted to do the jurisdiction but you talked about composition without talking about jurisdiction. What will happen now? The Chief Justice will descend to sit in the Constitutional Court? Who will be the head there? It becomes a problem! Because you would have not cured the mischief that was created by the constitution.”

He said Zambians wanted an independent and impartial Judiciary by ensuring that there was transparency in the appointment of judges.

“The issues which my colleagues have been talking about, the issue of saying 14 days visa vis 30 days is neither here nor there; even 30 day may not be enough; even one year may not be enough. It depends on how the judges behave. Even 30 days may not be enough; they may not even conclude, that is not even a solution. The solution is to have an independent and impartial Judiciary and that is what the people of Zambia want,” said Mwiimbu.

“This comes about by ensuring that appointments of those who aspire to be judges is transparent that is what the people have been crying for, not just pasting provisions that ‘no now let us also put the Chief justice then things we change’, it will not change. Even what we are now proposing to start, how we are going to be removing the judges, that is also comprising the security of tenure on the part of the judges and the judiciary has complained!”

And in his submission, Ngulube said Bill 10, if enacted, was going to create autonomy in the Judiciary.

“If you look at article 136 of the 2016 constitution, it says ‘there shall be a Chief Justice who is the head of the Judicary; (2) the Chief Justice shall be, that is 2 (a), responsible for the administration of the Judiciary and in (b) ensure that a judge and a judicial officer performs the judicial functions with dignity, propriety and integrity; and in (c) describe procedures to ensure that the judge and the judicial officer independently exercise judicial duty in accordance with the law. Article (138) says there shall be a president of a Constitutional Court who is the head of the Constitutional Court, [article] (136) says Chief Justice head of Judiciary; 138 says president of the Constitutional Court, head of the Constitutional Court. The President of the Constitutional Court shall be responsible for the administration of the Constitutional Court under the direction of the Chief Justice,” said Ngulube before the event was disrupted.

“So now the question here is if the Chief Justice who is supposed to control the President of the ConCourt is not part of the ConCourt then it will amount to interference; because the same constitution says a judicial officer shall not be interfered with; no one shall control in fact no single person or authority! Bill number 10 is actually trying to create autonomy in the Judiciary by ensuring that the Judiciary is independent. In bill number 10, we are saying not even the president of the ConCourt should be subject to the Chief Justice; we don’t want the president of the ConCourt to be subject of the authority of Chief Justice. We want him or her to be autonomous. Bill number 10 is actually creating an autonomy.”

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