JUSTICE Minister Mulambo Haimbe says it is not illegal for the Judicial Service Commission to advertise the position of Chief Justice, but there is need to put in place a legal framework which can guide how this will be done.
But Constitutional Lawyer John Sangwa has wondered why the UPND government is putting brakes on his suggestion to advertise the Chief Justice position.
Speaking during a News Diggers Public Discussion Forum sponsored by the Eden University School of Law and Open Society Initiative for Southern Africa (OSISA), Friday, Haimbe said while Sangwa’s suggestion was a good idea, there was need for a framework to be put in place.
He was responding to a question from a member of the audience, Denis Mulenga, who wanted to know whether government, through the Judicial Service Commission, would be in contempt of the law if they adopted Sangwa’s suggestion.
Haimbe said there was no law in the current provisions which would make advertising of the Chief Justice position illegal.
“[On the question] ‘if you take all the suggestions that have been put forward, the proposals, will you be in breach?’ The direct answer to that is that there are no provisions in the law that would necessarily make taking the suggestion illegal. Nobody has suggested that they are. I think if you listened to me throughout the debate, I have actually commended the State Counsel and everyone else who has come up with these ideas, making the process more vigorous for doing so. I think as suggested by Mr Mulenga, he said ‘you seem to be agreeing a bit with the State Counsel’ no! It is not even a bit. We are saying that in principle, at a theoretical level, this makes a lot of sense,” Haimbe said.
“Please hear me correctly. I am not saying the suggestion does not make sense. However, I am saying that for us to be able to implement it in the manner suggested would need us to put in place a framework which would guide how it is done. For the purposes of selecting the current Chief Justice, our submission is that it is not tenable. Quite rightly, it was observed that we seem to be speaking the same language, I believe that I have answered the question and I have answered it candidly.”
He said there was need to move methodically, emphasising that more stakeholders had to be consulted.
“So what we have here is not a difference in ideas per se, but a difference in how we want the system if it will be implemented. Over and above that, there is the overriding fact that you can’t just take one’s suggestion and then without hearing from the broader perspective, without hearing from the broader section of society, that is all I am saying from a governance perspective. There is need for us to move methodically,” he said.
“We as a new dawn government want to do the correct thing and the question that was asked is how are we going to achieve that? We have an open-door policy, we are receptive to various views and that we want to institute an effective reform programme at Judiciary and review of the constitution and legislation. What more do you want as people than that? That is not to say that the way it has been put now that we appoint the next CJ in this fashion without going through that process is tenable. All we are saying, let us do it in a systematic fashion and we’ll attend to some of the concerns raised by the gentleman from the door who said ‘what is the point of having all this that you put in place and at the end of the day article 140 still allows a huge degree of discretion’. We must move systematically in the interest of posterity rather than in the interest of now.”
Haimbe said there was nothing to suggest that it was currently impossible to get judges of integrity under the current system.
“Taking the leaf that we must trust in the judgement of elected officials, there is nothing to suggest by the way that you cannot get a person of integrity through the process that exists now. One cannot suggest that of all the current judges that are sitting on the bench in superior courts, there is not one of them that does not meet the test of integrity, that would be a misnomer. So, if we were able to get it right in the past with this system, with the judges, all of them…what is to stop us from doing that with this appointment? Nothing. I am saying let us do these things in the due course of time when we have thought them thoroughly, when we have heard from all the stakeholders who will then determine that we want to go this route, rather than we don’t want this in the snap of a finger. We need a framework where we don’t do things willy nilly,” he said.
“Article 130 which the learned stated counsel is relying on to say the laws are already there talks about integrity. It may look simple to all of us that it is a word, but who is going to determine what the criteria are to establish that a person meets the bar of integrity? Who determines how the question of integrity will be answered? You can’t pick it from a vacuum, there has to be a certain criteria. That is why the constitution is a very high document. You can’t say the constitution already provides; you will have a problem with the framework. My point is let us do things properly for the sake of posterity.”
He said not even the President could dictate to the Judicial Service Commission how they should scrutinize a candidate for the position of Chief Justice.
“Let’s us be clear in what is transpiring here, if the question is directed at the Judicial Service Commission, if indeed the law does allow the Judicial Service Commission to put in place the mechanism suggested by the State Counsel, my question is why write to the Republican President? Why not write to the Judicial Service Commission? And say ‘the Judicial Service Commission, the law allows you to do this therefore do it’, do you see where there is a problem here, that is where the Law Association of Zambia talks about this being a directive. It is not for the President to prescribe to the Judicial service Commission and say ‘can you change the way you do things’. He does not have that power, that is where the biggest problem arises from how the suggestion was put forward,” Haimbe said.
