According to a document submitted to President Michael Sata by the Law Association of Zambia (LAZ), Acting Chief Justice Lombe Chibesakunda aged 70 is occupying her position illegally and continuing to do so is a fundamental breach of the country’s constitution.
This was revealed in an investigative story by theMail and Guardian of South Africa that states that Chibesakunda was “illegally occupying and performing the functions of the office of judge of the Supreme Court.”
The M&G reports that Zambian President Michael Sata is under pressure to dismiss the country’s chief justice following persistent accusations that he is retaining her in the position in breach of the Constitution because she serves his political agenda.
Sata nominated Lombe Chibesakunda (70) as chief justice in June last year. She comes from the president’s ethnic group and is allegedly related to him.
However, Parliament refused to ratify the appointment on the grounds that she was older than the constitutionally prescribed age limit of 65.
In addition, she has now been acting in the post for a year, when the Constitution states that it is not permissible to do so for more than six months.
In a document sent to Sata and key stakeholders in the judiciary, the Law Association of Zambia said that Chibesakunda was “illegally occupying and performing the functions of the office of judge of the Supreme Court”.
“According to the Constitution, [her] current occupation of the substantive position of judge of the Supreme Court is unconstitutional,” the association said. “Furthermore, she is not qualified to act as chief justice.”
Despite the protests, Sata has refused to remove her and has not offered any explanation for his decision. There is a widespread perception that he is retaining her in the post because she is biased towards his government and the ruling Patriotic Front (PF).
Under her leadership, the Supreme Court has nullified a number of parliamentary seats that were the subject of petition by the ruling party, amid criticism from the opposition and civil society organisations. Most of the subsequent by-elections resulted in the vacant seat falling to the Patriotic Front.
About 15 MPs have either resigned or defected to the ruling party since Sata won the 2011 elections. He has been accused of coercing and bribing them, accusations strengthened by the fact that the defectors have been given ministerial jobs.
Law Association president James Banda said that Sata had no regard for the protection of fundamental rights. “We are at great risk of a constitutional crisis. There is no guaranteed protection of fundamental rights, as the person who is supposed to be at the forefront of protecting and upholding the Constitution has no regard for it.”
Given that Chibesakunda is close to Sata, it would be hard to expect her not to rule in favour of the Patriotic Front and its government, Banda said.
“She has not denied [that she is a relative of Sata’s]. We do not expect her to decide any case against the government,” he said.
The Movement for Multiparty Democracy (MMD) remains the biggest opposition party in Zambia, but its parliamentary representation has fallen from 55 seats in September 2011 to less than 40 today, partly because of adverse court decisions.
The combined opposition now holds 82 seats against the Patriotic Front’s 68. But five seats that are currently vacant are expected to fall to the Patriotic Front in by-elections.
Sata has justified the unplanned polls by saying they are part of the democratic system and has publicly told opposition MPs that he would welcome those wanting to work with him to achieve development.
“The situation is unique; we have never had this kind of by-election scenario,” said Nevers Mumba, the president of the MMD, which ruled Zambia for 20 years before losing to Sata’s PF in 2011.
“I will not dwell on speculation [surrounding the chief justice], but it is surprising that the Supreme Court is basing its judgment to nullify our seats on very flimsy grounds. It’s an assault on democracy.”
Mumba accused Sata of trying to wipe out the opposition and create a one-party state, to prolong his stay in power.
The Nongovernmental Organisations’ Co-ordinating Council, an umbrella body of women’s organisations in Zambia, said Chibesakunda had been placed in an awkward position.
“As women, we were initially happy that she was appointed,” said committee chairperson Beatrice Grillo.
“But with these constitutional issues, we are very concerned and feel that the authorities should act now.”
Meanwhile, figures obtained from the Election Commission of Zambia show that the unprecedented spate of by-elections has cost Zambia 100-million kwacha (R180 000), which was not budgeted for.
“This is a governance scandal,” said Sam Mulafulafu, the director of Caritas Zambia, a Catholic organisation seen as a strong supporter of the PF prior to the 2011 elections.
“Anyone looking for evidence of gross abuse of public resources in our country should not look far, given [that] resources [have been] so blatantly plundered through these masterminded by-elections.”
But government spokesperson Kennedy Sakeni said there was nothing unconstitutional about Chibesakunda acting as chief justice.
“Our position as government is that she is there legally and constitutionally,” said Sakeni, who is also the minister of information and broadcasting services. “The president has the constitutional power to appoint anybody to act in any position and this should not be an issue.”