Citizens who challenged the appointment of 20 judges of the superior courts by the President have urged the Constitutional Court to nullify the appointments for having been done in contravention of constitutional values and principles.
In a reply to the Answer by the Attorney-General filed on Friday, Governance Activist Isaac Mwanza and Maurice Makalu submitted that public interest demands that the Constitution and the law must be respected and upheld.
Mr Mwanza maintained that the Judicial Service Commission contravened the Constitution in the selection process of judges when it failed to respect constitutional values and principles outlined in Article 173 which require a transparent and competitive process which provide equal opportunities to suitably qualified persons.
“Whereas there was need to recruit more judges into the superior courts in order to enhance access to justice and the administration of justice, suffice to reiterate that the recruitment process had to itself comply and be within the Constitution and the law otherwise it all amounted to a nullity.”
Mr Mwanza reminded the court that it has judicial authority and has previously used such authority to nullify decisions by the President which came into conflict with the Constitution.
He pointed the Court to its decision in 2016 which nullified the decision by the former President to keep Ministers in office after dissolution of Parliament and ordered the Ministers to pay back the money they had earned.
“If the Judicial Service Commission was in violation of the Constitution in its process of selecting judges, so was the President in making appointments and the National Assembly in confirming the appointment made by the President,” said the Petitioners.
The Petitioners submitted that Article 140 as read together with Article 95 of the Constitution provides a the process of appointing Judges in Zambia in three-phased approach.
They stated that the appointment process starts with selection and recommending persons by the Commission, followed by appointment of judges by the President, and culminates with confirmation of presidential appointment by the National Assembly.
The petitioners also differentiated the appointment process in Zambia from that of the United States of America where the process starts with the President and ends with the U.S legislature.
The petitioners said the Zambian process is similar to Kenyan and South African processes which uses a three-tier system and require respect for constitutional values and principles.
Mr Mwanza has since told the Constitutional Court that courts in Kenya have shown extraordinary courage and independence by nullifying appointments made by the President which contravene the Kenyan Constitution, even after appointees have been sworn into office.