THE Law Association of Zambia (LAZ) has given a second expert opinion stating that the chief justice requires to be ratified by Parliament if he is re-appointed after reaching the retirement age.
LAZ, as a friend of the court seeking to help the bench arrive at a fair decision, earlier gave another opinion from an expert who was of the view that there was no need for a judge reappointed after retirement to be ratified by Parliament.
This is in a matter in which Lusaka businessmen, Faustin Kabwe and Aaron Chungu have petitioned the continued stay in office of Chief Justice Ernest Sakala and Judge Peter Chitengi.
The latest opinion is contained in an application by LAZ honorary secretary, Margaret Chalwe seeking to file the views the association obtained from constitutional lawyer, Eva Jhala.
Ms Jhala said the president could appoint a judge who has attainted the age of 65 for a further period not exceeding seven years.
In her legal opinion on constitutional matters regarding the chief justice and Judge Chitengi’s continued stay in office, Ms Jhala said the discretion of the president was subject to the advice of the Judicial Service Commission.
She said the legal requirement for a judge to vacate office under Article 98(1) was mandatory at attaining 65 years, but the same article qualifies the requirement in the proviso by vesting the president with the legal competence to permit a judge to continue in office for such a period as may be necessary to enable him deliver judgment or do any other thing in relation to proceedings that were commenced before he/she attained that age.
“This means there must be evidence showing pending work and indicating how much time will be required to complete that work so that the president can effectively exercise his legal competence to set the period required,” Ms Jhala said.
She said this permission is derived from the notion that the period would be short to complete existing work and that no new work would be undertaken by the judge during such period.
Ms Jhala said in the second scenario, the president has powers to appoint the chief justice and judge of the Supreme Court under Art 98 and has further power to re-appoint a judge under special conditions, that is a judge who has reached retirement age under Art 98 (1) (b) subject to the conditions laid out in the substitutive appointing provision.
She said any new appointment to office after vacation, for whatever term, should comply with the conditions for appointment and that the National Assembly should ratify the appointment.
The Article maybe used not as an exception to the retirement clause but to circumvent the age of retirement, thereby defeating the intentions of the people in coming up with a retirement age for judges.
“In addition, as stated above, it will be important to take into account the issue of validity in so far as the exercise of judicial competence is concerned during any period that a legal competence was not exercised or improperly exercised.
[Times of Zambia]
“The consequences must be analysed and a solution found even if Parliament has to pass a validation instrument,” Ms Jhala said.
Democracy in Zambia is growing, and we commend LAZ for their boldness in stating their position, this is as it should be. We now await their learned opinion on the acquittal of comrade Chiluba and the subsequent behaviour of the DPP
Nincompoops LAZ
LT can you give us the other opinion from LAZ,what you’ve presented here is exactly what you published the other day from this same Jhala,now show us the verbatim or written submission from the other learned chap from whom LAZ is purpoted to have backpeddled…”The latest opinion is contained in an application by LAZ honorary secretary, Margaret Chalwe seeking to file the views the association obtained from constitutional lawyer, Eva Jhala.
where is the opinion from Chalwe and or quotations from the constitution for us to either debate the issue, better still show us this same opinion even if its not backed up by quotations from the constitution
s t u p i d lawyers. LAZ is a club and for them to give a position it has to be an agreed one on consensus. If Fred requests one laywer who is a LAZ fimo fimo to give an opinion…..does it become an official advice. A bunch of sick criminals. They are the ones causing all these problems in Zambia. they will eat with any one with no shame. they will say anything that comes to their heads depending on the situation. do you expect criminals masquarading as lawyers to give proper advice……
1. Sack the CJ and replace him with Nchito.2. sack DPP and replace him with the other Nchito. 3. Sach AG and replace him with Mmembe. 5. Sack the IG and replace him with Nkole. ……and fire RB and I will take over, Scott for VP and see how a proper Govt should run.
A BUNCH OF CRIMINALS WANT TO TAKE OVER ZAMBIA. OVER MY DEAD BODY.
Yes, LAZ has spoken, but has it got teeth to bite Rupia and MMD?
That will not be long now!
Suddenly they have started talking. i wonder why the interest now, when we expected in other high profile legal cases such as Siliya saga and Chiluba acquital. And this time time, they have not only give their position but have opted to be joined ”as a friend of the court.” Lol!
All jargon to confuse me a layman.
This is just BULL****. We all now that R.B has too many powers and as such makes decissions based on his discretion. Whether LAZ Club advice or not, its politics.
Zed has become ungovernable now.
What is the legal OPNION for LAZ on the behaviour of the DPP and the appeal against FTJ’s mischievious AQUITTAL? Give us a legal fimofimo
Impeachment slowly but surely making some sense.
i wish i could come back n give my opinionn on this matter……but i’m busy pushing for the installation of Airconditioners kuno…its damn hot these ends..
I will never respect LAZ until they redeem themselves over those spoilt ballots during the reign of LPM. It was a real shame on these men and women of the wigs.
John Sangwa was right from the beginning but what was wrong for him to raise this issue as a way of protectuing his criminal clients. If the issue of retirement age was raised independent of any personal interest in a case then the matter is straight forward. Retire the men and bring in new and fresh minds- simple.At times being too long in a job is in itself an obstacle to creative thinking as you cannot teach an old dog new tricks. It sticks to what it knows no matter what and if try to change anything it will bite you. That is your judiciary in Zambia. Bakale!!!
An intersting and indeed sad situation in zambia. Too much poverty pa zed making LAZ and Judicially less helpful
1. “Legal requirement for a judge to vacate office… was mandatory at attaining 65 years, BUT the same article … vesting the president with the legal competence to permit a judge to continue in office… to enable him deliver judgment or do any other thing in relation to proceedings that were commenced before … that age.”
2. “President has powers to appoint the chief justice …to re-appoint a judge under special conditions, that is a judge who has reached retirement .”
3. “any NEW appointment to office AFTER vacation… should comply with the conditions for appointment and that the National Assembly should ratify the appointment.”
CJ reached 65 and should vacate, BUT he was reappointed before he reached 65 so he stays. Thus on attaining 65, he does not vacate. Since he never vacated, he is never a new appointment. If he was never a new appointment, parliament does not validate. The law is a donkey! Who writes these laws?
All very confusing
Whats so confussing about having to get ratification from the NA when appointed. The opinion is clear in the sense that the president has powers to re-appoint a retired judge or CJ under special circumstances, but this does not circumvent the requirement for the appointment to be ratified by the PEOPLE.
Also contained in the opinion to LAZ by the expert Jhala, was that Chiluba does not have to go to parliament to have his immunity restored, becuase he has always had it. Immunity is lifted for specific cases brought before parliament, and once the due process of justice has taken its cause, that it. If I want to sue Chiluba for absconding with my wife, he can still fall back on his immunity. Its was only for the prima facie case of theft of public funds that LPM table in the house.
#17 Realist: If the bloggers on LT are anything to go by, I would rather continue to have older people controlling things. And they shall continue.
LAZ is a silly organisation, how can they, in a space of one week come up with two such opposite positions? You cam see that all they want is money, drag this case as long as possible like they did the Chiluba case. I hate these pathetic creatures called lawyers. If I was made president, I will literally kill them all, and eat them.