Statement on the planned request by President Sata to the National assembly for 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.
[pullquote]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[/pullquote]
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:
- 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.
- 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).
- Court action could be taken by interested parties to obtain a ruling as to the constitutionality of such action.
- 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
NAREP, Confirm with NA before making noise.
MORE HEART ATTACK TO THE SATANIST AT PLOT 1
Now this is a proper opposition, not the other guys who just like insulting and starting baseless rumours. This is what we need in our dear country: checks and balances to ensure the interests of the people and constitution are protected. Keep it up, Mr Chipimo: you are what Zambia needs.
is she has any morality..she will refuse..but knowing how some bembas behave..no iota of shame..kaya!
I understand that Michael Chilufya Sata will disolve Parliament if Madame Lombe Chibesakunda is not ratified as Chief Justice.Should this turn out to be true,then PF should Kiss BOMA goodbye as their chances of retaining power are next to NIL.
She is a very peak of the rule of law, let see how unprincipled she can be by accepting such an illegal appointment. To me this is not difficult decision to make, accepting such an illegal appointment will be putting an entire profession and judiciary into disrepute.
What has tribe got to do with this? Incase you did not know Chipimo who is bringing this up is also Bemba. Just use a logical argument not your tribal trush.
This is what is called constructive criticism. Bravo ba Elias. NAREP 2016. I had heard that this appointment would be illegal but typical of the opposition, they could not state how illegal it is.
Just read the Constitution and the Supreme Court ruling where Lawyer Simeza petitioned the Court over the continued stay in office of His Lordship Ernest Sakala as Chief Justice as he had past retirement age which is the same issue with Madame Chibesakunda.
When did the currently PF regime start taking the constitution seriously, in particular if it undermines the PF selfish desire to cling on to power by whatever means??
What power is the PF clinging to bwana. Just wait for 2016 period. Don’t start barking for nothing. I smell some sour grapes in your sentence. Cikali kumibaba na manje. Move on galu iwe.
The president is unwell so who is making decisions now?
Madea that’s serius…who told u
Yourself Madea.
Elias how can you write an article on such an important issue based on hearsay?
Ati Constitution!! What Constitution? Wake up a smell the dry fish. It’s rule by decree / diktat henceforth. Well articulated views though. Let us hope that civil society can pick up the mantle from you Elias.
I will ignore the tribal sentiment of a fellow blogger; I am hoping 2013 will be more of objective blogging than business as usual. That aside, I believe there is a very good point raised here of upholding the laws we brought into effect. It will not make sense to ignore the laid down statutes for political expediency. Let the letter of the law take its course, unless there is a “hidden” amendment on its way.
Very well said. Although there’s probably very little hope that I’ll stop teasing. I promise to decrease my coffee intake. Fingers crossed sneakily behind my back.
“Hold on while I consult with the Minister of Justice who is known to have a fair, balanced, rational and consistent conclusion to a wide variety of non justice issues and is a man of few words with vast knowledge in matters that are well beyond me,” said the constitutionally confused one…
“Let her stand,” said the Justice Minister, “I’m tossing the constitution aside for being a colonial tainted parchment. I’m tossing you aside for forcing me to respond in English when Legalese Double Speak is my new official language.”
Constructive criticism, but before the fear comes to pass, more action is expected of NAREP. This is a correct step in the right direction. Keep it up!
Thanks Elias for highlighting the issues, this is good constructive criticism, i can see patriotism in this, I know govt will listen,esp the mature way that you have presented this issue.Many thanks, keep up the good work.
Elias is right, the law that we ourselvese made is now biting us. Cobra (SATA) should think that the madame has past the retirement age. What jobs will he (SATA) give to the young generation if he want to promote old fox like him? No wonder PF is in a mess and he is the worst President than all his predecessors. What shame and disastor for mother Zambia!!!!!
