Sangwa finally takes Chief Justice to High court

Supreme Court of Zambia

Supreme Court of Zambia

Lusaka lawyer John Sangwa today  (Tuesday) morning filed in a petition in the High Court to have Chief Justice Enerst Sakala vacate office.

The petition is also for Justice Peter Chitengi to vacate office saying the two are in office illegally.

Mr. Sangwa contends that the two’ s contracts were renewed by Late president Levy Mwanawasa in July 2008 without ratification by parliament as required by law.

Last Week Mr. Sangwa petitioned Attorney General Mumba Malila on the issue and gave him seven days to act.

Arttoney General Malila has failed to respond hence the move to the High Court by Mr. Sangwa.

Mr. Sangwa argues that the two senior judges are above the retirement age and should have retired at 65.

The Chief Justice and Justice Chitengi have already been served with court documents.

Below is the retyped petition letter by Mr. Sangwa to Arttorney General:

Our ref: K48/JPS/2009

The Attorney General

Ministry of Justice

Fairley Road

Ridgeway

Lusaka

Dear Sir,

The People v.The Prinnciple Magistrate, Ex-Parte Faustine Mwenya Kabwe

And Aaron Chungu Appeal No. SCZ/8/93/2009

[1] On 29 April 2009, we lodged the above-stated appeal and because of its urgent nature it was heard in Ndola on 2nd June 2009, by a Bench consisting of the Chief Justice, Mr. Justice Peter Chitengi and Madam Justice Chibombo. We understand that Madam Justice Chibombo is acting Judge of the Supreme Court in line with the provisions of Article 93(5) of te Constitution. On 9th July, what was described as the “judgment” of the Court was read by the Chief Justice and our client’s appeal was rejected.

[2] It has now come tour client’s attention that the time of hearing the appeal on

2nd June 2009, both the Chief Justice and Mr. Justice Chitengi had already passed the retirement age of sixty-five stipulated in Article 98(1) of the Constitution, hence not qualified to hold the office f judge of the Supreme Court; consequently not competent to hear and determine this appeal or any other appeal case.

[3]Article 98(1), omitting the parts not relevant to the issues at hand, reads:

Subject to the provisions of this Article, a person holding the office of a

Judge of the Supreme Court — shall vacate that office on attaining the age

Of sixty-five years: (Emphasis ours)

[4] We are aware of the proviso to Article 98(1), which omitting the parts not relevant, reads:

Provided that the President-

(a)     may permit  — a judge of the Supreme Court, who has attained that

age to continue I office for such a period and may be necessary to enable him to deliver judgment or to do any other thing in relation to proceedings that were commenced before him before he attained that age;

(b)    may appoint — a judge of the Supreme Court, who has attained the age of sixty-five years, for such further period, not exceeding seven years , as the President may determine. (Emphasis ours).

[5] These provisions did not allow their Lordships to hear and determine this appeal or any other appeal after reaching the retirement age. If their Lordships are in the office on the strength of proviso (a), it is our view that that proviso only empowers that President to permit their Lordships to continue in office, after reaching the retirement age, only for such a period as may be necessary to enable them to deliver their opinions in appeals, which they heard before reaching the retirement age. It does not allow them to hear and decide appeals after attaining retirement age.

[6] However, if their Lordships are in office on the strength of proviso (b), we admit that under that proviso the President has power to appoint a retired judge of the Supreme Court to another term not exceeding seven years. This is   a fresh appointment which must be ratified by the National Assembly in line with the provisions of Article 93.

[7] So far as we have been able to establish there has been no ratification by the National Assembly of their Lordships’ appointments after retirement. It is our position that the Chief Justice and Mr. Justice Chitengi are holding their offices and performing the functions of the judge of the Supreme Court illegally. They are doing so in violation of Articles 93 and 98 of the Constitution. They were not, therefore, competent to hear and decide our clients’ appeal.

[8]  The allocation of or clients’ case to a Bench made up of the Chief Justice and Mr. Justice Chitengi also violated our clients’ right guaranteed under Article 18(9) of the Constitution. Under that Article our clients are guaranteed the right to a fair hearing before and independent and impartial Court. A panel dominated by retired Supreme Court judges, but in office in violation of the Constitution, cannot be independent and impartial as required by the Constitution. The situation is aggravated when the following factors are considered,

(a)    although the President has the power to appoint a retired judge for a further period not exceeding seven years, the circumstances in which the Chief

Justice and Mr. Justine Chitengi were appointed and the period they are expected to serve are not known;

(b)   their appointments after retirement were not ratified by the people’s

representatives in the National Assembly;

©  without such ratification the judges are serving at the pleasure of the;

President;

(d) given the low life expectancy in Zambia, there is a presumption that

once one has served up to the age of 65, one has given his best both physically and intellectually;

(e) given the high level of unemployment in the country those who have

reached retirement should vacate their officers and create room for

others; and

(f) after all a retired judge is entitled, until death, to 80% of the serving

judge’s emoluments;

[9] Other than violating the Constitution the panel that heard our clients’ case also violated Section 3(2) of the Supreme Court Act, which provides:

The determination of any question before the Court shall be according to

The opinion of the majority of the members of the Court hearing the case.

[10] The Court hat heard and determined our clients’ appeal was made up of three judges of the Supreme Court, the minimum number of judges that can hear and determine an appeal as stipulated in Section 3(1). However, only one opinion was read by the Chief Justice as representing the opinion of the Court. This is in violation of Section 3(2) of the Act. The said Section requires each of the three judges, working independently, to deliver his or her own opinion. It is only after reading the opinion of each judge will it be possible to determine the majority opinion of the Supreme Court cannot, therefore, be pre-determined by the judges in secrete chamber and one opinion delivered. It is for the parties to the appeal and other interested parties to read opinion of each judge and from there deduce the majority opinion of the court of the. Our clients have the right to know the opinion   of each judge that was part of the panel that heard their case. The said provision is meant to benefit our clients and is designed to enhance the independence and impartiality of the Supreme Court

[11] The departure by the judges of the Supreme Court from the provisions of the Section 3(2) of Act;

(a) undermines transparency and accountability within the Supreme Court;

(b) stifles diversity in legal thinking and creativity;

©   violates Article 91(2) OF THE Constitution, which enjoins judges to observe

the Constitution and the law;

(d) curtails development of the law and the legal system; and

[12] If your interpretation of the constitutional and statutory provisions we have referred to is different from ours we have instructions from our clients to move the High Court so that the issues we have raised can be adjudicated upon. However, if you share our interpretation of the said provisions, we would like to know what you propose to do to correct the constitutional and statutory violations we have outlined above.

[13] We would be grateful to hear from you within seven days from date hereof. If we do not we have instructions to move the High Court.

Yours faithfully

Simeza Sangwa & Associates

Cc:       His Excellency the President

His Lordship, the Chief Justice

Her ladyship the Deputy Chief Justice

His Lordship Mr. Justice Chitengi

The Speaker of the National National Assembly

Mr. Faustin Kabwe

Mr. Aaron Chungu

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