It is unconstitutional to appoint Lombe Chibesakunda as Chief Justice- NAREP

STATEMENT ON THE PLANNED REQUEST BY PRESIDENT SATA TO THE NATIONAL ASSEMBLY FOR THE RATIFICATION OF MADAME JUSTICE CHIBESAKUNDA AS NEW CHIEF JUSTICE

It has come to our attention as NAREP that President Sata is planning to or has already submitted the name of Madame Justice Lombe Chibesakunda to the National Assembly for ratification as Chief Justice. Before he takes any further action, it is important that he is aware of the implications of such a move under the current Constitution.

First of all, I should point out that Justice Chibesakunda is like a mother to me and is a dear family friend. I raise my concerns about this development, therefore, as a matter of principle in relation to the action intended to be taken by the executive wing of Government. I am in no way questioning the quality, competence and capabilities of one of Zambia’s renowned judicial minds. I am not even sure Justice Chibesakunda is aware that that the President wants to submit her name to parliament for ratification.

However, the National Assembly has no jurisdiction to determine the candidature of a person that has already passed the retirement age for High Court or Supreme Court Judges as set out in the Constitution. If Justice Chibesakunda was born in 1944 as indicated in her resume, that would make her nearly 69 years of age. Any consideration by the National Assembly of her candidature would therefore contravene Article 98(1) of the current Constitution which stipulates that “a judge of the Supreme Court …shall vacate that office on attaining the age of sixty-five years”.

Looking at the various provisions in the Constitution on the appointment of Supreme Court Judges, it is possible that what the President has in mind with his intended action is Article 93. This states that the Chief Justice and Deputy Chief Justice shall, subject to ratification by the National Assembly, be appointed by the President. However, this would only relate to a person that has not yet reached retirement age. The Constitution also provides that if the office of the Chief Justice is vacant then until a person has been appointed to that office, the President may appoint the Deputy Chief Justice or a Judge of the Supreme Court to perform such functions. This is in fact what the President has already done by appointing Judge Chibesakunda to act in that position. Should he attempt to go beyond this and ask for ratification of her appointment as Chief Justice by the National Assembly, he will be going out of bounds.
A person that has served as a judge of the High Court or the Supreme Court and attained retirement age can only continue to serve in such capacity if the President (and not the National Assembly) permits that person to do so and in such a case, the extension can only be for a maximum period of 7 years. There is therefore nothing stopping the President from extending the service of Justice Chibesakunda as an ordinary Supreme Court Justice up to a maximum 7 year period but submitting her name to the National Assembly for approval as full time Chief Justice would violate the Constitution.

It is of course arguable that a person could continue to serve in an acting Chief Justice capacity for 7 years but this would clearly be an abuse of the law. It seems clear under Article 93(2) that appointing an acting Chief Justice is intended to be temporary and only until a new person is appointed. Notwithstanding­ the obvious qualities of Justice Chibesakunda, the reason why it is not desirable to continue to engage a person to act as Chief Justice after they have reached retirement age (even for a short period) is that this is likely to have the effect of undermining the independence of the judiciary in the eyes of ordinary Zambians. When judges are appointed and they have not reached retirement age, they enjoy what is called security of tenure – meaning they can only be removed if they have committed some form of misconduct and even then, they have to first be subjected to a tribunal hearing before they can be removed from office. Once they reach retirement age, they are put on contracts, meaning their contracts can be terminated at any time. Engaging a person in a sensitive position as Chief Justice on contract goes against the spirit of judicial independence which is vital in a democracy, especially one facing many challenges related to the erosion of freedom of expression. Such a situation should therefore be discouraged.

There are 4 things that can be done to prevent the President from seeking to breach the Constitution should he insist on submitting the name of Justice Chibesakunda to the National Assembly for ratification:

1. An approach can be made to Justice Chibesakunda directly in order to highlight the obvious constitutional problem that this will create in the hope that she will advise the President to withdraw his plans or for her to withdraw her name from consideration.

2. The National Assembly can be lobbied to debate and consider the application when it comes in and to obtain a ruling from the speaker as to the constitutionali­ty of such an action (the Speaker could in fact be approached separately even before the matter is placed before the National Assembly – as both a lawyer and former Judge he should be able to advise the relevant Presidential team as to the legality of the intended action).

3. Court action could be taken by interested parties to obtain a ruling as to the constitutionali­ty of such action.

4. An appeal could be made directly (or indirectly) to the President explaining the constitutional irregularity in the hope that should he wish to continue with the appointment, it would have to be based on the powers he already has in the Constitution to extend the service of the current Acting Chief Justice as a Supreme Court Judge and not as Chief Justice.

Elias Chipimo
NAREP President
3 February 2013

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