CONSTITUTIONAL Lawyer John Sangwa says Deputy Chief Justice Michael Musonda is not the right person to occupy the position of Chief Justice.
In a letter to President Hakainde Hichilema dated October 15, 2021, Sangwa said the Judicial Service Commission was not the right body to recommend a candidate for the Chief Justice’s position.
“Further to my letter of 1 October 2021, I have been made to believe from multiple sources that it is a fait-accompli that the Judicial Service Commission (JSC) headed by Chief Justice Mathew Ngulube will, in line with Article 141 of the Constitution, recommend and that you will appoint the current Deputy Chief Justice, Mr Michael Musonda, as Chief Justice of the Republic of Zambia subject to ratification by the National Assembly. I do not believe that the JSC as currently constituted and headed by Chief Justice Ngulube is the right body to continue to perform this function nor is the Deputy Chief Justice Musonda the right person to occupy the office of Chief Justice given the current state and standing of the Judiciary and the challenges that lie ahead,” Sangwa said.
“My position is founded purely on an ideological premise that neither Chief Justice Ngulube nor Deputy Chief Justice Musonda have embraced the ideals and principles embodied in our Constitution. My position is by no means informed by personal considerations. At a personal level, I have enjoyed a cordial relationship with Chief Justice Ngulube both while in and after leaving office. Whilst in office I was of service to him on a few occasions and since leaving office I have worked closely with him in furtherance of the interest of a number of clients who sought his counsel.”
He said retaining the Judicial Service Commission in its current form under the chairmanship of Justice Mathew Ngulube and appointing Musonda as Chief Justice was not in the interest of the country.
“My personal relationships aside, I believe that to avoid the mistakes of the past and develop Zambia, we must sidestep our own narrow, transient and invariably personal interests and do what is best for the Country. Retaining the JSC in its current form and under the chairmanship of Chief Justice Ngulube and appointing Deputy Chief Musonda as Chief Justice will not be in the interest of the Country: Mr President, in 2016 I was elated by the creation of the Constitutional Court, an institution first mooted by President Kenneth Kaunda in 1991. My excitement, however, waned when the names of persons to be appointed Judges of the Constitutional Court were unveiled,” Sangwa stated.
“It was my opinion then and remains my opinion now that the selected persons did not have the requisite qualifications prescribed in Article 141(1)(b) of the Constitution. Further, no legitimate or transparent process was followed to confirm that they were persons of ‘proven integrity’ as required by the Constitution. In my efforts to inform myself on the actual procedures followed in identifying the nominees, I reached out to Chief Justice Ngulube as chairperson of the JSC. I further consulted senior members of the Bar who enjoy the rank and dignity of State Counsel and people that I thought possessed the qualifications to be appointed Judges of the Constitutional Court but had been left out.”
Sangwa said the appointment of judges to the Constitutional Court resulted in violation of the constitution.
“My understanding of Article 140 of the Constitution is that it is the role of the JSC, guided by the principles set out in Article 173 of the Constitution and sections 3 and 4 of the Services Commissions Act, to identify and recommend to the President the persons, not only with the requisite qualifications, but also of proven integrity to be appointed to the office of Chief Justice; Deputy Chief Justice; President of the Constitutional Court; Deputy President of the Constitutional Court; and Judge of the Superior Courts,” Sangwa said.
“The picture that emerged however, was that a very different procedure to that prescribed by law had been adopted. There was no transparency in the identification of the candidates. In fact, the process was reversed all-together. The JSC was told what to do. Some candidates were not considered, not because they did not have the requisite qualifications, but because they were not liked by your predecessor. The net result was that the appointments were in violation of the Constitution.”
He claimed that former president Edgar Lungu and Ngulube acted in violation of the constitution.
“My understanding of Article 216 of the Constitution is that the JSC is subject only to the Constitution and the law. It must be independent and not subject to the control of a person or an authority in the performance of its functions. The JSC must act with dignity, professionalism, propriety and integrity; be non-partisan; and be impartial in the exercise of its authority. But the evidence I gathered is that both your predecessor and the JSC under Chief Justice Ngulube acted in violation of the Constitution,” he claimed.
“This prompted me on 4 March 2016, to send a 22-page brief to President Edgar Lungu expressing my views on the nominees. I attach a copy of the said brief for ease of reference and to demonstrate that my concerns over the state of the Judiciary far precedes the current conversation on the vacancy in the office of Chief Justice. Your predecessor did not acknowledge my brief and in total disregard of the Constitution, proceeded with the nominations which were in turn ratified by the National Assembly.”
Sangwa said there was need to address the composition of the Judicial Service Commission adding that the sitting President should not have a role in the appointment of its members.
“That the JSC is dominated by government appointees does not help the country’s quest to have an independent Judiciary. As a matter of fact, five of the eight members of the Commission are either appointees of the President or the relevant Minister. In future, and as part of the envisaged constitutional reforms, it may be necessary to address the composition of the JSC so that the President has no role in the appointment of its members,” Sangwa stated.
“In the meantime, and given the importance of the matter at hand, I implore you, Mr President, to reconstitute the JSC before any consideration of the appointment of Chief Justice, and indeed other Judges, can be entertained. Please take this request as an urgent priority. This is because the JSC, which is mandated by law to identify and recommend suitable individuals for appointment as judges to our various courts, has demonstrably shown that it is not beyond reproach; rather the Commission, as currently constituted, is led by men and women who have shown that they are susceptible to political considerations or external influence.”
He said those appointed to serve in the Commission should be independent minded professionals of unquestionable integrity.
