CONSTITUTIONAL Lawyer Dr Rodger Chongwe State Counsel says the constitution can be amended so that the Chief Justice position should be subjected to an election.

In an interview, Dr Chongwe said to make this happen, there was need to consider certain intricacies like defining who is eligible to vote in such an election.

Dr Chongwe noted that his fellow constitutional lawyer, John Sangwa, had generated this debate by suggesting that the position should be advertised.

“The current debate which has been generated by SC Sangwa about the manner of the appointment of the Chief Justice of Zambia. Under our present arrangement, article 140 of our constitution, gives power to the President to appoint a Chief Justice for this country. And to exercise that power, there is always a recommendation from the Judicial Service Commission to the President that Mr or Mrs should be appointed. So, acting on the advice of the Judicial Service Commission and at times out of his own decision, [he] appoints someone to the office of Chief Justice. And once appointed, he serves under our constitution for 10 years and after 10 years, he can apply for renewal or retire,” he noted.

“The current debate is that instead of leaving the situation as is under article 140 of the constitution, why don’t we amend the constitution such that the Office of Chief Justice when it falls vacant is advertised for occupation by anybody who wants to apply? In other words, why don’t we throw this to the members of the general public to apply for the Office of the Chief Justice? Of course, we say members of the public but we take into account that those applying, those contesting will satisfy the requirements of appointment to that office of Chief Justice. At the present moment it is prescribed by article 140 of the constitution.”

Dr Chongwe, however, suggested that the position be subjected to an election.

“Our system, you have a Chief Justice, and next to him, there is a Deputy Chief Justice. So naturally, the Deputy Chief Justice expects that when the boss retires or resigns, consideration will be made by the appointing authority for that particular post. But it doesn’t always happen that way because there are times when there is no deputy to take over. In that case, then the Judicial Service Commission picks up someone and recommends that name to the President. It may be one or two names, that is what the current position is. So, the idea is why don’t we discard that? And replace it with an election. In other words, the Chief Justice should be subjected to an election for that particular position. What we have to consider, perhaps which will be an amendment to the Constitution first of all will be the electorate; who are the electorate, what constituency is going to elect that Chief Justice?” Dr Chongwe wondered.

“And secondly, are we going to agree that because of the nature of the public office of the Chief Justice, the election should be thrown to Zambia, are we going to have a general election for the Chief Justice? That is impossible and impractical to have an election of that nature. Perhaps if the committee which is appointed to look into this, maybe the practicing lawyers, lawyers who hold a practicing certificate and those who are teaching in our law schools, those would form the electors of a person to replace the Chief Justice who has retired or resigned. So those are the issues that we have to consider.”

Dr Chongwe argued that in other jurisdictions like the United States, Judges of the courts were elected to the offices by lawyers who had been admitted to practice law.

“What has normally taken place is when the Chief Justice retires from his position, the Judicial Service Commission has recommended to the President that his assistant be appointed to that particular post. But the debate is this, instead of taking that route, why don’t we advertise the position of Chief Justice if and when it becomes vacant? There are various schools to that proposition, there are others who would agree that indeed this is the public office, why don’t we throw it to the debate and election of members of the public for that officer,” he said.

“First of all, we will have to discuss who is going to elect the Chief Justice, what is the constituency? Is it the whole of Zambia? Or is it only going to be limited to those that are qualified as lawyers? There are jurisdictions like in the United States where Judges of the courts are elected to those offices and in those States, the electors are lawyers who have been admitted to practice law, so those are the ones that participate in the election of Judges.”

Dr Chongwe said the election of the Chief Justice could be included in the constitutional amendment.

“The issue about the election of the Chief Justice, that could form part of the constitutional document which was approved by the people of Zambia and given to the Patriotic Front. Nine provinces approved and at Mulungushi everybody approved it. We can look at that and see what can be done. What Mr Sangwa is suggesting is that why don’t we have the Office of the Chief Justice elected, if that is the proposal, couldn’t we discuss that together with the document which we already have? It is the same with the debate on the devolution of power. We have a report given to president Sata on devolution of power as is the case in the Western Province, why don’t we make that public? So, we are just wasting time going to the press. Let us be practical,” said Dr Chongwe.

“Let us not waste people’s time, and money, these things we can do within a matter of a few months because we already have a document and they are in the hands of the government. And they have been agreed to by the people of Zambia. Other things that have been discussed for example the abolishment of by-elections which are expensive, that was abolished, the people of Zambia agreed that we should do that. It is in the amended constitution which has not been presented. Everything we are seeing which is impractical of implementation just know that it has already been implemented and it is in the document which is gathering dust at Cabinet Office. It will take time to amend the constitution of Zambia, to amend article 140 to provide for what is being suggested because it is the main law in Zambia. What is happening now is that within the system itself, they get someone to occupy but we are saying that is not competent, you need professional competent persons. This is why a suggestion of election is made.”