Maravi

Chief Justice Sakala must go – Sangwa

Chief Justice Sakala must go – Sangwa
Written by George Chellah
Wednesday, July 15, 2009 4:23:55 PM

SIMEZA and Sangwa Associates have written to Attorney General Mumba Malila, stating that Chief Justice Ernest Sakala and justice Peter Chitengi have already passed their retirement age. The law firm stated that the duo were not qualified to hold office and that they were holding their offices illegally.

In a letter to Malila dated July 13, 2009, which was also copied to President Rupiah Banda, the Chief Justice, the deputy chief justice, justice Chitengi and the Speaker of the National Assembly among others, Simeza and Sangwa Associates stated that Chief Justice Sakala and justice Chitengi had already passed the retirement age of 65.

"On 29th April, 2009, we lodged the above-stated appeal and because of its urgent nature it was heard in Ndola on 2nd June 2009, by a bench consisting of the Chief Justice, Mr Justice Peter Chitengi and Madam Justice Chibomba. We understand that madam Justice Chibomba is acting judge of the Supreme Court in line with the provisions of Article 93(5) of the Constitution. On 9th July 2009, what was described as the "judgment" of the court was read by the Chief Justice and our clients' appeal was rejected," the firm stated.

"It has now come to our clients' attention that at the time of hearing the appeal on 2nd June 2009, both the Chief Justice and Mr Justice Chitengi had already passed the retirement age of sixty-five stipulated in Article 98(1) of the Constitution, hence not qualified to hold the office of judge of the Supreme Court, consequently not competent to hear and determine this appeal or any other appeal case.

"Article 98(1), omitting the parts not relevant to the issues at hand, reads: Subject to the provisions of this Article, a person holding the office of a judge of the Supreme Court-shall vacate that office on attaining the age of sixty-five years: We are aware of the proviso to Article 98(1), which omitting the parts not relevant, reads: provided that the President- (a) may permit- a judge of the Supreme Court, who has attained that age to continue in office for such period as may be necessary to enable him to deliver judgment or to do any other thing in relation to proceedings that were commenced before him before he attained that age; (b) may appoint- a judge of the Supreme Court, who has attained the age of sixty-five years, for such further period, not exceeding seven years, as the President may determine."

They stated that these provisions did not allow their Lordships to hear and determine the appeal or any other appeal after reaching the retirement age.

"If their Lordships are in the office on the strength of proviso (a), it is our view that that proviso only empowers the President to permit their Lordships to continue in office, after reaching the retirement age, only for such a period as may be necessary for them to deliver their opinions in appeals, which they heard before reaching the retirement age. It does not allow them to hear and decide appeals after attaining retirement age. However, if their Lordships are in office on the strength of proviso (b), we admit that under that proviso the President has power to appoint a retired judge of the Supreme Court to another term not exceeding seven years. This is a fresh appointment which must be ratified by the National Assembly in line with the provisions of Article 93," Simeza and Sangwa Associates stated. "So far as we have been able to establish there has been no ratification by the National Assembly of their Lordships' appointments after retirement. It is our position that the Chief Justice and Mr Justice Chitengi are holding their offices and performing the functions of the judge of the Supreme Court illegally. They are doing so in violation of Articles 93 and 98 of the Constitution. They were not, therefore, competent to hear and decide our clients' appeal. The allocation of our clients' case to a Bench made up of the Chief Justice and Mr Justice Chitengi also violated our clients' right guaranteed under Article 18(9) of the Constitution. Under that Article, our clients' are guaranteed the right to a fair hearing before an independent and impartial court. A panel dominated by retired Supreme Court judges, but in office in violation of the Constitution, cannot be independent and impartial as required by the Constitution.

"The situation is aggravated when the following factors are considered, (a) although the President has the power to appoint a retired judge for a further period not exceeding seven years, the circumstances in which the Chief Justice and Mr Justice Chitengi were appointed and the period they are expected to serve are not known; (b) their appointments after retirement were not ratified by the people's representatives in the National Assembly; (c) without such ratification, the judges are serving at the pleasure of the President; (d) given the low life expectancy in Zambia, there is a presumption that once one has served up to the age of 65, one has given his best both physically and intellectually; (e) given the high level of unemployment in the country, those who have reached retirement should vacate their offices and create room for others; and (f) after all a retired judge is entitled, until death, to 80 per cent of the serving judge's emoluments. Other than violating the Constitution, the panel that heard our clients’ case also violated section 3(2) of the Supreme Court Act, which provides: The determination of any question before the Court shall be according to the opinion of the majority of the members of the Court hearing the case."

The firm stated that the Court that heard and determined his clients' appeal was made up of three judges of the Supreme Court,

"The minimum number of judges that can hear and determine an appeal as stipulated in section 3(1). However, only one opinion was read by the Chief Justice as representing the opinion of the Court. This is in violation of section 3(2) of the Act. The said section requires each of the three judges, working independently, to deliver his or her own opinion. It is only after reading the opinion of each judge will it be possible to determine the majority opinion of the Supreme Court and the reasons or justification for the same. The majority opinion of the Court cannot, therefore, be pre-determined by the judges in a secret chamber and one opinion delivered. It is for the parties to the appeal and other interested parties to read the opinion of each judge and from there deduce the majority opinion of the court," stated Simeza and Sangwa Associates. "Our clients have the right to know the opinion of each judge that was part of the panel that heard their case. The said provision is meant to benefit our clients and is designed to enhance the independence and impartiality of the Supreme Court. The departure by the judges of the Supreme Court from the provisions of the section 3(2) of Act: (a) undermines transparency and accountability within the Supreme Court (b) stifles diversity in legal thinking and creativity (c) violates Article 91(2) of the Constitution, which enjoins judges to observe the Constitution and the law (d) curtails development of the law and the legal system and (e) provides a fertile ground for abuse of power and corruption of the law.

"If your interpretation of the constitutional and statutory provisions we have referred to is different from ours, we have instructions from our clients to move the High Court so that the issues we have raised can be adjudicated upon. However, if you share our interpretation of the said provisions, we would like to know what you propose to do to correct the constitutional and statutory violations we have outlined above. We would be grateful to hear from you within seven days from date hereof. If we do not, we have instructions to move the High Court."

Labels: ERNEST SAKALA, MUMBA MALILA, RETIREMENT AGE

posted by MrK @ 3:23 PM