LUSAKA lawyer, Kelvin Bwalya has defended the appointment of acting Chief Justice Lombe Chibesakunda maintaining that President Michael Sata acted within the provisions of the Constitution when he appointed her.
In a letter dated August 26, 2013 addressed to Law Association of Zambia (LAZ) President James Banda, Mr Bwalya said the President was on firm constitutional grounds and advised the association against litigation.
He said based his argument on Article 93(6) which states that “a person may act as Chief Justice or Supreme Court Judge notwithstanding that he/she has attained the age prescribed by Article 98.” The Judges’ current retirement age was 65.
Mr Bwalya also dismissed assertions by some lawyers that the Chief Justice could not act for more than six months pointing out that Judges were excluded from the definition of who may not act for more than six months.
He quoted Article 139(2) of the Constitution which says “In this Constitution, references to offices in the public service shall not be construed as including references to the office of the Supreme Court and of the High Court, and to the offices of Chairman, Deputy Chairman and Members of the Industrial Relations Court.”
Article 93(3) of the Constitution states that where there was a vacancy in the office of the Chief Justice, “the President may appoint the Deputy Chief Justice and a Supreme Court Judge to perform such functions.”
Mr Bwalya further observed that the appointment was in conformity with the Constitutional provision and questioned why LAZ was opposing the Presidential appointment which was firmly anchored on the law.
Arguing against litigation, Mr Bwalya observed that LAZ had no case but some of its members wanted to proceed with litigation for the sake of driving their point.
He said the President could not be sued under Article 44 (4) of the Constitution because he was protected by Article 43, the Attorney General also could not be sued because he was not the appointing authority while the acting Chief Justice could not be sued otherwise the matter would become too personal as she was just appointed
“At this point, what will the Zambian public be thinking of LAZ? Mr president, and members of the council, this is not our fight. This is so out of character for our association. What do we really want? To set two arms of government against each other?” asked Mr Bwalya in his letter.
“With respect I think I speak for the silent or absent majority members of our beloved association when I say this is one fight we do not need.
“In my view, we respectfully advise the President on areas of concern, but to go to court for the sake of going to court is not only ill-conceived but a sure way of getting the Zambian public against ourselves,” he said.
PROFILE OF ACTING CHIEF JUSTICE
Date of birth: 5th May 1944
Qualifications:
1969: Barrister at Law, Grays Inn UK
1969: 1st Appointment State Attorney (August)
1969: First woman lawyer in Zambia
1973: First woman Solicitor General in Zambia and Africa
1991: Post graduate diploma in international law, Austria National University
WORK EXPRIENCE
State advocate 1969-1972
1975-1977: Ambassador to Japan
1977 -1982: High Commissioner to the UK – Ambassador to the Holy Sea
(Vatican) and the Netherlands
1982-1986: Chairperson Industrial Relations Court
1986 -1994: High Court Judge Lusaka
1994-1997: Judge-in-charge Copperbelt, Luapula, Northern and North
Western provinces
1997: Supreme Court Judge
June 14, 2012: appointed acting Chief Justice
What would one expect from this crook,he is a beneficiary of the clan.this guy is in the same league as GBM,jimmy fingers,charley sex,mulenga sata and them.
So the praise on the master is not genuine but to attract the attention of the master
The man has quoted the constitution and you bring in your rhetoric. Let LAZ responds by quoting the constitution. Clan/tribe is not an issue and its a pity it has become part of the vocabulary in our blogs. Do we all need to change names to advise those opposed to the Govt? Let’s debate with sanity beloved people!
Folks I have looked at the Zambian constitution document volume 1 pdf on http://www.parliament.gov.zm/downloads/VOLUME%201.pdf pages 273 – 277. Kelvin Bwalya is absolutely wrong up to the certain extent. Articles 93 to 98 allows the president to appoint a judge of Chibesakunda ‘s status and age as CJ provided that parliament ratifies them according to the dictates of article 93(1). Article 93(1) stipulates that “93. (1) The Chief Justice and the Deputy Chief Justice shall, subject to ratification by the National Assembly, be appointed by the President.” From this article alone it is clear that the president erred in letting Chibesakunda to continue acting as CJ despite being rejected by parliament.
