Zambian Judiciary Reforms needed-Actionaid tells parliament
judiciary Reforms
This paper begins by highlighting the challenges around the appointment and removal of judges. This is at the center of the problems with the independence of the judiciary as beholden judges cannot be expected to act independently. It then gives an overview of actual problems, clustered around five themes.
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PARLIAMENTARY SUBMISSION ON CHALLENGES ON REFORMING JUDICIARY
ACTIONAID ZAMBIA
25.02.2025
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CONTENTS
APPOINTMENT AND REMOVAL OF JUDGES. 3
Impunity and Abuse of Judicial Power. 7
This paper begins by highlighting the challenges around the appointment and removal of judges. This is at the center of the problems with the independence of the judiciary as beholden judges cannot be expected to act independently. It then gives an overview of actual problems, clustered around five themes.
APPOINTMENT AND REMOVAL OF JUDGES
A look at the mechanism for appointment of judges in Zambia demonstrates that the process leaves a lot of room for appointment of executive-minded judges as the President has a free hand at the appointment of judges. Article 140 of the Constitution governs the appointment of judges. The President appoints judges ‘on the recommendation’ of the Judicial Service Commission (JSC). The use of the word ‘recommendation’ has been defined by the Supreme Court in the case of Minister of Information and Broadcasting v. Chembo and others SCZ Judgment no. 11 of 2007 narrowly. According to the court, to recommend ‘implies discretion in the person to whom it is made to accept or reject the recommendation.’ Thus understood, it means the President has a free hand, untrammeled by any requirements of integrity, impartiality, commitment to constitutional values and competence in constituting the judicial bench. This can be contrasted with the situation under the South African Constitution where, in appointing judges of the Constitutional Court (except the Chief Justice and his/her deputy), the President is limited to the candidates listed by the JSC.[1]
Further, the appointment process lacks transparency. Vacancies are never advertised and the whole recruitment and appointment process is shrouded in secrecy. As a result, it is impossible to know what qualified one candidate above another for office of a judge. The reported response of one judge to a parliamentary committee question about his suitability for office is telling. Africa Confidential reported that when Judge Martin Musaluke was asked about his suitability for office he answered as follows: ‘I did not apply for the position I am being considered for…The fact that I have been recognized by the Appointing Authority [President Edgar Lungu] is evidence of my competence and suitability.’[2]
Articles 219 and 220 dealing with the Judicial Service Commission (JSC), which is an important institution in the appointment of judges. Article 220(2)(b) indicates that it is the duty of the Judicial Service Commission to ‘make recommendations to the President on the appointment of judges.’ As already noted above, the use of the word ‘recommend’ entails discretion to whom the recommendation is made.
Further, the provisions leave the composition and structure of the JSC to be prescribed in subordinate legislation. This is dangerous as it allows for circumventing the constitution through subordinate legislation. Section 5 of the Service Commissions Act Number 10 of 2016 provides for the composition of the JSC in its current form. The members include the chairperson who is appointed by the President, a judge nominated by the Chief Justice, the Attorney General, the Permanent Secretary responsible for public service management, a magistrate nominated by the Chief Justice, a representative of the Law Association nominated by the Association, the Dean of a Public law school nominated by the minister, and another person appointed by the President. As can be seen, the JSC is mainly made up of persons who either directly or indirectly owe their office to the President and, therefore, does not give the impression of a truly independent JSC. This can be contrasted with the South African JSC which seems to have wider representation.[3]
Although the mechanism through which judges are appointed is the principle too that a regime would use to pack the court, the life of the court can also be affected by the kind of mechanism is in place for the removal of judges. Sujit Choudhry argues that the power of removal is directly related to the power of appointment for at least two reasons.[4] First, the power of removal allows the appointing regime to remove individuals who may have been appointed on a non-partisan basis or have behaved independently in order to pave way for a partisan appointment. Second, the power to remove judges may serve as a tool to enforce the ‘the principal-agent relationship’ between the appointing regime and the appointed judge.
In the case of Zambia the power to remove judges is shared between the President and the Judicial Complaints Commission (JCC). Previously, the President could of his/her own motion initiate the process of removal of a judge but this was departed from under the 2016 constitutional amendment. Currently Article 144 governs the removal of judges from office. A judge is removable for mental or physical disability that impedes their performance of their work, gross misconduct, incompetence, and bankruptcy.[5] The removal process can be embarked upon by the JCC acting on its own initiative or by being seized of a complaint made to it.[6] Where the JCC investigates and finds against the concerned judge, the JCC recommends the removal of the judge to the President who shall remove such judge immediately.[7] Although on the face of it, it appears the President only plays a peripheral role, it is actually the President who has a free hand in constituting the Judicial Complaints Commission. Its members are not appointed by the Judicial Service Commission but are directly appointed by the President.[8] As Hatchard et al argued, leaving such power in the hands of the President ‘provides a potential weapon through which to intimidate judges and thus help create or maintain a pliant judiciary.’[9]By simply wielding that power, even when not invoked,it sends a clear message to judges that the President has the levers of power over them.