Zambians r crazy, why do u even qoute the constitution when it doesn’t work in reality, Gov’t jst rock’n’roll bulldozing , leave democracy to the Whites jst continue the rule of the jungle.
its just unfortunate that we have a very weak parliament.Sata knows that his stupid mps will accept his nomination even though its illegal according to the law.Why are we even spending so much money on drafting the constitution which no one is going to follow especially a head of state.Its unthinkable at this time and age of our country that this is still going on.Law is law.What example does a head of state set if he cant uphold the constitution.Do we lack qualified personnel? He did the same with Chikopa and now this.If parliamentalians had any teeth or integrity they would impeach the president
@2 u ar a tribalist and a threat to peace tht we enjoy. NAREP, Good move bt hearsays not good to base on.
Chris Hune has just resigned his public office over a speeding case, can a Zambian MP or head of state resign over similar cases?Do we have any shame or integrity to examine ourselves as public officers who need to be examples of the masses?Any parallels to be drawn here? Just a question because we have people that are being pursued by ACC but still hold ministerial positions.The list is too big, Kabimba, Mwamba, Nchito etc.Can we ever have a clean gvt?
In Zambia they don’t resign for any crime committed, instead they get promoted and transferred to another ministry or have a new ministry created specially for them.
@Chills, with the case at hand, Susan Rice had been nominated by Obama to the office of Secretary of State to succeed Hillary Clinton but on realising that her nomination was going to meet opposition before the senate select committee, Susan withdrew her name. As for Justice Lombe, its not about the opposition, this appointment violets the constitution, basically unconsititutional. Period. Not rocket science to interprate and this is not about semantics.
That is what you get when you go to a proper school. This guy is Oxford University educated and can properly analyse issues. Sata has hardly settled down and he is already spitting his vernom. I honestly do not know what and how to pray for him but I pray that he is going to sober down and do the right thing. Research has shown that when people from 75 and beyond are firmly set in their ways and find it very difficult to learn new things. I believe the old man squarely falls into this category as Guy Scott once said and I quote “You cannot teach an old dog new tricks”.
Ba Chipimo, I am very disappointed with you. Justice Chibesakunda is the first female judge who over the years has been sideline. The previous governments did not consider her in anyway. Now that Ba Sata has considered her you people want to throw in spanners. It is very unfair.
Ba Chibesa you dont correct past ills by illegality. This appointment is unconsititutional bwana. If Sata wants to redress this why doesn’t he appoint a capable woman from the current Supreme court bench whose head fits the cap. No one will oppose that nomination if it meets all the relevant criteria. Where will you draw the line?
It is not the people, it is the constitution. More over why was she sidelined all these years? There’s a reason why. Zambia is not a family venture where you can just break the supreme law of the land to just please one old woman just because she is a woman. There are other women who can be appointed without breaking the law.
We are talking about the constitution here my friend and not friendship…
It is not Spanners iwe. She can be appointed in any other assignment. Chipimo is referring to a specific constitutional provision and not the Mum as an individual. Please let us analyse issues based on facts not emotions. Chipimo is right and let those with ears hear and do the right thing and save our mother from unnecessary court battles. We need development for once.
What do you mean sidelined? She is a former Ambassador.
we shilu we. Its her age that disqualifies her not the spanners yu r takling about. PF used us youths to get into power n we did realise that it will be for the old madalas. Come 2016 you ll see. kuya fye.
Chibesa chitangala ur a headless *****….Not to mention an incompetent fool. Surely yo response shows that u ve poor judgement.. Find sumthin better to do than waste space on this page
THIS IS VERY GOOD. SATA HAS MANY PEOPLE TO CHOOSE FROM. LET HIM APPOINT MUTEMBO NCHITO. I THINK WE CAN HAVE A VERY GOOD AND SERIOUS JUDICIARY
Common, you cant be serious! Mutembo may be DPP, but seriously speaking if the appointment had to be done on merit, there are better brains at Law than Mutembo. I suspect there is a pool from which the Chief Justice can be chosed from and that is from the Supreme court bench. Mutembo is junior counsel compared to some legal minds in the legal fratenity. Unless the appointing authority again contravene’s the constitution in making your suggested appointment, then the country will have him. I can suggest some for you but it would look like I am canvassing for them and they wouldnt be amused. We know them by their fruits… not by their connections.
