By Sishuwa Sishuwa
I was earlier alerted to the online availability of the report of the Judicial Complaints Commission (JCC) that recommended the recent firing of three judges of Zambia’s Constitutional Court. Whoever made the report available has made a commendable decision as the case has wide public interest. To download and read the report, click here.
I have also seen and read the complaint from Moses Kalonde that paved the way for the JCC to recommend the suspension and eventual removal of the three judges. To download and read the complaint, click here.
I am grateful to whoever uploaded these documents online. Their decision is an act of courage, one that I suppose they made in public interest. I encourage everyone interested in issues of national interest to read these documents and make up their own mind. I have now read both the complaint from Kalonde and the report of the JCC.
It is the report of the JCC that I find particularly troubling. A careful reading of its conclusions shows that the JCC – itself a creation of the Constitution of Zambia – has elevated itself far above the Constitution and any other constitutional body such as the Constitutional Court, the Judicial Service Commission, and the National Assembly. Let me illustrate this point with a few direct quotations from the report that reinforce my argument that the JCC has gone rogue, acted outside the confines of the law, and committed illegalities of grave proportion.
Before I proceed to do so, I should pause to cite two provisions of Zambia’s constitution that the JCC relied upon to recommend the removal of the three judges from office. One is Article 141 (1) (b) which provides for the qualifications of Constitutional Court judges: “A person qualifies for appointment as a judge if that person is of proven integrity and has been a legal practitioner, in the case of the Constitutional Court, for at least fifteen years and has specialised training or experience in human rights or constitutional law.”
Another is Article 143 (b) that provides for the grounds on which a judge may be removed from office: “A judge shall be removed from office on the following grounds:
(a) a mental or physical disability that makes the judge incapable of performing judicial functions;
(b) incompetence;
(c) gross misconduct;
or (d) bankruptcy.”
In making its case for removing the three judges on the ground of alleged incompetence, the JCC stated that the three judges did not qualify to be appointed to the office of judge because they lacked specialised training or experience in human rights or constitutional law, and that their nominations were opposed by the Law Association of Zambia (LAZ) for the same reason:
“LAZ [Law Association of Zambia] did not support the appointment of the Respondents [Mugeni Mulenga, Anne Mwewa, and Palan Mulenga] and rightly so. Clearly, none of the three Respondents qualified for appointment to the office of Constitutional Court judge and as such are incompetent to hold office or even exercise the functions thereof.
The conclusion of the Commission therefore is that the three Respondents do not meet the minimum threshold to sit as Judges of the Constitutional Court and are therefore incompetent to preside over any matters filed in that Court. The three Respondents’ incompetence in terms of lack of requisite training and experience brings them under the ambit of Article 143 (b) of the Constitution.
The Commission therefore finds that all three Respondents are not qualified to be Constitutional Court judges as per threshold set out in the Constitution and Isaac Mwanza case cited above. The Commission holds that the Respondents are incompetent to be judges of a specialised court like the Constitutional Court and as such should be removed from office.”
There are several questions that arise from this.
First, where did the JCC – an administrative body set up by the constitution to receive complaints lodged against a judge or judicial officer, hear such complaint, and make recommendations to the appropriate institution or authority for action – get the authority to venture into the area of the appointment of judges? According to Zambia’s constitution, there are three institutions that have been mandated to deal with the appointment of judges. The first is the Judicial Service Commission (JSC), which itself is constituted by the President.
The JSC initiates the process of appointment by identifying and recommending the names of individuals to serve as possible judges to the President of Zambia. The second is the executive. After the president receives the recommendations from the JSC, and if he or she is satisfied with the said recommendations, they (the president) submit the names of the nominees to the third institution, the National Assembly.
The National Assembly, usually after receiving advisory but non-binding submissions from other institutions such as professional bodies and civil society, scrutinises the nominees and recommends the approved ones for confirmation of appointment to the president. Once this process is complete, the nominee becomes a judge. This process played out in 2016 when the three were appointed as judges, and all the three mentioned institutions confirmed that the trio was qualified to be appointed as judges to the Constitutional Court. Even the JCC at the time supported the appointments during the confirmation hearings.
More importantly, there is no provision under the existing law that empowers the JCC to review the decisions of the three institutions that have been mandated to appoint judges. By reviewing the appointment of the three judges and concluding that they were not qualified to serve on the Constitutional Court, the JCC exercised powers not given to it by law and elevated itself far above the JSC, the executive, the National Assembly, and ultimately the constitution of Zambia itself. This is an act of grave and extreme lawlessness since the authority to appoint a judge is vested in the JSC, the president and the National Assembly. If a person alleges non-compliance with the appointment of a judge once the process has been completed, they can challenge the institution (s) that appointed them, but not the individual judge.
