Maravi

Chief Justice’s contract raises more questions

Chief Justice’s contract raises more questions
Written by George Chellah
Tuesday, July 21, 2009 6:35:03 PM

SOUTH Africa-based human rights lawyer Professor Michelo Hansungule yesterday observed that President Rupiah Banda is the real culprit regarding the embarrassing incident of Chief Justice Ernest Sakala's expired contract.

Prof Hansugule noted that the embarrassing incident regarding Justice Sakala's expired contract was squarely in President Banda's domain.

"The Constitution left this crucial matter up to the President to decide in his absolute discretion to extend the contract of a judge including the Chief Justice who has reached mandatory sixty-five (65) years retirement. Like most things in Zambia, everything is left to the President to decide as he wishes. There is no proper guidance in the Constitution how the President would exercise his discretion to renew or to extend or to refuse to extend the expired contract. It is a bad constitutional precedent and this particular problem demonstrates it beyond doubt," Prof Hansungule said. "This is a very serious matter most of all because it directly implicates the Constitution. Besides being a sacred instrument, the Constitution is the soul of the nation. Anything that borders on the Constitution naturally should be taken seriously. John Sangwa and his law firm should be congratulated for boldly raising such an important issue and enabling the general public to know about it. Government, of course, would not have wanted us to know. Sangwa deserves praise for raising it."

However, Prof Hansungule said the issue provokes several critical questions. "For instance, should it have been John Sangwa and his firm who should have raised it? Is this right? In the circumstances of this case, John Sangwa had a case before the court which, it turned out did not go his way and after that he filed the complaint. It is important that the complaint wasn't filed before filing the appeal but after and only following the negative ruling. It is a good point to think about. If the case had gone his way, what could have been his reaction in relation to the issues of the incompetence of the Chief Justice and justice Peter Chitengi? Yet another good question to think about?

"But if the facts are as stated, Sangwa is quite clearly right the duo did not have the necessary competence to preside the court as appeal judges. It goes to the grain of the rule of law that for justice to be seen to have been fair, the court or forum that dispenses it should be seen to have been properly constituted. Again, if the facts are as explained in Sangwa's letter of complaint, then the two jurists ought not to have sat to entertain the matter due to lack of jurisdiction. It will depend very much on the facts whether the superior court justices had no jurisdiction in this particular case owing to their expired contracts. Generally, a judge whose contract has expired has no jurisdiction to preside over a new case post-retirement. So, more than anything else, facts are crucial to the determination of the matter."

He said the real culprit in this case was not the two justices as most would believe.

"Because a judge does not appoint himself or herself to the Bench, it is the appointer who should be blamed if anything regarding the appointment or subsequent appointment on contract goes wrong. President Rupiah Banda in particular being the one mentioned by the Constitution as being responsible to extend the Chief Justice's contract should bear the entire blame for the debacle. Though I am not privy to the 'behind the curtains' goings-on, I am quite sure Chief Justice Sakala and justice Chitengi would not sit on the bench post-retirement were it not have been that they were promised by the President that they would have their contracts extended as provided for in the Constitution," Prof Hansungule said. "I honestly don't think they would appoint themselves to their positions one day longer than their contract without an indication from Mr Banda that they will stay on for a further seven years. Therefore, the culprit for me is President Banda who dismally failed to comply with the minimum constitutional provisions, among other things, requiring him to take this matter to Parliament for ratification. The President must explain why this was not done. In the absence of the explanation, we would be perfectly in order to speculate that either the President has no respect for the Constitution, Parliament or he is so incapable of the basic minimum needed to discharge the functions of his office."

He said judges also must learn to not disappoint the public they were appointed to serve.

"A judge who is a judge upon retirement would refuse to step in his or her office one day more than provided in the expiring contract except with constitutional blessing. Most people in Zambia have great confidence in our judiciary. This is why peace has prevailed in the country impossible in other countries. Judges have a duty to reciprocate this and one way is to play the highest moral conduct. These politicians and their senior public servants need not be blindly followed; they can lead you to uncalled for embarrassment as in this case," Prof Hansungule said. "In any case, most of them [politicians and senior civil servants mandated to extend expired contracts] are far well-after retirement but still clinging to their positions and they would see nothing wrong with others doing the same. Almost everyone from the Secretary to the Cabinet 'retired' long time ago but they can't go. It is a culture not to go but to stick around for as long as possible. But judges must be different by insisting that they will re-occupy the office only after the sacred rules in the Constitution had been complied with to the letter."

He said the compulsory age-limit rule for judicial officers derives from what Heritage Party leader Brigadier General Godfrey Miyanda calls "curious carbon copy of the British system."

