According to the Oxford Dictionary, ‘Incompetence’ is the ‘Inability to do something successfully; ineptitude’. The Longman dictionary defines incompetence as ‘lack of the ability or skill to do a job properly.’ Note that, to be incompetent, it does not matter how many times you fail to do the job successfully. One single act of failure can render you incompetent especially if the job you have failed to do is very important and you are supposedly qualified for it, on paper.
We find this reasoning by the JCC to be illogical. Let us look at what exactly what this single act of inconsistence by the Constitutional Court is.
No need to bore you with details of the presidential petition as the whole country followed that case. Suffice to say that the most important issue in that matter was the interpretation of the 14 days in which the petition ought to have been heard. Indeed, it was the 14 days that determined the fate of the petition. The petitioners did not present their evidence in court because the court said that the time (14 days) in which they should have done so lapsed, expired. This is more like in a soccer match. You can only play within the stipulated time.
But the Judicial Complaints Commission, a government organ that is supposed to enforce the code of conduct of judges and magistrates says the Constitutional Court failed to properly interpret the 14 days. The Judicial Complaints Commission found that the court deprived the petitioners four days from the 14 days. In short, the court only sat for 10 days instead of 14 days to the detriment of the petitioners but certainly to the advantage of the respondents. It’s like a referee in a soccer match blowing the final whistle in the 60th not the 90th minute. There can be deadly riots.
This is the single act of inconsistency that the Judicial Complaints Commission says does not amount to incompetence. We wonder what would amount to incompetence to the Judicial Complaints Commission. Like stated already and as everyone knows, time computation was the most important factor in this case. Time was of essence. The petition was to be won or lost depending on how the court computed time. And for sure, once the court counted the days wrongly, the petition was determined in favour of the respondents.
A person or body does not need to make several or various mistakes in order to be incompetent. One grave act with serious ramifications amounts to incompetence. An employee who causes the company to lose money in one act or omission faces instant dismissal. Judges themselves send to jail convicts who murder, rape or steal only once. The fact that the culprit is a first time offender only serves as mitigation but does not absolve the convicted person. It should not be different for judges who make grave inconsistencies that, as in this case, leave the country polarised. In other countries, such judges would have resigned in shame.
Elias Chipimo, once a respected lawyer but now a political buffoon has been trying to defend the Constitution Court.
“The issue that they (JCC) raised however is that, and this is an issue which there could be a debate; they are saying that the 14 days was properly interpreted but there was a concern to them that the petitioners were denied 4 days. This was because including Saturday and Sunday within the 14 days, while it was correct under the constitution, the fact that the court did not actually sit on Saturdays and Sundays did in some way deprive the petitioners to have more time for the petition to be heard,” said Chipimo.
“However, they did not state that that amounted to misconduct. They were just saying that they should have offered themselves to say ‘we will also sit on these days because 14 days’ finishes on the 2nd of September’.”
It is sad that Chipimo is trying to trivialise the fact that 4 days were removed from the 14 days required to hear the petition. Coming from a lawyer, this is regrettable. We don’t think that depriving the petitioners 4 days from 14 days when time was the most crucial element here should be reduced to a mere ‘concern’ or debate. The constitutional court judges were not expected to ‘offer’ themselves to sit on weekends. Since they counted weekends as part of the 14 days, they were obligated to sit on those days. As things stand, the petition was not heard because the court decided to reduce to 10 from 14 days the time the petition was supposed to be heard. In short, the Constitutional Court owes UPND 4 days. The petition is not closed.
But we do sympathise with the Judicial Complaints Commission. The Judicial Complaints Commission has no real powers to discipline erring judges. It is simply an investigatory body. It can only investigate wrong doing and make recommendations to other entities including the presidency. Now in this case since the so-called president was the suspect, what would you expect him to do after receiving the findings?
The Judicial Complaints Commission should actually be praised for even going to the extent of saying the Constitutional Court was inconsistent. In a country like Zambia where all systems are broken, it is not easy to announce such findings.