Amb. Dr. Elias Munshya

 By Munshya wa Munshya

That acting Chief Justice of Zambia, Lombe Chibesakunda should resign has been clearly enunciated by very distinguished bodies and reputed personalities in Zambia.  In fact, no other issue has captured considerable coverage in the Zambian media, in the past weeks, than this Chibesakunda saga. Civil society, as well as the Law Association of Zambia, has made it articulately clear that it is a constitutional anomaly to have her ladyship continue to serve as Chief Justice. Since democracy recurrently requires a multiplicity of voices, I wish to add to this debate. If Justice Chibesakunda wishes to save a little bit of her self-respect, she must in good faith resign forthwith and save the nation, the president, and our parliament from further shame, ridicule and embarrassment.

Kuya bebele. I do believe that Justice Chibesakunda should go.

The basic principle of separation of powers within our system of government does envision three arms of government that together form the basic institutions of our democracy. To foster this separation of powers, the head of the judiciary, a chief justice, is supposed to be substantively appointed by the president and this appointment should then be subject to parliamentary approval. It is article 93 (1) of the constitution that states thus: “The Chief Justice and Deputy Chief Justice shall, subject to ratification by the National Assembly, be appointed by the President.” That being the case, no one can take up the position of Chief Justice without parliamentary ratification.

In the case of Justice Chibesakunda, she has not been ratified by parliament and on that basis alone; she must recuse herself from further exercising the functions of that office. Indeed, the process of ratification itself does impose upon our system specific procedures that must be met before one could assume the role of chief justice.

There has been argument by some, that regardless of what the law says, the president of the republic of Zambia still retains the power to appoint anyone to act as chief justice. This theory is both right and wrong. I must return to this later in the article. It is true that the president of Zambia, as chief of state, does have some discretionary power as the reserve of all state power (Article 33 of the Constitution of Zambia). This, however, does not mean that the president is above law and neither does it mean that the president could ignore the constitution with impunity. Article 37 of the constitution in fact, provides for impeachment of a president who abrogates the constitution of Zambia. Further, as was held in the case of Miyanda v Attorney General, Madam Justice Mambilima was on firm ground to state, “the president is not above the law.” The president is a creature of the constitution and not its benefactor (Article 1 s.3 of the Constitution of Zambia).

Article 44 of the constitution casts presidential functions in the following manner: “(1) As the Head of the State, the President shall perform with dignity and leadership all acts necessary or expedient for, or reasonably incidental to, the discharge of the executive functions of government subject to the overriding terms of this Constitution and the Laws of Zambia which he is constitutionally obliged to protect, administer and execute.”

Perhaps it should be fair, at this juncture, to compare and contrast at least two issues to do with retired Chief justices, that of former chief justice Ernest Sakala and the present temporary successor Chibesakunda. Justice Mutuna ruled very eloquently, in the case in which John Sangwa sought to challenge the validity of Ernest Sakala’s continued stay at the helm of the judiciary. According to Sangwa, Sakala was over the prescribed age limit and as such he could not validly hold the substantive office of Chief Justice. After the hearing, Justice Mutuna did rule, and rightly so, that the President as chief of state does have some discretionary and reserve powers to appoint a person like Sakala to remain in office beyond the prescribed age.

Having regard to Mutuna’s ruling in the Sangwa v. Attorney General & Ernest Sakala, the issue therefore is to ask whether the two cases are sufficiently similar as to allow the Ernest Sakala case to provide guidance to the present issue. Sakala’s issues should be distinguished from Chibesakunda’s, however. At law, precedence is valued only to the extent that reasons the court applied in one case could be sufficiently, applied to the other case. Ernest Sakala was the substantive chief justice and he attained retirement age while he was in office. With Justice Chibesakunda, she has come to the office after attaining the age of retirement.

Sakala was ratified by parliament. Chibesakunda was not ratified by parliament. In fact, the subcommittee of the Zambian parliament refused, twice, to even consider taking this matter to the whole house. Undeniably, without parliamentary approval there is no way we could draw parallels between Sakala and Chibesakunda.Chibesakunda’s ascension to the throne of Chief Justice does appear to have been a deliberate effort by the Michael Sata executive to influence the judiciary. This never seemed to have been the case with Ernest Sakala. Indeed, the rhetoric of the ruling party’s secretary general has only gone to affirm the position that the Patriotic Front was looking for a more pleasant face in the judiciary and when they found Chibesakunda, their prayers were answered. Indeed Chibesakunda has not disappointed. She might go into history as one of the most politically biased chief justices Zambia has ever had. She even beats Kaunda’s patron justices of the second republic. In fact, going by the recent decisions she has presided over, it is clear that Chibesakunda is biased and her legal reasoning is not based on law but on other political considerations.