Second, where did the JCC get the authority to interpret the Constitution of Zambia or pronounce itself authoritatively and with such finality on constitutional matters? Article 1 (5), which provides for the supremacy of the constitution, states that “A matter relating to this Constitution shall be heard by the Constitutional Court.” More specifically, Article 128 of the constitution states that (1) “Subject to Article 28 [which deals with the Bill of Rights and vests the power to interpret this section in the High Court], the Constitutional Court has original and final jurisdiction to hear a matter relating to the interpretation of this Constitution”. It also provides that any person aggrieved with any act, decision or measure taken under law has the right to petition the Court for redress.
If the JCC felt that the appointment of the three judges contravened the Constitution, or that they needed guidance on the meaning of the word ‘incompetence’, they should have stopped proceedings before them and sought clarification from the Constitutional Court. Alternatively, the JCC could have declined hearing the complaint on the ground that they do not have the jurisdiction to consider it and advised the complainant to refer the matter to the Constitutional Court – the same way the JCC through its chairperson Vincent Malambo did when former president Edgar Lungu asked the body to discipline three other judges of the same court for alleged breach of the Judicial Code of Conduct. By proceeding to interpret specific provisions of the constitution, the JCC not only demonstrated double standards over related issues but also assigned to itself powers not given to it by law, usurped the authority of the Constitutional Court, and engaged in grave lawlessness.
Third, if the JCC is to be believed that the appointment process that resulted in the confirmation of the three dismissed judges was faulty, why should Zambians believe that the judges now being appointed by the same institutions – the JSC, the President, and the National Assembly – are any better since nothing has changed in relation to both the relevant laws and the process of how judges in Zambia are appointed?
To put it more clearly, members of the current Judicial Service Commission were appointed by President Hakainde Hichilema, whose party has a majority in the National Assembly. Why should anyone believe that the four judges that the JSC recommended to Hichilema for appointment to the Constitutional Court last year and whose nomination was ratified by parliament through a simple majority are themselves qualified or competent? In fact, some of these new judges recommended by the JSC, appointed by Hichilema, and ratified by parliament – such as Arnold Shilimi – not only lack specialised training in human rights and constitutional law but also had their nomination opposed by LAZ. To download and read LAZ’s opposition to Shilimi’s appointment, click here.
Yet Shilimi is not only a serving judge; he was promoted by Hichilema to the position of deputy president of the court – a very important post that determines case allocation and the composition of panels that hear cases on the court. And if the lack of specialised training or experience in constitutional or human rights law disqualifies a person from appointment as a judge of the Constitutional Court, then where does this leave judges like Martin Musaluke and Mweetwa Shilimi who both lack specialised training or experience in these fields? Musaluke admitted this drawback during his parliamentary confirmation hearing in 2016 by claiming that he did not appoint himself to the role while Shilimi recognised this deficiency as so significant that he enrolled for a course on constitutional and administrative law at University of Lusaka AFTER his appointment as a Constitutional Court judge in order to address it?
Fourth, if the JCC is to be believed that the three judges have been removed from office for their incompetence, then what happens to all the cases they have handled and decided since 2016? Also, is incompetence proved by lack of formal qualifications or one’s incapacity to do something? If the judges are as incompetent as the JCC would want us to believe, then why is the JCC citing as a credible authority a judgement that was passed by the same individuals whom they say are incompetent? What does all this say about the JCC itself?
All this raises one fundamental question: how are individuals appointed by the President to serve as commissioners on the JCC and JSC identified or selected? What qualifications do Prisca Nyambe, Kephas Katongo and Eva Jhala hold that make them suitable commissioners to serve on the JCC? In some cases, during the hearing, these commissioners easily dismissed the evidence provided by the dismissed judges as “all lies” and believed what their former colleagues who testified against them – Margaret Munalula and Hildah Chibomba – said as the truth. How did the JCC know that it was the retired Chibomba who was not lying? If the JCC can allege without proof that the three dismissed judges sourced private actors to write their ruling in 2016, where is the evidence that the JCC’s own ruling or report was not privately sourced?
In another strange conclusion that shows how broken the system is, the three commissioners who sat to hear and determine the case stated in the report that the chairperson of the JCC, Vincent Malambo, engaged in unethical conduct. Now, the role of the JCC is to assess the ethical behaviour of judges. If the chairperson of the very body that has been tasked with enforcing the ethical behaviour of judges is accused of unethical conduct, does he still qualify to continue serving in his role?
But wait. At what point was Malambo heard since this case was about the three judges, not him? How did the three commissioners reach the conclusion that their chairperson is guilty of unethical conduct without affording him the opportunity or right to be heard? Doesn’t this demonstrate a degree of incompetence or unethical conduct on the part of the three commissioners? And if the members of the JCC are themselves incompetent or engaged in unethical behaviour, then where does this leave the JCC?