Based on this fact I find the President (SATA)guilty of breaching the constitution.
To futher the argument, all the articles quoted by Kelvin hinge on article 93(1). Unless article 93(1) is satisfied all subsequent articles (94-98) do not in their own right give the president power let an appointee CJ rejected by parliament to continue to execute the duties of a CJ.
Gents this is not ROCKET SCIENCE! You can only believe what Kelvin Bwalya is on about if and only if you are a Citongo as the BASHILUBEMBA have said.
Sata made the same mistake in appointing the CJ as he made to dethrone Sosala and caused confusion in Lubemba chiefdom. Fortunately the wisdom of the Bashilubemba thwarted his incredulous mission. It is our hope that in the case of the CJ LAZ ‘s wisdom will also prevail and force the president to rescind his decision and appoint another CJ who will be accepted by parliament.
I thought its HH who is illegal …? On another note, did HH wed his wife or was just chibwantu ceremony?
Did you know that at one time Kelvin was suspended from practising Law by LAZ due to unearthical practices with his clients.He operated in one Office at DBZ building.This boy is just a crook.
So she doesn’t even have a masters degree
I believe if this learned woman was Tonga there could have been some peace and total silence on this matter. All the same she is just “Acting” otherwise she has credential to hold the subject High Office, jealous-down! Let just pray for the President to soon and wisely appoint someone from the East again. It seems like LAZ is nostalgic about the former Easterner Chief Justices Ngulube and Sakala, good luck!
Well said Mr Bwalya. So the useless LAZ has no point. What an organisation!!! It seems even LAZ has been dragged into political issues of hate, tribalism and corruption. Shame!!
These are pertinent constitutional provisions that have been pointed out in support of the appointing authority. I am sure the group litigating are equally aware of these provisions.
The question then is: what is the real motive behind such a lawsuit?
It should be differentiated between extention of office after attaining age 65 and being appointed to a higher and new office after age 65. To qualify for new judicial office, one should satisfy the age limit of 65. Justice Chibesakunda may continue as Supreme Court judge up to age 72 [ the Presodent may grant a further period not exceeding seven (7) years] because she had already satisfied the criteria to occuppy office as Supreme Court Judge at the right age [ before she was 65]. As it stands, she does not satisfy for substantive position of Chief Justice – a new office! She may only do so in an acting capacity, but for how long is the question. It certainly must be reasonably and equitable and should conform to best practice and in the beneficial interests of the People, Zambians.
LAZ is fighting for HH
Only HH? What about the rest? Mwapya haisa haisa. He is really giving you sleepless nights and we are behind him . . . . .
Mr Bwalya has has put this case to rest.LAZ is now a laughing stock.Its a non starter.The court will not act since the Presudent can not be sued no matter what
KBF MARSHALS. Your Perculiar and outwitting understanding of the Law Makes you very Outstanding from the Ill conceived And Limping Bandwagon. Council us in truth our Fearless and Learned council. And let the ill concieved die with Envy and Shame. As a right Standing Council, who stands for right of us the Majority but always absent at such magnified fora and less learnerd of the Law, please Stand in for us for true and impartial justice and protect our rights and incovinience of our President from thse trying to trample us, either in there right or being used. You have Demonstrated that not only are you a true Law Marshal but the New Ichibumba as well. Long live your spirit, long live such great Men. Aluta Continua!
@Prince Chiwasha; Well you are of the views held by Bwalya and others and against those views from LAZ and the rest, it is very imortant to look at the issue with open mindedness:
1. Bwalya, Chibesa kunda and Sata are tribesmate, because of this it is possible that Bwalya is defending the appointment using disguised tribal attachments. Bwalya is Bemba who may also be PF sympathiser while LAZ is composed of many more tribes.