“The role of the JSC in relation to the appointment of judges, including the Chief Justice, is even more important than yours, Mr President, which is simply to appoint. It is therefore absolutely crucial that those appointed to serve on the JSC should be independent minded professionals of unquestionable integrity and who have no history of having betrayed public trust in any way. I will leave it to your discernment to decide whether the 8-member JSC, as currently constituted, consists of such individuals,” he said.
“As for the position of Chief Justice, under Article 136 of the Constitution, the Chief Justice is responsible for the administration of the Judiciary; ensuring that a judge and judicial officer perform the judicial function with dignity, propriety and integrity; establishing procedures to ensure that a judge and judicial officer independently exercise judicial authority in accordance with the law; ensuring that a judge and judicial officer perform the judicial function without fear, favour or bias; and making rules and giving directions necessary for the efficient and effective administration of the Judiciary.”
Sangwa said Musonda was not the right person to occupy the office of Chief Justice.
“In effect, the Chief Justice is the administrative head of the Judiciary. The discharge of these functions requires a Chief Justice that has accepted the ideals and principles embodied in the Constitution. The country needs a Chief Justice who will share these ideals with the rest of the Justices and elevate the Judiciary to be the institution that is co-equal with the President and Parliament. A Judiciary that will check itself, the rest of the State organs, State institutions, and State offices. I do not think that Deputy Chief Justice Musonda is the right person to occupy the office of Chief Justice and steer the Judiciary in this direction,” he said.
Sangwa claimed that Musonda did not believe in the concept of separation of powers and checks and balances.
“On 16 April 2021, I moved the Constitutional Court in my own right, challenging sections 3, 10, 11 and 12 of the Judges (Conditions of Service) Act on the premise that they contravened Articles 122 and 123 of the Constitution which guarantee financial independence of the Judiciary. The Attorney General, at the time, indicated willingness to enter into a consent judgment. However, it was my view that a consent judgment could not be settled without the involvement of the Judiciary. I was not in a position to conclude the case without first speaking to the Chief Justice as the administrative head of the Judiciary, since the case touched on the financial independence of the institution. The Chief Justice was not in the office at the time and therefore I attended upon the Deputy Chief Justice Musonda to discuss the development,” Sangwa said.
“The views expressed by Deputy Chief Justice Musonda, which have been confirmed by other Judges, saddened me. Despite the express language of Articles 122 and 123 of the Constitution guaranteeing financial independence of the Judiciary, Deputy Chief Justice Musonda believes that the Judiciary should not be financially independent. In his view, due to some internal challenges, not unique to the Judiciary though, the institution is not ready to be financially independent. In effect, its finances should continue to be controlled by the Executive branch of government. Secondly, and perhaps most astoundingly, Deputy Chief Justice Musonda complained during our conversation that the Judiciary was the only institution under our constitutional order which is not represented in Cabinet. What this demonstrates is that Deputy Chief Justice Musonda does not believe in the concept of separation of powers and checks and balances, the principles on which our Constitution is founded.”
Sangwa said the appointment of the Chief Justice required President Hichilema to rise above personal ties and considerations in the interest of the public.
“Mr President, you have assured the electorate that you will restore the rule of law. To realise that goal you must start by ensuring that we have an independent Judiciary and Deputy Chief Justice Musonda will not aid, but undermine, that goal. Under his leadership, the Judiciary is likely to be a department under your control and not an independent and robust institution that is likely to check on your possible excesses and those of Parliament, National Assembly, and State institutions and offices,” he said.
“Mr President, I know that you and Deputy Chief Justice Musonda have been acquaintances for a long time. He has previously served as your legal counsel including when you purchased Property No. 488a.40/a/3 Serval Road from the National Tobacco Board of Zambia through a public tender in July 1995. Nevertheless, the appointment of the Chief Justice of Zambia requires you, Mr President, to rise above personal ties and considerations in the interest of the public and the need for an independent Judiciary.”
He said due to the personal ties between President Hichilema and Musonda, it was important to ensure the appointment of the Chief Justice was done in an open and transparent manner.
“In fact, given your personal ties to Deputy Chief Justice Musonda, it is only in your best interest, and his interest, to ensure that the process relating to the appointment of the Chief Justice is done in an open and transparent manner to avoid perceptions that you are opposed to such a process because your ally is involved. In any case, if Deputy Chief Justice Musonda has the requisite qualifications and is of proven integrity, or is the best candidate for the position of Chief Justice of Zambia, I am confident that he will welcome scrutiny of his suitability for the role and emerge as such from the transparent process,” he said.
“I therefore do not understand why anybody would be opposed to the recruitment of the Chief Justice through an open and transparent process that would ensure that the successful candidate has been thoroughly scrutinised by the public, to whom the Judiciary is ultimately accountable.”
Sangwa said he did not aspire to ascend to the office of Chief Justice or any judicial office.
“For the record, Mr President, I do not aspire to ascend to the office of Chief Justice nor any Judicial office. Similarly, I do not have a preferred candidate for the office of Chief Justice. That is why I have called for a transparent and competitive process, which is in accord with the principles of public service embodied in Article 173 of the Constitution and gives effect to the national values and principles set out in Article 8 of the Constitution of equity, social justice, equality and non-discrimination; good governance and integrity, in identifying the right candidate to office of Judge of the Superior Courts and to the office of Chief Justice in particular. We must aspire to build a system that gives a fair chance to every person that wishes to serve in any position in the Judiciary,” wrote Sangwa.