Haimbe insisted that it would be a violation of the constitution to prescribe to the Judicial Service Commission how it should proceed on the mode of appointment.
“You will note that Article 140 of the Constitution does not require that the President shall accept the recommendation of the Judicial Service Commission. That is a critical point. You will also note that the constitution will not prescribe the procedures to be followed in the process of engaging a person into Judicial Service, it just provides the general principles. To start with right now, our constitution provides that it is the Judicial Service Commission in itself that will prescribe how it goes about things,” said Haimbe.
“In fact, it will be a violation of the constitution if any one of us would prescribe to the Judicial Service Commission how it should go about the mode of appointment, until there is a provision that allows this to be amended or dealt with in a different way. Whilst we may agree that there is need to build more transparency and in the process of appointment, we have to sit and understand the realities that we are faced with.”
But Sangwa wondered why government was applying brakes on his suggestion.
“There is nothing in the Constitution that bars advertising, there is nothing in the constitution that will be violated if there was an open, transparent competitive selective process for the judges. There will be nothing that will be violated. Doing so will be consistent with article 141 and article 73, that is why I argued in the first place that there is absolutely no need to pass new legislation in order to accommodate that. If you insist that you need legislation, I will still maintain, if someone is sincere with the process, you can have regulations issued to that effect. If people feel that they will be more comfortable of having regulations to that effect, there is nothing that stops them,” Sangwa said.
“I have heard the honourable Minister say something ‘we have to proceed in a methodical way’, I think that for me that sounds like bureaucracy speaking now. I do hope I don’t get to share a platform with the honourable Minister where he is going to tell me that there is nothing wrong with the public order act, because what I am seeing is that him and his government are applying brakes to what is being suggested. Power has already been given to the various institutions of government and power that is not expressly given to the institutions or the persons is a reserve to the people. You do not need to consult the people because the people have already delegated that.”
He insisted that there should be no secrecy in the appointment of the Chief Justice.
“If you had a transparent system, it would allow people that have grievances to be able to step forward and allow the people that have been accused to be able to state their position. My point is that a system like this should not be a secret, it ought to be transparent. There are issues that were raised to say what if we don’t get a good candidate, do you just have to apply to fill up the space even with incompetent and unqualified because you don’t have people?” Sangwa asked.
“I would rather have the office empty than the office being filled up. But I do not believe that after 56 years of independence, we can fail to find suitably qualified people of integrity and appoint them on merit. I will be very disappointed after 56 years of independence. In any case there is no basis for that because we have not tried the system, we don’t know. In any case, nothing is cast in stone, we try it then we change it. What is required here is transparency.”
Sangwa said there was need for the Judicial Service Commission to act in the manner provided for by the Constitution.
“The Judicial Service Commission is still bound by the Constitution and law, the Judicial Service Commission is not above the law and what I am advocating for is that they should act in a manner provided by the constitution. That is where the bone of contention is. There is this question that ‘advertising will lead to integrity’? Yes, I believe so, because you see, if I know that an interview will be done in public, you know the first thing I will do, I will check my life, will I stand public scrutiny, I [will] make my own determination, I check my life and I say fine, I think I am worthy to occupy that office, and I will go for that interview because I have checked my life. But if I check that I have skeletons, why would you occupy the Judicial Office?” he wondered.
“That is why it is important to open up this process, you know guys, we must understand the responsibility that is vested in a judge. A judge stands up to determine my life. Don’t you expect a higher standard from such a person? Why shouldn’t these people be subject to public scrutiny? That’s why I am an advocate of a transparent system.”
He said without transparency and competitiveness in the process, it was difficult to select judges on merit.
“I am saying that the law says there must be people of proven integrity, I would like to know what kind of tests the Judicial Service Commission undertakes to put in place to ensure that only people proven integrity go through. How can you have a meritocracy system that is not competitive? Can you imagine how you can have a merit-based system that is not competitive, that is not open, that is transparent? Can you just imagine how that is humanly possible?” asked Sangwa.
“Plus, when I was writing that letter to the President, I was not directing the President, I have no authority to direct the President to do anything. What I was simply trying to do is to remind the President to avoid the mistakes that his predecessor had made. Urging [him] to do things differently. My plea to the President was that we have a law that is in place since 2016, can we act in a manner that is in consistent with the constitution.”