2. Parley SELECT committee refused to ratify the appointment of CJ Kunda which is one the reasons as to why another person can be appointed by Sata. Yes parley has not debated and voted over it, but still Sata can change the person.
3. LAZ and others are not to appoint but Sata to do that again. Unless ratification is for mere rubber stamping; let him change……..
4. No one hates the CJ lady but LAZ & others wants her accept the concerns of the people over her appointment and do what is honourly for her profession.
5. It is Sata to choose another name not LAZ & others, so let do just that period.
All the more reason she’s only acting. It’s the prerogative of the president to appoint who he wishes and it’s not true that the three are tribesmate. You people cannot differentiate between people from Luapula and Northern. There are ushis who come from the lunda empire and bembas who come from the luba empire. Even their customs are totally different.
Kelvin is an embatled lawyer. His ethics over the yrs has proved the man is nothing but shell and it would take pages to go through the character of this fellow. His only hope is political redemption. All he wants is a job from Sata perhaps taking over Nchito who may be dropped together with the entire cartel for standing in the way of Sata
@ZP
He maybe an “embattled” lawyer but he has cited the actual provisions of our constitution in support of such an appointment.
He is not giving a personal view but what that law says
if you are not a neandertal, give us your views pursuant to constitutional provisions.
Let LAZ also come out and give us their own interpretation of the law. Where are they basing their arguments?
He has the blessing of Sata to cause confusion in Laz. Sata thrives in confusion because he is a king confusion.
Have you seen the cv,she is hot.
cv is not the matter.
God can make unqualified to be qualify.
what we need is the principles of respect a human.
if she has principles no problem but if she doesn’t then she is a criminal because she is getting money from us illegally
.
What is hot about that CV? It is just a mere question of “in the land of the blind a one-eyed person is king”.
Surely if Sata and Bwalya are keen on having a Bemba to fill that position they can recommend a younger one of their kin from the bench. Zambians will not raise a finger because tribalism is the life-blood of this disgraced regime.
Kevin is contradicting himself first of all the woman is 69 years old way past 65
secondly she was reappointed after being rejected.so that in itself doesn’t mean
she should continue to act, with any good reason . and the law is very clear on that about not recycling rejected individuals. lastly there are so many qualified individuals who deserve to be considered too
LAZ, there’s a challenge from the embattled lawyer which he has almost well researched. Now give us your view of Kelvin’s letter n we want it now
kekekeke, the matter as it is now is subjudice, meaning its now before the Courts of law, alemona kwati nilillya KBF alebosha ba Magistrate no kubalembela ama judgment acquitting his clients. For now let him serve his suspension from the Association quietly and wait for his fate by the Disciplinary Committee…….. Ala
LAZ and its members killing each other in the public. WHO is WHO?
Bwalya join us to finish Euro Bond,intepret the law jargon to unlearned PF cadres so that you benefit like lice from them,the law is cleary Bashi Bwalya …
Mr Kelvin Bwalya’s argument is faulty because he seems to be reading Article 93 in isolation. Whwn interpreting a constitution or for that matter any statute , it is not advisable tk read any provision in isolation. Further, in the case of a Constitution the interpretation should be purposeful. Mr Bwalya is approaching the Constitution in the simplistic manner that he approaches the Penal Code with which he is more familiar. Purposeful interpretation of the provisions relating to the appointment of the chief justice will clearly show that the current Acting Chief Justice is not qualified.
And no one has even suggested that the Chief Justice is supposed to act for 6 months. Mr Bwalya’s argument is therefore a ‘straw- man’s argument: He creates his own argument which is easy to defeat.
Before I comment on this issue, can some tell me which constitution is being quoted in this case. Is it the draft or the existing one? I ask because ba PF ni ba citongo.
Further the constitution provides (Art 98(1)(b)) that the president may appoint a judge who has attained the age of sixty-five years, for such further period, not exceeding seven years, as the President may determine. Emphasis on such further PERIOD. She was given a 2 year contract by RB in 2010 which expired in 2012. According to Art 98 she did not qualify even for the contract extension in 2012 before she was appointed Acting CJ and that is one of the declarations sought by LAZ
Mr.Bwalya is confusing me. If retirement age is 65 and my Lady was born in 1944,how old is she then.?Is she really enjoying this job or it’s the usual Bemba wukakashi.