VIva NAREP, where is Kabimba to challenge these issues, let’s debate. Thanks Ba Elias
It is hard to understand the reason that motivated the president to nominate a person who has reached retirement age to want her to become the CJ. Are there no younger judges? If the ratification in parliament needs a two- thirds majority then the good lady has no chance of getting that post. If she is honourable as we are made to believe then she should humbly turn down the nomination.
so who ratified enesrt sakala because i understand he too was past retiment age, unless the law has changed.
Its ok m******mwe, we shall look for another equally qualified BEMBA !
President Sata swore to uphold the Constitution and the Rule of law, an as such he will not do anything that will undermine his presidency. All this talk is academic because the chief legal adviser Mumba Malila S.C wont comprise his ethos. The Members of Parliament as “Men of Integrity” will not succumb to any political pressure to ratify the CJ and thus violate the Constitution. In view of the foregoing Sata would be on firm ground to dissolve parliament on the ground that parliament has violated the constitution by illegally ratifying a person who has passed retirement age for CJ , and not for other speculative reasons.
I believe Zambians are ready for new polls. It will only be fair for people to renew the governments mandate, because “WE THE PEOPLE” need a “GOVERNMENT FOR…
I am liking the maturity Elias is portraying.
She looks quite young so whats the problem. There is no way she is 65 let alone 69.
one days things will go bad for PF and they will not be in power,,, remember MMD they were big headed when people were telling them,, mark my words
Acutally madam Chibesakunda is retired and only went back to work through a contract. So now we should know how long her contract is and has she been given another contract by Sata though the back door? It is really important to make things clear. Good observation from Elias though!
Now the PF has taught Chipimo how to provide constructive critism. Good writeup!
A serious politician should never engage in RUMOURS! I am disappointed with Chipimo he should know better, rumour mongering will just make him look more desperate and a liar, he should be dealing with FACTS and quote the source, he is not a journalist to hide his source.
Sekeni and your CNP and your families i fear for you thugs,you’ve taken the people of Zambia for granted.Mukachula Sana after we kick you out power in 2016 or earlier as things seem to be at the moment.
Zambia, icalo cabakote and nothing wise comes from their heads.
All Zambian citizens are expected to have some measure of moral and civic responsibility by contributing to the sustainance of peace in this country. If the proposed idea to appoint Justice Chibesakinda for ratification as Chief Justice leads to the violation of the Zambian Constitution, we expect Justice Chibesakunda to demonstrate high levels of responsibility by declining to be used to break the Supreme Law of the land. She is not a junior Lawyer but a very Senior Judge of integrity from whom we expect reason to prevail. Otherwise the rest of the country will speculate negatively on her character.
Impressive peace of analysis.
I am sure that someone is listening; but I doubt that our government understands that kind of a language knowing there past. It may end up falling on deaf ears. Sakeni does not even know what is happening at the state house, he cannot comment on these issues objectively so are the guys saying Elias is acting on hearsay.
Disolving parliament, the president will be disolving himself as president.
Great effort!!!
I agree with Elias Chipimo Jnr that the intended nomination will be unconstitutional,if indeed the President goes ahead. I trust common sense will prevail and the good Judge will decline the poisoned chalice. If she accepts, then we Zambians must rise and defend the Constitution.
Thank you Chipimo for educating me about this appointment. But my President should know this since he is surrounded by Kabimba and other lawyers. I’m sure he won’t make such a blunder
I studed the article by Elias Chipimo on the appointment of the Chief Justice and my observations are that Elias has distanced himself from actively engaging his party into dialoguing with the government.
Instead he wants others to undertake this role when Infact we all know that amongst all the opposition political parties leaders himself Elias and Edith Nawakwi are close to the government, such that if any of the two makes an appointment with government officials over the same issues they would definately be welcomed. Take up the challenge and dialogue.
There is a Nyanja proverb which says, “as you are aware that a dying tortoise scatters fire” and this is a syndrome typical of one named political opposition party here in Zambia.
Literal translation says, “as you are aware that when dying a tortoise scatters fire”.
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Its refreshing to have people with sober and well thought arguments. Can the MMD President reason like this? I very much doubt it. His understanding of opposition is Chacha like popular comments with little substance. Frankly people must change. Zambians of yester year are no longer there. Zambians now are very careful who they want to support. Chipimo is my kind of Opposition leader. Keep up the good works
Pa zed chee.The presido must be advised correctly.