Justice on Contract: Judges, the President & the Future of our Democracy
By E. Munshya wa Munshya
Ours has been a robust judiciary. Ours has been a robust commitment to the rule of law. Had it not been for the gallantry of our judges, we could not have achieved the democratic strands we are enjoying today. Beginning with the time of the one-party state, judges sporadically stood up to Kaunda. For example, judges stopped KK when he fired a teacher without recourse to the Teaching Service Commission. It was clear in that 1973 ruling that Kaunda may have been chief of our state, but that did not give him license to be the chief employer of civil servants. Today, our jurisprudence continues to grow from this seminal ruling. Based on this ruling, the Lusaka High Court recently ruled President Sata offside when he purported to “retire” policemen who had not otherwise reached retirement age. Sata, simply, did not have the power to do so.
At the time that Zambia was transitioning back to plural politics it is judges who helped the new democratic movement get the protection it needed to grow. Again, after attaining our plural democracy, it is judges again who continued to play a huge role as guardians of the rule of law. When Chiluba and his cohorts – Michael Sata and Miyanda to be exact – found great solace in the barbaric use of the Public Order Act, it is gallant judges who held that some sections of this law should be ruled as unconstitutional (see cases of Mulundika & Resident Doctors). Further, when Chiluba, Sata and Miyanda amended the 1996 constitution to exclude the likes of Kaunda based on the “parentage” clause; again our Supreme Court came back and provided a more sensible interpretation of what it meant to have Zambian parents (see Lewanika & Others v. Chiluba). It has been my position, following guidance from the Lewanika case, that even a Zambian like Guy Scott does satisfy the requirements of the “parentage clause”.
Perhaps one of the most far reaching demonstrations of judicial independence happened when Deputy Chief Justice Ireen Mambilima held, in the case of Miyanda v Attorney General, that the President of Zambia is not above the law, but rather is a subject of our constitution. According to Mambilima, the Public Order Act itself has placed the president within statutory contemplation. Justice Kabuka relied on this ruling in the case of Kabimba v. Kachingwe (MMD).
That being the case, there has been some concerns, with whether the judges are independent enough. During the Rupiah Banda presidency, it is John Sangwa SC who took government to court alleging that Ernest Sakala should be relieved of his duty as Chief Justice since he had reached retirement age. Justice Mutuna when handling the matter acknowledged that indeed Sakala had reached retirement age, but nevertheless the President as Chief of State still had reserve power to keep Sakala in office. At that time Sakala was serving under a contract from President Banda.
In 2013, the same questions raised by Sangwa have now resurfaced. But these questions are further protracted by the fact that over half of the current Supreme Court is passed retirement age and is therefore on serving on employment contracts amenable only to the president of our republic. These contracts should be a cause of concern to the extent that they might appear to undermine judicial independence.
Perhaps, all this could have gone on unnoticed had it not been for the case of Mutuna & Others. What is remarkable, one observer noted, is that four of the majority judges in the case of Mutuna are all on contract. The three judges, Muyovwe, Mwanamwambwa & Chibomba, who dissented are not on contract and are below the retirement age. Could the Supreme Court have ruled any differently had those judges not been on contract? Did the contracts play a role in making Wanki, Mumba, Chibesakunda, and Phiri rule for the State? As I have stated previously in this column, the majority’s holding that “President Sata is the authority on everything”, is perhaps one of the most dubious doctrines to ever come out of our Supreme Court in recent times.
Indeed, borrowing from what I wrote last week, only a restraint of law can keep a peeping tom from peering through Jumbe’s bedroom. The proposition that a president can listen into people’s moans and shrieks should be a concern to all. It is the law and the judges who can put such abuse of power under control. However, to a large extent, our judges have been exemplary and the holding in the Mutuna case should not in any way reflect on all judges. Mutuna case was obviously badly decided and it remains upon the next court to perhaps find a way to reverse that ruling.
For now, perhaps, the president can continue being DJ and listen more to others’ private affairs. He is the authority on “everything” after all. But we should make no mistake; there is no end to what human debauchery can lead to. Today it is Jumbe and who knows the next person to be on radio Plot One? Indeed, while in the bedroom, Zambians better begin to learn how to smile because they could just be on red brick camera.
Contracts for judges are problematic because they erode at least three fundamental elements of judicial independence: security of tenure, institutional independence and financial security. Each of these is discussed in turn. First, Judges should have security of tenure. A judge should be so secure in the job as to know that he will still have his job tomorrow regardless of what he holds in a ruling. The fact that 4 judges in our Supreme Court have no security of tenure and their contract could be terminated at will is a concern.
Second, institutional independence means that the judiciary and indeed the judges should be free from administrative interference from the other organs of state. It is quite ironic that the chief administrator of the judiciary in our current constitution still remains the president. He is the one who even appoints acting Chief Justices or an acting deputy chief justice for administrative convenience. Quite ironic that when both Sakala and Chirwa were away from Zambia for about 2 weeks, President Sata appointed justices to act in these capacities. Nothing demonstrates lack of independence than the fact that even in these simple administrative duties it is the president who has to find temporary principals. Zambia has been talking about institutional independence for a long time, it is perhaps time to act on this talk and let the judiciary run its own affairs. Speaker Matibini runs parliament without recourse to Sata, why should it be any different for the judiciary?
The last element concerns money. Judges should not only have security of tenure, they should also have security of “salary”. To me this does not really simply deal with how much they get, but rather that the State should not interfere with whatever ngwee that a judge is entitled to. As such, reports that President Sata unilaterally froze a little pay that Justice Denis Chirwa earns should be a concern to all. Such actions send shivers across the judges. Judges are human and they have mouths to feed too. We should give them their fair pay. Sata should forthwith desist from such crass interference.
Leaving all the disputes aside with the eligibility of current acting Chief Justice. I believe that with security of tenure, financial security and institutional independence, we could be on our way to make our judiciary stronger and our Zambia a better republic.