Let lawyers fight it out ,tapali mufishibe.Mind you ,Mr.Bwalya is a Bemba
Fube is a kasai not bemba.
Kelvin Bwalya with his dirty ethics is not the right lawyer to take on this unless pf are very desperate . He is a criminal lawyer and this here is way beyond his pay grade.
What Mr Bwalya also avoids to mention is wha t should happen to a person whose appointment is rejected by the Parliamentary Appointments Committee. Should such a person continue to perform the functions of that office or should they relinqiush that office ? If the person continues to perform the functiikns of that office doesnt that amount to violating the Constitution ? By allowing someone whose appointment has been rejected by the Parliamentary Appointments Committee isn’t the Executive breaching the rules on Separation of Powers ?
Anyway, Mr Kelvin Bwalya only deals with criminal law matters before Magistrates where he argues aginst police prosecutors , and we all know how he wins his cases there. He rarely goes to the High Court for civil procedure matters.
U seem to be right counsel…
Only bashilubemba can advise on this
These tu ma young liars in the LIARS ASSOCIATION OF ZAMBIA no nothing. This is all because of leakages at ZIALE.
It is sad when the person who comes to your defense is Kelvin Fube Bwalya. The man who is not allowed to practice because of various ethical issues. Let someone else defend the CJ and not this charlatan.
birds of the same further, flock together
Law jargon is ‘funny’. Kelvin seems to be wright but LAZ is also a collection of your kind.your matter is now in court.You cant win from outside the court.Dont be like useless Kabimba.
Kelvin has to argue his case outside the courts because he has no right of audience before the courts. He is trying to win favor with the Acting Chief Justice.
Kelvin has deliberately not quoted the article on parliament retification,the maddam has not been retified by parliament.
She is acting so she cannot be rarified. Those appointed to act don’t need parliament ratification!
@observer
I think you are missing the point here. Judge Chibesakunda is over 65 years old and is supposed to be retired . Fortunately she was given a 2 year contract up to 2012. When her contract expired she needed to be reappointed following the procedure outlined by article 93(1) and /or 93(2) in order for her to act as CJ. Article 93(2) reads and I quote”93(2) The judges of the Supreme Court shall, subject to ratification by the National Assembly, be appointed by the President.” What you have to remember is that the president can not appoint any person not a high court or supreme court judge to act as CJ. For any person to qualify for appointment in acting capacity as CJ she/he must be either high court or supreme court judge in first place. Ratification by parliament is a must.
Go the Musharaf way.
oops!!!! be up to date bro, musharaf is in the chucks right now for doing what you imply.
If this lady CAN NEVER BE CONFIRMED for legal reasons, why does she keep holding on to that position on acting basis, especially given her well documented work experience – is she not ready to settle; she did not prepare herself, or Sata wants to use her – which threatens the integrity of the whole judiciary?
Well written article and arguments,I wish all lawyers in Zambia thought like you.Zambia has got serious problems that deserve debate and attention.how does the removal of the acting chief justice help to solve the poverty in mununga or shangombo if I may ask?well done KFB
It will stop un necessary bye elections so that the money can then be used to help the people in mununga and shangombo.
the old dinosaur should just go..we don’t need her..KBF is hungry for the ministerial post of justice..
Just see the surname of the person arguing you will understand why. #Thinking with tribe
No wonder they say the law is an ass. No solid principles to bank on. The same constitution says yes you can and no you can’t on the same issue! This is total confusion.
Kelvin Bwalya is not party to this matter so this is of no consequence. Even in his feeble attempt to enter the discussion, he fails to address the key issues LAZ has raised.
1. That the law does not allow someone to be appointed to a higher position than he or she previously held.
2. That the president could have only extended Madam Chibesakunda’s contract as Supreme Court Judge nothing higher than that.
