By Peter Sinkamba
In Zambia, judges are appointed by the President under Article 140 of the Constitution of Zambia (Amendment) 2016. In the United States, some judges are pointed while others are elected by popular vote.
Following the 2016 Amendment, appointment of judges to fill up new courts that were established has been acrimonious than ever before.
Now, Government is contemplating amending the Constitution. Any time from now, Government may advertise its proposed amendment.
Should Article 140 be one of proposals for reviewed so as to provide for elected judges? Or should the status quo of appointing judges be retained?
The events in the US in the last one month on appointment and election of judges has given us a feel of the two sides of the coin. First, it was the acrimonious appointment of Judge Brett Kavanaugh, a Republican judge, who went through one of the most contentious, partisan, divisive, and polarizing confirmation process, to the Federal Supreme Court Bench.
Then last week, Mid-Term elections were held. Several office bearers were on the ballot, among them, Congressmen and Congresswomen, Senators, Governors, and interestingly, State judges.
A total of 297 appellate court seats were up for election, including 68 supreme court seats, and 228 intermediate appellate court seats.
Interestingly, one Judge lost his re-election bid. His name is Judge Glenn Devlin??a judge in Houston in Harris County.
The Judge is one of the 59 Republican Judges who were replaced by Democrats following the Mid-Term elections.
What did Judge Devlin do thereafter?
One day after he lost his re-election bid, he released nearly all juvenile defendants who appeared before him as long as they answered “no” when he asked if they planned to kill anyone.
“This is obviously what the voters wanted,” Judge Devlin is reported to have said when he released juveniles who have been charged with a wide range of crimes, according to ABC 10.
“If I release you, will you go out and murder anybody?” he asked the juveniles. And if the juvenile said “no”, he released them.
It is not known how many juveniles were released, but the number, according to the outlet, is at least seven — four of whom faced aggravated robbery charges.
The Judge also rescheduled all cases to be heard during the first week of January next year, which is when Democrat Natalia Oakes will take the bench.
In civics, we are taught from a young age that the best form of government is a democratic government where people elect their leaders and officials. In a democracy, citizens participate in this process by voting for president and other offices.
But in Zambia, one branch of government — the judicial branch — often escapes the direct application of democracy through judicial appointments instead of electing judges.
The benefits of having Presidents and MPs appointing judges for life rather than putting their seats up for election have been debated in Zambia since the Mwanakatwe Constitutional Review Commission of 1993. These debates have come from the fact that there are many good and bad consequences of having appointed judges.
Although electing judges makes intuitive sense in a democracy, the appointment method of judge selection most fairly accomplishes the goal of the judicial branch — to read and interpret the law.
Given that direct democracy allows citizens the most control over their government, to elect our judges may seem like the best method of selection. Indeed, judges who depend on re-election to keep their jobs could be friendlier and appear more productive especially towards elections.
Elected judges will endeavour to keep people happy and they will therefore often do what the majority of people in their jurisdiction would think is best.
Unfortunately, sometimes being a good judge means making decisions that don’t make people happy. Clearly, most judges (whether they be elected or not) should not be afraid to make unpopular decisions in court as long as they are in keeping with the law.
However, the application of direct democracy to the court system may lead to some level of majority rule in the courts. While majority rule is a good thing in Parliament and the State House, judicial rulings should be based on objective interpretation of the law. Therefore, judicial rulings must not be influenced by public opinion.
Another reason good reason to support appointment of judges is that Presidents and MPs make judicial selections based on the backgrounds and records of candidates. The assumption here is that background checks will be made from the premise of professionalism not caderism. If cadres take the lead in conducting background checks then the result of careful deliberation and research by the President and MPs is compromised.
Sometimes judges go through the nomination process based purely on their party affiliation — a mistake which encourages political advocacy from the bench instead of ensuring that justice be served in our courts.
The assumption is that when a judge is appointed, the person in charge of that appointment will look at their entire record as a judge rather than just check the background check on party affiliation —- PF, UPND, Green Party, NAREP etc.
Judges should be selected with the intention of being objective and non-partisan, not to implement a particular party’s platform.
