Removal Of Judges
By Dickson Jere
Prior to 2016, we used to have a watertight procedure on removing serving Judges. It involved a Special Tribunal being constituted by the President and comprising eminent Judges to investigate the allegations against the erring Judicial officer. It used to be a full throttle hearing before a Final Report (detailed) is handled over to the President for action.
In the past, some of the Tribunals were headed by former Chief Justice or Justices from outside Zambia. This was to ensure transparency and impartiality. That system was a good one and guaranteed the security of tenure of Judges.
Come 2016, the Government proposed Constitutional amendments. Among those that were proposed was the removal of the above mentioned procedures. The amendment took this power away from the Tribunal and reposed it in the Judicial Complaints Authority (JCA) – which had no such powers in the past. Why this amendment was made still shocks me!
You see, the JCA as it is composed is full of lawyers from the private practice. These are the same lawyers who still appear or their firms appear before the same Judges whom they discipline. It creates some clumsiness! The old system had retired Judges coming to hear the allegations against serving Judges, which provided some safety net. But then, those who pushed for this amendment in 2016, may have had good reasons!
Anyway, the Americans say; “If it ain’t broke, don’t fix”. But we did fix something that was working perfectly well…
Since Government has announced its intention to revisit the Constitution by way of amendments, I will personally and strongly submit on this point. We must go back to the old system of Special Tribunals being constituted to remove Judges. Of the three organs of the State, only the Judiciary is not elected and therefore needs to be insulated from politics. That is why I hate it when we crowd our Courts with political cases, which are mainly players wanting to sort out each other using the judiciary…a stable judiciary is good for the stability of the country!
The last Tribunal for the removal of Judges was appointed by President Michael Sata when he suspended three Judges pending the hearing of the Tribunal. The same was to be chaired by Judge Lovemore Chikopa of the Republic of Malawi.
Judge Chikopa, wasn’t he President Sata’s relative by marriage? Anyway, there is no perfect system in the world as far as governance is concerned. There is NO such thing as separation of powers (an American invention to avoid a monarchy). Our system is even worse because it took the executive power of an American President and a Legislature fashioned after the English Parliament. This is a very big problem. All English arms of government swear an oath of allegiance to the crown. The head of the government is the Prime Minister, who leads UNDER the crown and therefore can be removed if the crown so wished. The cabinet comes from the Legislature. This is a big problem but that is what we chose to have. The Judges are appointed by the President as well through the rubber stamping system. What this means is that the President IS the legislature, through his cabinet ministers and the judiciary, through his appointees. No one bites the hand that fed them the bone they are chewing.