By Isaac Mwanza
The Constitution of Zambia has created an “independent” Judiciary which is never free as inferior laws enacted by Parliament have compromised the independence and effectiveness of the Judiciary. I hold these truths to be self-evident that independence and freedom are never the same nor are they part of our country’s separation of powers.
From my reading of the Constitution, the framers of the Constitution did not expressly cloth the Judicial Service Commission (JSC) with power to transfer magistrates or judges. There is no such power in Article 220 of the Constitution of Zambia. In fact, the administration of the Judiciary has been placed under the Chief Justice by virtue of Article 136(2)(a).
Both the Judicial Service Commission and Judicial Complaints Commission fall under the Executive arm and not the Judicial arm of government. In some cases, these Commissions are presided by persons who have never been judges themselves nor magistrates. In other cases, they are presided by lawyers who are active in the practice of law or are retired but had represented clients who lost cases before these same judges and magistrates.
So where does the Judicial Service Commission draw power to transfer magistrates when the Constitution has not allocated it such power? In addition to the functions of the Commission provided under Article 220(2) of the Constitution, Section 6 of the Service Commission Act No. 10 of 2016 provide further functions.
The power to transfer Judicial officers lies in this inferior legislation and such a function is premised on Article 220(2)(d) of the Constitution which states:
“The Judicial Service Commission shall carry out a function provided for in this Constitution, or as prescribed (by an Act of Parliament, in this case Act. No. 10 of 2016).”
I must be quick to point out that Article 1.(1) of the Constitution itself states:
“This Constitution is the supreme law of the Republic of Zambia and any other written law, customary law and customary practice that is inconsistent with its provisions is void to the extent of the inconsistency.”
Reading Article 136(2)(a) of the Constitution which has expressly clothed the Chief Justice with the responsibility to administer the Judiciary, it means that, although Parliament can enact any law under Article 220(2)(d), such a law must never be ultravires the Constitution, in particular Article 136(2)(a), which confers the Chief Justice with a constitutional responsibility to administer the Judiciary.
How come then that we can have subsidiary legislation that grants the power to a Commission to transfer Judicial officers when the Constitution as a supreme vests the administration of the Judiciary in the Chief Justice? Such an inferior law can only be said to be void as it is inconsistent with the Constitution.
The provision of the inferior law and the action by the Commission to use such a law to effect changes in the administration of justice does not only breach Article 136(2)(a) but also breaches Article 122(1)(4) of the Constitution of Zambia which, in part, as reads:
“122.(1) In the exercise of the judicial authority, the Judiciary shall…not be subject to the control or direction of a person or an authority.”
“(4) A person and a person holding a public office shall protect the independence,… and effectiveness of the Judiciary.”
It is my submission that judicial officers and judges have illegally been placed under the control of the Judicial Service Commission and the effectiveness of the Judiciary continues to be breached by transfers of Judicial officers dealing seized with various cases. These Judicial officers are forced or left with no option but to abruptly hand over cases, which cases usually start afresh in some instances.
The Chief Justice has also failed to protect the effectiveness of the Judiciary by continuing to allow the unnecessary transfers of Judicial officers and judges handling cases. The administration of the Judiciary constitutionally lies on him.