By Isaac Mwanza
No one should necessarily blame President Hakainde Hichilema or the UPND for the manner in which our judges and judicial officers are subjected to work at the mercy of the Executive led by the President. Judges and judicial officers in Zambia constitutionally work and have been placed at the mercy of the Executive arm of Government led by the President and this has always remained one of my points at every Constitutional review that we must change the system.
Quiet fair, Judges are appointed by the President and ratified by Parliament. But these Judges are recommended to the Executive President for appointment by a Commission (Judicial Service) that is part of Executive. The Judicial Service Commission itself does not only work under the Executive arm but is also appointed by the President.
This is the Commission that is used to deal with judges or magistrates around whom the Executive would like to deal with. The Executive had been and continues to toss judges and magistrates around like a bottle-top because the law allows the Executive to do so. Nothing has changed at all. Everything has remained the same as it was in all previous regimes.
We have yet again another Commission (Judicial Complaints) which works under the Executive arm and is responsible for disciplining Judges and judicial officers. This part-of the executive Commission is appointed by the President and recommends to the President to remove any judge or judicial officer.
These Commissions used to appoint and discipline judges will usually have people who have never been judges or magistrates themselves. Some are practising lawyers who usually have audience before the very judges and Magistrates they would later be tasked to discipline. What do you expect of such Commissions? Can people who have lost cases before some judges or Magistrates be expected to be impartial when disciplining these men and women in wigs?
So when we talk to separation of powers in this country, we talk about a concept and not reality until a time when the Courts will begin freeing these Commissions from being under the Executive arm of government to become truly free and independent.
Magistrates and judges did not choose politics but they find themselves dealing with political powers or being labelled political in one way or another. This is sad for our judiciary. Again, I say this is not the problem created by this current regime, it is a problem of having the majority decide what must be in the Constitution and not listening to minority voices.
The truth remains the same that judges and magistrates, like the so called independent Commissions, are at the mercy of the Executive arm of government in Zambia. Amending the constitution is not the lasting solution because it will create further lacunas or procedures. The judges themselves have been given some constitutional authority to ensure that the Constitution is interpreted in the manner that promote our national values, which includes constitutionalism and good governance.