He’s a member of LAZ which makes him party to the whole issue.
@coachez, Kelvin is not a party to the proceedings. what he is saying here is his private opinion. If he were as you suggest and being a lawyer, he should have brought up his arguments in court not to news media, otherwise this could amount to contempt of court. Copy that.
Isn’t this the same Kelvin Bwalya who is known to be winning his court cases by buying off Magistrates, Judges etc … or I am mistaking him for someone else???????????
Cite the cases boss, maybe you are mistaken or ready that other blog which never has facts but rumours!
Is this not the Kelvin Bwalya whose licence was suspended for some ‘criminal activity’ at one point in time???
so you mean LAZ is full of useless lawyers who can not articulate read the constitution of Zambia properly. Kelvin based his argument on Article 93(6) which states that “ a person may act as Chief Justice or Supreme Court Judge notwithstanding that he/she has attained the age prescribed by Article 98.” The Judges’ current retirement age was 65.
Kelvin also dismissed assertions by some lawyers that the Chief Justice could not act for more than six months pointing out that Judges were excluded from the definition of who may not act for more than six months.
He also quoted Article 139(2) of the Constitution which says “In this Constitution, references to offices in the public service shall not be construed as including references…….
This crook of a lawyer must not be allowed to comment on such important constitutional matters.
I am not a lawyer and I do not know this Kelvin Bwalya Fube, but I think he has based his arguments on solid ocnstitutional clauses and I feel anyone should only argue by disputing his reasons.
fwebabemba twatukwa
This obsession with tribe is too much. Any issue is thought of in tribal terms first – objectivity comes last . When Sata failed to attend Cardinal Mazombwe’s funeral the conclusion was because Mazombwe was not Bemba. We now know from Bashi Lubemba that Sata did not attend Chitimukulu’s funeral either! Just because Lawyer Bwalya has cited reasons why he thinks Sata’s appointment of the CJ is legit, he is a tribalist? Chanda Chimba III insults Sata because he has personal issues with him, he is not a tribalist! Most of us criticise and give credit when it is due – nothing to do with tribe.
I concur. Why can’t we just discuss issues without bringing in tribal connotations? Why can’t these legal minds rebut what Kelvin Bwalya has said instead of just aligning him to tribe?
Parliament rejected the acting CJ period!
The law makers did not see the acting CJ fit for the nation. Parliament represents us the people. If parliament refused then, we the people refused! Period!
No NEED to quote constitution here…
Law is very funny because some articles or provisions shd not be read in isolation…KBF has chosen 2 quote only a few of the provisions of the law. LAZ is doing its duty in trying 2 ensure that the Law is protected…
We have nothing against the Acting CJ, but we can’t have someone acting for 2yrs…the Judiciary nids someone that will b there for a long time for them 2 progress.Madam CJ, at least u too have tasted how being CJ feels like…if the law was different u wud b the substantive holder of that seat. Kindly step dwn n let the President nominate someone else
I think CJ Kunda is not just principled.
Kelvin Bwalya is another rogue Lawyer on PF pay roll hired to ruin the judicial system in Zambia.
The reality is that the process this clique of PF Lawyers (Kabimba, Lombe Chibesakunda, Mmembe, Mutembo Nchito, Mumba Malila, Musa Mwenye, Patrick Matibini, John Sangwa and now Kelvin Bwalya) had embarked on will soon be sorted out by the Bemba Chiefs as the rest of Zambia watch in silence. Just listen to the recorded audio statements by the Bemba Chiefs to gauge the extent of cobweb that they are entangled-in for themselves. God has His Own Way of Saving This Nation from political crooks and Economic Plunders.
Kelvin is the crookest lawyer i have ever known,How may times has he been deregistered by LAZ for misconduct?Mwebantu nagu ni advise mulefwaya apapena not kuli ba Kelvin.I did nt know he is a criminal lawyer no wonder he is a criminal himself.
Bwalya is quoting wrong sections. They are irrelevant in present case.