The calls judicial reforms in Zambia reached their highest pitch in the 2011 debates leading up to the 2016 constitutional amendment. For instance, in January 2012 the Law Association of Zambia wrote to the then Minister of Justice demanding that there should at least be an open conversation regarding the various issues including the independence of the judiciary, competence of judges, accountability, and efficiency. In January 2014 former President Michael Sata appointed a 20 member Legal and Justice Sector Commission and tasked it to tasked it with reforming the justice system and ensuring that the judicial system responds to the political, economic, and social needs of Zambia. The move was accompanied by assurances from the then Minister of Justice the commission would be a catalyst for progressive judiciary based on merit, transparency, and judicial independence. Although the commission began its work in March 2014, it had not completed its work in time for the constitutional changes in 2016. That notwithstanding, the 2018 amendment included some progressive provisions including provision on financial independence, and enshrining, under article 118, principles of judicial authority which include accountability. These progressive constitutional provisions form should be given life by accompanying judicial reforms including through reforms targeted at improving the quality of judicial officers.
Undoubtedly, there are many good judges in Zambia whose impact has unfortunately been diluted by the context and circumstances under which they work. Over the years, due to the lack of a transparent and credible system for appointing judges, the judiciary became a ‘dumping ground’ for all manner of failed lawyers – lawyers who lack any track record of professionalism, integrity, and clear commitment to the rule of law and constitutionalism. The time is ripe for judicial reforms in Zambia. We demonstrate this by highlighting at least five problems that call for urgent and well thought-out judicial reforms.
Impunity and Abuse of Judicial Power
The first reason is judicial impunity and abuse of power. Over the years, a culture of impunity which insulates the judiciary from public accountability, has entrenched itself. It is common for judges to start work late; delay proceedings; pass decisions inordinately late; and write rulings and judgments lacking in substance and merit. Efforts to hold such judges accountable have largely been unsuccessful because the judiciary has consistently propounded a self-serving jurisprudence insulating judicial officers from suits over their execution of judicial duties. In effect, this tends to make a mockery of constitutional norms about judicial accountability. This aura of impunity has often spilled over to punishing those who criticize the judiciary or make irreverent accusations against judges. Examples are legion and include the citing of Professor Muna Ndulo for contempt of court in 2009, for writing a newspaper commentary relating to a matter before court; citing of lawyer John Sangwa for contempt for complaining about the misconduct of a High Court judge; the conviction and sentencing of civil activist Gregory Chifire to six years imprisonment for contempt of court for irreverent comments on judges; the suspending of practice certificates for lawyers Gilbert Phiri in 2017 for allegedly making irreverent remarks on social media; and the wanton banning of John Sangwa from appearing before any court for criticizing the performance of the Constitutional Court. In doing this, the judiciary often relies on outdated common law doctrines and precedents that have long been vacated by English jurists, and are clearly inconsistent with constitutionalism and human rights norms.
This deeply entrenched culture in the judiciary should be eradicated to pave way for judicial accountability, one of the stated values in our Constitution. A more recent example of some of these problems came to the fore in the case of John Sangwa v Sunday Bwalya Nkonde (2021). In this case, the High Court judge charged Sangwa with contempt of court for complaining, in an affidavit, about the misconduct of the judge. The behavior of the judge in this case shocked the Supreme Court, compelling it to remark as follows: “To say that the conduct is unacceptable is an understatement, it is at the very least to be frowned upon….” Yet the concerned judge incurred no consequence for such unjudicial conduct, until he was removed for unrelated reasons in 2022.
Allocation of cases is not an innocuous exercise. When the judiciary fails to devise an objective mechanism for allocating cases to judges and magistrates, the system is opened up to wanton abuse. As Professor Muna Ndulo has argued, “the lack of an objective system for allocating cases to judges encourages judge shopping” and is fertile ground for corruption and political abuse. This seems to have been the case in Zambia, especially in relation to the allocation of sensitive political cases at the Subordinate and High Courts levels. The judiciary seemed to work like a criminal cartel where many sensitive political cases appear to have been reserved for a pre-determined small pool of magistrates and judges. Once this happened, the outcome was almost always fait accompli. An editorial comment by the News Diggers newspaper aptly captured this vice in the following terms: “Maybe our judges don’t know how it pains when you take a matter to court and you hear that it has been allocated to judge X or judge Y. Not only do you feel like withdrawing the case, but you also feel like crying from hopelessness.”
Prior to the 2010 constitutional reforms in Kenya, judicial corruption was considered to be so widespread that a common expression had been coined: “why hire a lawyer when you can buy a judge?” Although there has not been any recent systematic investigation into the levels of corruption in the judiciary in Zambia, there is reason to believe that it is bedeviled by similar levels of corruption. Transparency International Zambia (TIZ) reports have routinely named the judiciary among the top five most corrupt public institutions in Zambia. Further, the 2019 Global Corruption Barometer, which measures both public opinions and direct experiences of bribery, established that 28 per cent of respondents believe that “most or all” magistrates and judges are corrupt. In addition to these surveys, allegations of corruption have been levelled against judicial officials.