So, from the above discourse, what do you think the best way that should be adopted in the next constitutional amendment to guarantee unbiased and fair rulings in our courts?
Which mode of adoption should be enacted as the best standard method of judicial selection?
As stated above, judges should make decisions they believe to be fair, regardless of whether public agree with them. No doubt about it, the public expect judges that make rulings based on independent interpretations of the law and make the best decisions.
The question is: should we trust our highest elected officials to appoint these officials? If so, what fool-proof system should be put in place to guarantee that only the most qualified candidates take up these positions?
The second question is: what system should we devise which, on one hand is dependent on the consent of the governed, and on the other hand ensures deliver of justice without being controlled by public opinion during election season, and party cadres after the elections?
The Author is the President of the Greens Party in Zambia
The current system is OK.
The problem is that the presidential powers in other regards need to be reduced to balance the judiciary and executive.
The current ConCourt disaster where Lungu appointed his under-qualified friends, drinkmates, wives friends into the highest court of appeal to throw out any unfavorable case.
This a good reason why we urgently need to amend the constitution to allow some judges need to be elected & all judges have to be vetted like in USA & RSA.
Then the judiciary can be truly independent.
Let’s not ALWAYS copy & paste. This rubbish were the USA legalizes homosexuality & you copy. The USA legalizes ganja suddenly you open debates about ganja. How useless can we be? Can’t we also open our own fresh debates that look at our own situation? In Zambia today the Judiciary is like any other government office. Because of low salaries judges, like any other civil servant, are looking for extra cash. Meaning decisions they make can be influenced by the highest bidder. So let’s start from there then you can say which is the best way to appoint them because either way has flaws.
The current system is compromised,judges appointment in my view should pass thru parliamentary judicial subcomittee, were the judge ought to be grilled and a vote by parliamentary committees to rectify the appointment.
Appointed and approved by Parliament.
You can’t have all PF judges, will end up all courts behave like ConCourt.
In case of appointments on Judges,the federal government of US on appointment of Justice Kavanaugh and Matt Presby shows how leaders vests their trust for others people’s service for them to execute their duties well.Federal Justice defended Justice kavanaugh on several allegations purported to him.The hottest one was on sexual abuse. Trump did sit back on it. He made sure that his interest is done according to the national justice guidance institute.
As the matter at hand,in 2014 Justice Chibesakunda bemoaned the irregularities conducted by Judicially.Corruption by the lawyers and Judges, especially in high court. (Mutombo Nchito)parliament for long bemoaned over judicial reforms.In 2016,ECL responded by created effective policies for Judiciary and Con-Court came into a being.This has…
And then ECL is screw!ng up the Same court!
Mr. P ilock
Can you please stop using your IQ of 6″ to reason?
The biggest problem is the 1 appointing the same judges, the ones appointed do bit meet proper required qualifications of a judge, it’s no surprise what do you expect to come out from a failed lawyer!!!!
The problem began when Mwanawasa appointed Ernest Sakala as Chief Justice instead of elevating David Lewanika who was the Deputy CJ at the time. Since then the appointment of judges has been questionable. The Cartel did further damage and now our judiciary is in a quandary. It’ll take time to heal the judiciary, if at all that will happen
Both methods have their inherent drawbacks but then again don’t have elected judges in a largely ill educated country where voters decide based on tribe or other flimsy reasoning.
Please wait before you comment! We first need to get input from our learned PHD holder, Bonehead Mushota!!! So please hold your horses.
Sinkamba had smoked weed?
What Sinkamba smokes is immaterial here. Elections in Zambia cannot produce the best qualified candidates for the job because voters DO NOT use a standard yardstick or checklist to determine the best. Similarly, appointments by the head of state in an underdeveloped country like ours is questionable because of partisan and cadreism considerations by selfish greedy leadership bent on ensuring by all means its continued hold to power. We need to lessen bias as much as possible. For now I’ve only known of the parliamentary subcommittees (and Auditor general) that really try to get to the truth on each task. We need to strengthen such institutions (including others) and entrust them with these national nominations based on prior agreed upon/known checklist criteria.