The main issues are- (1) President cannot extend a judge’s tenure more than one time , and (2) not in a position higher than the substantive position (note it is her substantive position that she can get extension in and not promotion- nobody gets promotion in extended period of time)
LAZ is on firm ground. Morally and legislative angle as well Mr. Sata has erred and by continuing to cling to that position Chibesakunda has lower the dignity of Supreme court. Parliament committee rejected her and so she has no right to be in that position. Sata and she both are wrong and can be tried (and Sata impeached for not following the constitution and disobeying peoples representatives)
@ The Saint- that route will be a dramatic day for Zambia. The way things are going it might happen and be the first of its kind in African history. Musharraf did a mistake of removing Chief Justice and Sata is doing the mistake of appointing (he has not extended her tenure- she was just a judge and had already completed her one term extension) Phyllis as Acting Chief Justice.
minor james banda is marely fighting proxy wars using LAZ. It is also a marketing strategy by these nonentity lawyers desperately seeking public recognition and attention.
Surely president sata its time to rule we cant ve minors, nonentities, husband grabbing single girls posing as lawyers bring confusion to an important arm of GRZ
Neither is it proper for someone who has never seen the inside of a law school to bulldoze an appointment against sound legal judgement. What a joke of a country Zambia has become. It is at times like these that proper thinking Zambians feel the pain of losing President Mwanawasa, SC (MHSRIP).
Which Bwalya is this one? He is not supposed to practice. He is a crook. One man firm and should have been closed long time ago.
The Chief Justice should retire. First woman lawyer in Zambia and Africa and yet cannot read the times. It is time to go. Mwaanga is now gone who has similar exposue. It is time for young generation to take over.
LAZ why are you concentrating on an individual position instead of talking about impending and dragged cases. Parties have died without passing Judgments may we wait for Jesus Christ, you have failed mutably.
laz has failed us
I thought its HH who is illegal …? On another note, did HH wed his wife or was just chibwantu ceremony?…
I thought its HH who is illegal in UPND …? On another note, did HH wed his wife or was just chibwantu ceremony?…
Kelvin is a useless man who quotes what suits him not the while quote or passage. He cheats on his wife and all the time and sleeping with young gals . No morals and has no right to comment on anything. A waste of man kind and a lose . A broke lawyer just looking for money
ok simple question: if learned judge Chibesakunda is dropped, is it HH or LAZ who will appoint the next CJ? point is that even the next CJ will still be answerable to HEMCS….so this is what i would call ‘kusabaila’ ……Ask PF, it didnt work for CJ-Sakala during RB rule….
I have heard of a ‘myth’ of free marsons not letting any of their kind down, no matter the cost. Its a secret oath they swear and would rather die than go against it.
Folks, I’m not in any way suggesting Kelvin is from the secret society. But with the way some of these appointments are made and defended, you can’t help but start wondering mwe! Before the PF cadres demanded Kabimba’s removal, ordinary people had already demanded for his exit as Justice Minister. Sakeni had to die in office. Now we hear Scott is being refused to go. The list is endless. Is there something ‘dark’ we don’t know?
@44.1 blue blood,
you shud change to grey blood. Who told u running the country is for lawyers only. And which lawyers are these… the likes of james banda are what u can compare to HEMCS, my foot!
Just what into these baby lawyers brains to elect a minor james banda to such noble position? Indeed LAZ is finished, no integrite, no credibility. What differentiates LAZ from cadres,mishanga boys, call boys, ngwangwaziz.
Only dull *****s trying to sound smart will see sense from this bemba clown
Kelvin is a crook Lawyer and Symphathizer of the PF.Remember,he even started ka NGO called Anti-Rigging.After The Pf won the ka NGO is no more.
Kelvin, don’t make a fool of yourself. this action is supported by state counsels , find something useful to do with your life bro. clown
I sta
nd byy kelvin wlthout fear or favor stand on firm grounds and interpret the law.it is a otal failure to this particular persecution.by marvin law student.