Corruption should never be tolerated in the judiciary. As an enforcer of constitutional norms, the judiciary should be a shining example of integrity. There is a clear relationship between corruption and constitutionalism. As Arthur Chaskalson, the former Chief Justice of South Africa, once remarked, “corruption and Maladministration are inconsistent with the rule of law...They undermine Constitutional commitment to human dignity, the achievement of equality and the advancement of human rights and freedoms. They are the antithesis of the open, accountable, democratic government required by the Constitution. If allowed to go unchecked and unpunished they will pose a serious threat to our democratic state.”
Although we have seen a few courageous judgments, overall, the Zambian judiciary has failed to be the guardian of the constitution and human rights in matters against the executive. Over the years, courts have gladly surrendered their power to check the excesses of government, giving a veneer of legitimacy to what are otherwise unconstitutional actions. In Lord Atkin’s memorable words, the judges have tended to be more “executive-minded than the executive.” Further, then Supreme Court judge, Mumba Malila criticized the tendency by the judiciary “to succumb to resigned acquiescence and to retreat into tranquil comfort zones when judicial leadership matters the most,” arguing that this had contributed to the breakdown of the rule of law.
Consider the amount of groveling by the Supreme Court in the case of Attorney General v Nigel Kalonde Mutuna and Others (2012): “...we are satisfied that bearing in mind the authoritative position of His Excellency, it would be illogical and unreasonable to hold that he did not receive credible information as President for him to act as he did. He is the overall authority on everything. His sources are exclusive to the public domain and must be impeccable.”
The final reason we wish to highlight is the low public confidence in the judiciary. The greatest asset for the judiciary is public confidence in the competence of its judicial officers and the entire institution. Judges do not have police or military forces to help enforce their decisions. Their effectiveness is solely dependent on the support of the people, who consider delivery of impartial justice as an important common good to be preserved. Public confidence is, therefore, an indispensable ingredient of the judiciary’s capacity to protect liberty, enforce the rule of law and superintend over the constitutional order. It is this judicial public confidence that assures the effective role of the judiciary in contributing to the rule of law and consolidation of democracy.
Public confidence in the Zambian judiciary is currently deficient. The Afrobarometer Round 8 Survey on Zambia 2020, for example, established that only 44.8 per cent of the respondents trusted the judiciary “a lot.” The Zambian people have more faith in the military (at 58.9 per cent) than in the judiciary. This is hardly surprising considering that the judiciary has seldom asserted itself as protector of the common good but has largely been seen as a poodle of the executive. The World Bank index on judicial independence, for example, shows that since 2015, the independence of the judiciary has been eroding. Using an index ranging from 1 to 7 (1 being the lowest and 7 being the highest), the Zambian judiciary had a score of 3.40 in 2017, and its scores in 2015 and 2016 were 4.04 and 3.97 respectively. Among neighboring countries, the only countries with a lower score than Zambia were Zimbabwe (2.99), Mozambique (2.89), and the Democratic Republic of Congo (2.39). A close analysis reveals that these countries are largely dysfunctional states. All the other neighboring countries had higher scores than the Zambian judiciary.
These figures should not shock a keen observer of judicial behavior in Zambia over the last few years. A 2018 editorial comment by the News Diggers newspaper, decrying the sentencing of journalist Derrick Sinjela to 18 months for contempt of court by the Supreme Court aptly summed it as follows: “Sending Mr Sinjela to prison will not change the perception that there is something very rotten about our judicial system. Something needs to be done to restore the respect and confidence of the public in our Judiciary. The judges need to look at themselves and be very honest. Have they conducted themselves, generally, in a manner that would command respect from the public? Are they carrying out their duties with dignity and the independence that would inspire public confidence? How are they relating to the powers that be? When there are suspicions of corruption, how are they being dealt with by the judiciary itself?”
The above examples demonstrate the urgent need for improvement in the Judiciary. Refreshingly, there appears to be some progressive pronouncements to undertaking judicial reforms. These progressive pronouncements must be accompanied by concrete action towards comprehensive judicial reforms. This will particularly require drastic change to how judges are appointed in order to ensure that the appointment system is based on merit, vacancies are openly advertised, and candidates go through a public interview and vetting process.
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[1] Section 174(4) Constitution of South Africa 1996
[2] ‘Opposition MPs accuse the President of putting an unqualified Judge on the Constitutional Court’ (2018) 59 Africa Confidential 3
[3] Section 178(1) Constitution of South Africa 1996
[4]Sujit Choudhry,‘ “He Had Mandate”: The South African Constitutional Court and the African National Congress in a Dominant Party Democracy’ (2009) 2Constitutional Court Review 57
[5] Article 143 Constitution of Zambia 2016
[6] Ibid, Article 144(1)
[7] Ibid, Article 144(5)(b)
[8] Section 20(2) Judicial (Code of conduct) (Amendment) Act No. 13 of 2006
[9] J Hartchard, M Ndulo and P Slinn,Comparative Constitutionalism and Good Governance in the Commonwealth: An Eastern and Southern African Perspective (2009)155