By Peter Sinkamba
SUSPENSION OF JUDGE TIMOTHY KATANEKWA: THE GREEN PARTY VIEW
On, 27th December, 2023, State House issued a press statement informing the nation that acting on the basis of Judicial Complaints Commission (JCC) report, and pursuant to Article 144(3) of the Constitution of Zambia, President Hakainde Hichilema suspended Judge Timothy Katanekwa forthwith. Effectively, the public announcement entails that the process to remove the judge has official been triggered into motion.
The judge has two options. Either, he may resign from office of judge by notice in writing to the President. Or may opt yo defend himself before the JCC within the next thirty days of being suspended.
The public notice did not state the grounds that have presented to JCC and the President. However, from social media reports, the ground is incompetence pursuant to Article 143(b) of the Constitution of Zambia. It is reported that the judge does not deliver judgments on time.
The JCC process is a very important step to building public confidence in the justice system. The confidence in the system is very important at this point in time in view of the increasing political disputes, and the wide public resentment of judgments delivered from courts in political cases.
Furthermore, following enactment of Constitution of Zambia Amendment 2016, which in Article 118 clearly spells out principles of the justice system, the public is entitled to expect an obligation on the judges to set deliver on the general principles, compatible with the notion of a fair trial and guaranteeing fundamental rights. For, obligations incumbent on judges put in place in the Constitution were done so in order to guarantee impartiality and the effectiveness of their action.
To ensure that judges and other judicial officers are accountable to the people, the Constitution in Article 236 has provided for disciplinary proceedings for these officers, by establishing the JCC that has been charged with the responsibility for receiving complaints, for obtaining the representations of judges and other officers, and for considering in their light whether or not there is a sufficient case against the judge or officer to call for the initiation of disciplinary poceedings.
The framers of the Constitution envisioned that dsciplinary proceedings initiated for judges and judicial officers should, be determined by JCC, an independent authority or tribunal, operating a procedure guaranteeing full rights of defence. In this regard, though JCC is not itself a court, but its members are lawyers and retired judges, ratified by the independent authority, and the institution guarantees full rights of defence. Furthermore, the arrangements regarding disciplinary proceedings allow an appeal from JCC to a court. Additionally, the sanctions available to JCC in a case of a proven misconduct by a judge are, provided in the Constitution in Article 143 and 144.
In 2016, the Green Party tested the enforcement of Articles 143 and 144 when we initiated disciplinary proceedings against the full bench of the Constitutional Court comprising five judges. What we noted was that the judges can only be removed from the bench for gross misconduct and incompetence. We noted further that whilst gross misconduct is defined as far as possible in specific terms in Article 266, incompetence is not. Additionally, we noted that it is not defined in any statute. Furthermore, we noted that no fundamental charter of judges in Zambia exists, that probably could be applied in a proportionate manner to address the charge of incompetence.
Thus, in our 2016 case, the JCC had to come up with its own definition of incompetence, that was borrowed on pronouncement of an English judge in a disciplinary case of an English judge. Whether that definition will be sustained in Judge Katanekwa case is yet to be seen.
In my view, the definition of incompetence established in 2016 can not hold in the Judge Katanekwa case. Failure to deliver judgments on time when there is no timeframe provided by statute, is, according to the 2016 JCC definition of incompetence, not incompetence.