"In fact, the General should have mentioned that the entire state system he served as Vice-President and before that in the army is essentially nothing but British copy. Therefore, the rule against judges serving in perpetuity derives from Western judicial traditions. In the United States of America, virtually each State as well as federal Constitution entertains the rule. In New York state, this policy i.e. fixing by constitutional provision a limitation of age to judicial service was first established in 1822, abandoned in the Constitution in 1846, was re-established in 1869. The reason for age-limit was extensively discussed by the Court of Appeal in the United States' Gardner case (45 New York, 812, 819-820 (1871) in this case, it was explained that 'the natural decay of the powers of man might at times leave upon the bench an ineffectual judge'. As a result, a 1966 amendment authorized retired Appellate Division Justices to serve in the Appellate Division," Prof Hansungule explained. "However, that same year, the state voters rejected the amendment to allow the retired judges of Appeal Court to continue serving on that court. This [natural decay of the powers of man] was the apprehension that led the authorities at the time to introduce 'age-limits' to judges' appointments. Of course, mandatory retirement treats all judges who reach the prescribed age as if they were unfit to perform their judicial functions beyond that point. This is both inequitable and quite frankly unwise. Under the current age restriction, the country is denied the experience and ability of jurists working at the peak of their productivity and intellectual powers. This demarcation does not bear a scintilla of relationship to the country's goal of maintaining experienced and effective Judiciary.

"It comes from a concern expressed more than a century ago by the drafters of the American constitutions and was solely based on the lone argument that 'the natural decay of the powers of humanity might at times leave upon the bench an inefficient judge'. This was at a time when life expectancy was very low compared to the present day when due to phenomenon scientific advances, people in developed countries live long. Age alone does not determine a judge's functional ability. Each person ages differently. Nor does mandatory retirement consider the value of accumulated wisdom and experience on the bench. A prominent jurist and scholar who has studied the issue at length said: Judging is a late peak occupation in that judicial performance improves with age is at its best late in life and remains stable for many productive years after 70 ...' (Richard A. Posner, Aging and Older Age, University of Chicago Press (1995) at 180-181). So, it is not that simple. There are many factors involved to be a good, stable judge with a requisite temperament."

He explained that medical research strongly supports and counters the contrary view.

"It refutes the constitutional presumption that disabilities in man begin appearing at 70 years of age which is the mandatory retiring age under New York state constitution. Studies have shown that there is no decline in average intelligence until the age of 80, and that healthy older adults perform better than younger people in select areas such as knowledge about their profession and life (Staudinger, Cornelius & Baltes, The Aging of Intelligence: Potential Limits, 503 The Annals 43, 45 (1989)," Prof Hansungule said.

"On the other hand, courts have upheld the need to enact mandatory retirement laws to remove from the bench judges in which age-related disabilities are most likely to occur. While acknowledging that the premise that post-70 old judges were more likely to suffer from disabilities, the US Supreme Court has endorsed the general principle that judicial performance can deteriorate sufficiently by the age of 70 to justify mandatory retirement. However, it being not a legislative body, the Supreme Court wisely deferred the matter to the state prerogative to which it belonged (Gregory v. Achcroft 501 US 452 (1991)"

Prof Hansungule said in Zambia, the constitution opted to fix the age of mandatory retirement for judges including that of the Chief Justice at 65.

"The same document provides for the possibility to extend the retired judge's contract by an absolute seven years. Many judges have benefited from this extension while others have opted to retire. The process in which the extension has been handled lacks transparency and can even invite accusations of unfairness the way it has been handled or rather mishandled by the President and his officials. Since post-65 judges continue to perform their functions effectively and in view of the lack of proper administration system to administer this provision, the Constitution should be amended to extend the mandatory retiring age for all judges to at least 70 years," he said.

Prof Hansungule said President Banda must be made to account why this problem had happened.

"Since he is the one at the moment occupying the office of President, why did he allow retired judges to continue rendering their functions? This is important given the political nuances around this particular situation. There is an unhealthy perception that all this is happening due to the interferences by the Executive and the President in particular in the conduct of the Judiciary. This is unfortunate. President Banda's remarks recently ordering police to arrest The Post journalist and the Police's unprofessional conduct following that is an example of this interference," said Prof Hansugule.

"There are many other similar cases where the justice systems have been abused to do the bidding of the head of state. President Banda owes the nation explanation on what happened in this case. Ignoring the Constitution in this contemptuous and scandalous way calls for stiff constitutional sanctions against the President and his appropriate officials. If the Constitution, as I have indicated already, is not just useless pieces of paper, it must be used to 'fix' the one who unfixed the mandatory retirement age requirements for the Chief Justice and Supreme Court Judge. It's the only way for the rule of law and not Banda's rule to prevail."

Labels: ERNEST SAKALA, MICHELO HASUNGULE, RUPIAH BANDA

posted by MrK @ 5:35 PM