JOHN SANGWA

STATE Counsel John Sangwa has petitioned Attorney General in the Constitutional Court seeking declarations that authority given to the President to prescribe emoluments and make regulations prescribing perquisites and conditions of service for judges were ultra-vires Article 122(3) of the Constitution which guarantees autonomy of the Judiciary.

In his petition dated April 16, 2020, Sangwa premised his petition on Article 3 of the Constitution which vests the right and imposed a duty on every person to defend the Constitution and resist or prevent any person from overthrowing, suspending or illegally abrogating the Constitution.

He noted that on January 5, 2016, President Edgar Lungu assented to the bills no.16 of 2015 and constitution of Zambia [Amendment] Bill number 17 of 2015 into Constitution of Zambia Act No. 1 of 2016 and Constitution of Zambia [Amendment] Act No. 2 of 2016 respectively.

He said according to Section 3 of the Constitution of Zambia Act No. 2 of 2016, except as provided under the Act, the Constitution of Zambia Act, 1991, and the Constitution (the Constitution of 1991) in the schedule to the Act were amended in so far as they formed part of the laws of Zambia.

He also said Article 1 of the Constitution of Zambia [Amendment] Act No. 2 of 2016 provided that it would be read as one with the 1991 Constitution.

“The Constitution of Zambia [Amendment] Act No. 2 of 2016, amended the entire constitution of 1991, pursuant to Article 79 by repealing and enacting and re-enacting all the provisions of the constitution of 1991, except for Chapter III of the Constitution and Article 79 of the Constitution,” Sangwa noted. “Of interest to this petition is the new Article 122 of the Constitution, which provides for the functional independence of the Judiciary. It reads: 122. Functional independence of the Judiciary (1) In exercise of the judicial authority, the Judiciary shall be subject only to this Constitution and the law and not to be subject to the control or direction of a person or an authority. (2) A person and a person holding a public office shall not interfere with the performance of a judicial function by a judge or judicial officer. (3) The Judiciary shall not, in the performance of its administrative functions and management of its financial affairs, be subject to the control or direction of a person or an authority. (4) A person holding a public office shall protect the independence, dignity and effectiveness of the judiciary. (5) The office of a judge or judicial officer shall not be abolished while there is a substantive holder of the office.”

Sangwa also highlighted article 123 which states that the Judiciary shall be a self-accounting institution and shall deal directly with the Ministry responsible for finance in matters relating to its finances.

Article 123 also provides that the Judiciary shall be adequately funded in a financial year to enable it effectively carry out its functions.

Sangwa noted that prior to the 2016 constitutional amendment, emoluments, pensions and other conditions of service for judges and matters connected with or incidental thereto were governed by the Judges Act, Chapter 277 of the Laws of Zambia.

“Of interest to this Petition are (a) Section 3 of the Act, which provides that: ‘There shall be paid to a Judge such emoluments as the President may, by statutory instrument, prescribe (b) Section 10 of the Act which provides that: ‘a judge shall contribute towards the cost of the pension scheme described in this Act at the rate of seven and one quarter per centum of his pensionable emoluments or at such other rate as the Minister may fix by statutory order in consultation with the institution designated by section nine…” Sangwa said. “(c) Section 11 of the Act, which provides that: There shall be paid in the institution designated by section nine from the general revenues of the Republic such amount calculated with regard to the pensions and other benefits payable under the pensions scheme described in this Act as may be fixed by the Minister in consultation with that institution following the advice of an actuary appointed by the institution.”

Sangwa is also interested in section 12 of the Act which provides that the President may by statutory instrument make regulations for the better carrying out of the provisions of this Act and that the President may, by statutory instrument, make regulations prescribing the perquisites of office and other conditions of service of a judge, including but not limited to car loans; housing allowance; non-private practice allowance; funeral allowance; and travelling on duty.

Sangwa noted that despite the amendment of the Constitution of January 5, 2016, the above provisions of interest had remained in force and no legislation had been enacted and no measures or steps had been taken to secure the financial independence of the Judiciary.

He also said on June 21,2016, President Lungu exercised his powers and issued Statutory Instrument No. 47 of 2016 revising salaries of the judges.

He said the President did the same on October 10, 2018 through Statutory Instrument No. 80 of 2018.

Sangwa contended that section 3 of the Act that gives the President powers to prescribe the emoluments of judges was ultra-vires Articles 122(3) and 123(1).

He also contends that section 12(2) of the Act which confers power on the President by statutory instrument to make regulations for the better carrying out of the provisions of the Act was ultra-vires articles 122(3) and 122(1) of the Constitution.

Sangwa also contends that the section empowering the President to determine loans, housing and other allowances for judges and judicial officers were ultra-vires the Constitution.

“Statutory Instrument No. 80 of 2018, to the extent that it contains the salaries of judges prescribed by the President is ultra-vires Articles 122(3) and Article 123(1) of the Constitution and (e) to the extent that the Minister responsible for finance has not put in place measures to ensure that the Judiciary is financially independent and adequately funded, the Minister is in breach of Articles 122(3) and 123(1) of the Constitution,” he stated.

Sangwa has asked the ConCourt to order and compel the Minister of Finance to put in place, within three months or such period as the court may deem appropriate from the date of the order, measures satisfactory to the Judiciary to ensure its financial independence and self-accounting.

He also prayed that the court would order the Minister of Finance to adequately fund the Judiciary in every financial year.

He has also asked the court to quash sections 3, 10,11, and 12, including Statutory Instrument No. 88 of the Act for being inconsistent with the Constitution.

“In the event that Statutory Instrument No. 88 of 2018 is declared null and void as prayed …above an order that the declaration be suspended until the Judiciary as a self-accounting institution has by Statutory Instrument formulated its own regulations prescribing the perquisites and other conditions of service of judges…” stated Sangwa.

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