#6Trump, while we are waiting for Mushota, PhD, may I add another suggestion to the topic? I propose that Cabinet be elected by universal adult suffrage. This should spare us the appointment by our Presidents of the likes of Bowman Lusambo to minister, and oh yes the appointments of ifilubi as ministers.
And of course extend this to opposition political parties, for how can you have GBM as running mate, which means an accident at the polls could easily confirm such a corrupt scoundrel and GBV agent as Vice President of the country?
USA is to Crocodile as Zambia is to Lizard! To make a fair comparison, we must be mindful of the huge differences between Zambia and the US! Power in the US is decentralized through a Federal System while in Zambia, power is Centralized and Personalized in the President! Remember that the root of all evils is abuse of Power! Balance and separation of powers is the starting point. The Executive must not appoint the Judiciary! Secondly, we must abolish Chiefdoms! Zambians should have one identity and that is Zambia regardless of ethnic extraction the way Tanzania and Botswana have done! Our national NRC institutionalizes Tribalism and that defeats everything. Voters must have minimum grade 12 certificate to vote! The vote of a degree holder should count more than that of a grade 12! Once we…
Once we put these fundamentals in place, we can safely elect our Judges! An educated voter is an informed one! An illiterate voter destroys a nation! An illiterate voter is ill-informed about governance issues and the illiterate voter tends to vote for a song, party ligalia or a bribe! Education is still the key to building a well-informed, safe and prosperous nation! This is also the only way to incentivize the citizens to take education seriously! Education enlightens the mind! Education is not merely the mastering of facts but the creation of a working mind!
Well said!!!
Trump@6: …and wait for Sharon too to spew her inchohencies!
Very True!!!
140. The President shall, on the recommendation of the Judicial
Service Commission and subject to ratification by the National
Assembly, appoint the—
(a) Chief Justice;
(b) Deputy Chief Justice;
(c) President of the Constitutional Court;
(d) Deputy President of the Constitutional Court; and
(e) other judges.
Refer to 1.2 above. Instead of these politicians talking nonsense all the time and trying to look important, the new law is quite progressive.
Zambia should design its own template of appointing judges.What might be applicable to other nation might not apply to our judicial environment.I feel powers should be given to Judicial Services Commission to have a go in appointing judges.It’s composition should be structured in such a way that only prominent judges from commonwealth should sit on the panel.
When they are appointed,they should be subjected to interviews so that they articulate judicial vision they have for country.Presidents should not have a hand in appointing judges so that there is separation of powers between the judicially and executive.Appointment of judges by presidents undermines the powers of separation.
Judges must be elected and not appointed by the president. If appointed by the president, Judges will be biased and will never deliver free and fair justice. The appointed Judge will always work out what is best to please his or her boss who in this case is the president. We need to have a free and fair, independent Judiciary especially the supreme or con court. Look at what is happening today with the layers in Zambia. Equally with the Electoral Commissioners of Zambia must be elected by the Parliament using two third majority vote.
Today’s Judiciary is a mockery.
The current system is compromised,judges appointment in my view should pass thru parliamentary judicial subcomittee, were the judge ought to be grilled and a vote by parliamentary committees to rectify the appointment.
Judges should be elected but by a non partisan statutory body which is not influenced by the executive such as LAZ and not only by few members such as the executive committee which might be easy to compromise but by the general membership so there will be no chance of bias. That way they won’t have allegiance to one person or even a small group of persons but to the population at large.
James Skinner CJ reminded the then President back in 1969 that it is one of the functions of the judiciary to criticise the actions of the Executive,or its individuals, when the need arises so the courts can effectively carry out their duties. Appointment of judges by an independent judicial appointments commission is a good way towards enabling this as adopted by the UK in 2005.
judges are threatened by the president and shuuuuuuuuuuuuuuuuuuuushu…. they are human beings ….why die for a piece of sleazy law when you have eternal life to inherit. skinner was threatened ny UNIP under Kaunda and Ngulube was bribed by Chiluba, Sakala under under siege by Banda……… Chitabo was threatened by Davies chama… Lungu dared Concourt to go kenya way… bane in African leaders are dangerous,merciless and vicious .
Staying away from leaders is better than daring them… you can die for nothing … above all this life is vanity and you dont need to fight back….