THE Law Association of Zambia (LAZ) has argued that President Hakainde Hichilema would fall foul of the law if he succumbed to constitutional lawyer John Sangwa’s invitation to allow the position of the Chief Justice to be publicly advertised.
But the Civil Society Constitution Agenda (CiSCA) has argued that Sangwa’s proposal is valid, democratic and enhances transparency in terms of meritorious appointment, even if it is not enshrined in the constitution.
In a statement, Sunday, LAZ Honorary Secretary Sokwani Chilembo accused Sangwa of disparaging the Judiciary in his letter to the President.
“The Law Association of Zambia (LAZ) has taken note of a letter from Mr John Sangwa, SC to His Excellency, President Hakainde Hichilema, imploring the President to allow the position of the Chief Justice to be publicly advertised. The said letter, which also disparages the Judiciary, is enjoying wide media circulation. LAZ condemns generalised attacks on the Judiciary as this undermines the Judiciary in the performance of its constitutional function,” he stated.
“The Chief Justice of the Republic of Zambia is appointed by the President upon the recommendation of the Judicial Service Commission (JSC), in line with Article 140 of the Constitution of Zambia. According to Article 216 of the Constitution, all Service Commissions, including the JSC, shall be subject only to the Constitution and be independent and not be subject to the control of a person or an authority in the performance of its functions. In this regard, Section 23 of the Service Commissions Act, No. 10 of 2016, permits the JSC to regulate its own procedure. In regulating its procedure, the JSC is at liberty to adopt a more transparent method of scrutiny of candidates before it makes its recommendation to the President.”
He stated that the President would fall foul of the law if he involved himself in the process JSC should follow in recommending who should be appointed as Chief Justice.
“However, the President, in our view, would fall foul of the law if he succumbed to the invitation, from Mr. John Sangwa, SC, to involve himself in the process the JSC should follow in recommending to the President who should be appointed as Chief Justice. We advise the President to stay clear of the process to be adopted by the JSC in its function of making recommendations to him. Whilst LAZ accepts that a transparent process in the appointment of the Chief Justice and Judges would greatly assist the Judiciary, the suggestions should not take the form of directives from the President. It is imperative that the Rule of Law be followed meticulously so as to strengthen and not weaken vital institutions such as the Judiciary,” Chilembo said.
But in an interview, CiSCA chairperson Judith Mulenga argued that Sangwa’s proposal was valid, democratic and enhanced transparency.
“John Sangwa’s suggestion is valid, democratic and enhances transparency in terms of meritorious appointment even if it is not enshrined in the constitution. It is a progressive move that is of higher standard than what is provided for in the constitution. We all know what is weak in our constitution. There are too much powers invested in the Presidency and Zambian people have been consistent that they would like to reduce the powers of the Presidency and strengthen institutions. So if we have the Judicial Service Commission, why not have that advertised? As CiSCA we do not see anything wrong with that? It is not even over-speaks in what the constitution says. So John Sangwa is a renowned constitutional lawyer so he would not suggest things that would be over-speaks to the constitution,” she said.
“The UPND manifesto and the President is on record that they want to go back to the unfinished business of the constitution. So we all know that our constitution has got problems and that is why there have been attempts even through that diabolical Bill 10 to try and change it, although that one’s aim was not. So the President should show good will that he really wants a reformed constitution and therefore he would support such proposals. What is wrong with applying for a job? What is wrong with advertising for jobs? That is the due diligence that we have to go through so that you make the positions competitive and meritorious. The constitution is a guide. What John Sangwa is suggesting is not contrary and it is not like it is taking away from the spirit of this constitution. It will only enhance what is put in the constitution and it will show the President’s good will towards reforming the constitution. This is one way of devolution of power. Instead of him appointing single-handedly, why not leave it to the Judicial Service Commission to advertise and let people be interviewed?”
Sangwa recently appealed to President Hichilema to allow the position of Chief Justice to be publicly advertised, followed by a transparent process before Parliament ratification.
In a letter addressed to President Hichilema dated October 1, Sangwa described the previous process of appointing judges was a sham as it eroded the independence and integrity of the Judiciary.