Two important events from the judiciary should be concerning. In the now infamous Supreme Court case of Mutuna & Others v. Attorney General (2013), the ratio decidendi of that case was so outrageous that it should be assigned to the dustbin of legal history. What is so unusual about the Mutuna case was that Chibesakunda with her majority invented doctrines that should be repugnant to a democratic nation. Not since the times of Kaunda did we ever have a Supreme Court that reaffirmed presidential power that rightfully belongs to the age of dinosaurs. For example, it was the opinion of her majority that the president of Zambia is “the authority on everything”. This statement is not only unnecessary but also legally problematic. It is from this assumption that she decided that since President Sata is the authority on everything, he then must have the power to fire judges based on “information the president receives as head of state”. The dissenting opinion of Justice Elizabeth Muyovwe rightly castigated such reasoning.

The other event that is disturbing concerns the famous press statement given by a spokesperson of the judiciary. That statement was not only so outrageous in its defiance of acceptable legal order, but it was unashamedly excessive. Since that statement is a subject of litigation before Justice Mulenga, I should not go into detail, but it suffices to mention that the so-called statement from the judiciary has left a bitter taste. It is bitterer than the herb “umunsokansoka”.

The Law Association of Zambia equally castigated the statement and urged the nation to completely ignore it. Dora Siliya for her part is asking the High Court to review Terry Musonda’s press statement, as it was not given “ex-cathedra.” Terry Musonda lacked the official capacity of a court of law to make pronouncements on issues that can only be decided by a duly constituted court of our republic. Zambia has no other court within the judiciary, than the duly constituted courts of law presided by ratified judges and not support staff like Terry Musonda. We remain to see how Justice Mulenga will handle this issue.

For now, we must be clear about one thing: a chief justice who causes a non-judicial officer to issue statements should not be a subject of our admiration but should be a predicate of our scorn. This is why, it should be affirmed very eloquently that Madam Chibesakunda should resign.

Does president Sata then still reserve the power to appoint anyone he wishes to act as Chief Justice. Indeed, as I have mentioned above, the president does have some of that power within reasonable limits. The President might only appoint a non-qualifying chief justice in extremely rare circumstances. For example, if the Martians were to invade Zambia and abduct 790 of the 800 lawyers in Zambia, a president might be justified to act in the interest of the state by appointing a dinosaur to be an acting Chief Justice. Again that should be done in very rare circumstances, though. That being the case, presently, there is just no reason why in view of such abundance in legal talent the President should insist on having a retired justice to be Chief Justice. Indeed, if the President so wishes, he would not struggle to find that Zambia’s Deputy Chief Justice Ireen Mambilima is more than willing and ready to become the Chief Justice. If not, we still have hundreds of talent to pull from. For all we know, the 800 lawyers on LAZ’s list are still very much around and the Martians have not abducted them at all.

Further, Justice Chibesakunda’s continued stay at the helm of the judiciary is so absurd since it appears contradictory to her own ratio decidendi in the Mutuna case. In the Mutuna case, she mentioned that judges should have guards. She did sound like she was very committed to have judges follow the law. That being the case, why isn’t she following the law herself by recusing herself from this position? She has not been ratified. She is passed the retirement age. Why then does she insist on staying on? The saying of “kuya bebele” could not have come at no better time than this. Justice Chibesakunda should go.

Justice Chibesakunda has been “acting” for over a year now. Using a purely administrative argument, no one should act in a position for so long. Borrowing from the Executive, article 38 of the Zambian constitution does not even envisage an acting president for a period exceeding 90-days. That being the case, it is equally absurd that we should subject the judiciary to a temporary head who has been “acting” for over a year. Since she has not been ratified into the position and additionally, since she doesn’t qualify for it, the normal thing to do is to resign and ask His Excellency to find another person to appoint. As I have mentioned above, if it is a relative the president is concerned about, he has an abundance of young vibrant abepwa, abafyala, abeshikulu, ba cufi banabo, and many more bululus whom he could take to parliament for ratification. It does not have to be Madam Justice Chibesakunda.

It is quite pathetic that a justice who has dedicated herself to the Zambian cause should come to this end. Civil society has rejected her. The Law Association of Zambia have said no. Kuya bebele is what everyone is saying. I just hope that madam justice Chibesakunda will resign before she turns the whole judiciary into a kangaroo court.

Kuya bebele!