LUSAKA, 18th MAY 2012
ICJ concludes mission in the case of suspension of 3 Judges in Zambia
On 30 April 2012 President Michael Chilufya Sata of Zambia suspended, pending possible removal, 3 judges namely Judge Philip Musonda of the Supreme Court of Zambia, Judge Charles Kajimanga and Judge Nigel Kalonde Mutuna both of the High Court of Zambia.
He thereafter appointed a 3-man Tribunal chaired by a judge of the High Court of Malawi, Justice Lovemore Chikopa to inquire into the matter and within two months, recommend to him whether or not the judges should be removed from office.
The other members of the tribunal are former judges of the High Court of Zambia, namely, Justices Mwanza and Ndhlovu. Following concerns about this matter and its impact on the independence of the Judiciary and relations between the Judiciary and the Executive, the ICJ sent a fact-finding mission to Zambia between 16 and 18 May 2012 to understand the circumstances leading to the suspension, the forces at play and the impact of this development on the independence of the judiciary.
The ICJ delegation met many stakeholders and other persons interested in the administration of justice.
The ICJ team that was composed of the following:
1. Justice Moses Chinhengo formerly of the High Courts of Zimbabwe and Botswana and ICJ Commissioner), as Head of the Delegation;
2. Justice Qinisile Mabuza of the High Court of Swaziland;
3. Justice Thomas Masuku formerly of the High Courts of Botswana and Swaziland member of Advisory Group – Centre for Independence of Judges and Lawyers (CIJL) and interim coordinator of the African Judges Forum (AJF);
4. Thulani Maseko a human rights lawyer and ICJ Consultant, and
5. Arnold Tsunga the Africa Director of the ICJ Africa Programme.
The ICJ noted that the suspended judges are very senior members of the Bench whose integrity and dignity has not been questioned before. The ICJ also noted that the matter has been handled in a manner that has created potential for a serious strain in relations between the Judiciary, the Legal Profession and the Executive in a manner that does not augur well for judicial independence and harmony in the administration of justice.
The matter has also provided an opportunity for public expressions on the state of the administration of justice in the country in a way that has placed the judicial institution into public scrutiny, if not potentially into disrepute.
While such scrutiny is not a problem, the readiness and enthusiasm with which some leaders in government for example the Minister of Justice have commented on this development is of concern.
The Minister is quoted in the press as having used phrases such as judiciary is panicking or judicial dictatorship.
Also of concern is the fact that the Minister addressed the media on matters that are sub-judice in a way that is hostile and potentially contemptuous of the judicial process.
“The ICJ encourages all those involved to exercise restraint as the process unfolds in order to avoid a situation where the public feels that there is political encouragement to attack the judicial organ or the judiciary is forced to invoke contempt proceedings in a manner that may escalate the situation. Leadership and restraint is encouraged during this difficult time” said Justice Moses Hungwe Chinhengo, ICJ Commissioner.
The ICJ reiterates that it is important for any judiciary to depict qualities of independence and accountability in the administration of justice.
While the ICJ may not be opposed to legitimate expression of opinion on judicial accountability, such expression must have regard to due process requirements of international and municipal principles on judicial independence and the Rule of Law.
The ICJ believes that judicial officers, as servants of the people, are like all other institutions of the State, subject to the law, the Rule of Law in particular, and should carry out their judicial functions in accordance with the law.
The ICJ hopes that due process and constitutional guarantees will be followed to ensure that the process is consistent with fairness and that it is not used to undermine the independence of the Judiciary in the Republic of Zambia, as has been the case in other jurisdictions within the region.
The ICJ will continue to closely monitor the situation and will, as may become necessary, engage all stakeholders to assist in ensuring a fair, speedy and satisfactory resolution of the matter.
For further information, please contact the ICJ Arnold Tsunga at [email protected] or +27 73 131 8411 or +27 11 024 8268. Director- ICJ
Africa Regional Programme