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LAZ backs Sangwa’s position on Chief Justice Sakala

LAZ backs Sangwa’s position on Chief Justice Sakala
Written by George Chellah
Thursday, September 17, 2009 12:21:57 AM

THE Law Association of Zambia (LAZ) has supported Simeza Sangwa and Associates' argument that the National Assembly must ratify the re-appointment of Chief Justice Ernest Sakala and Supreme Court judge Peter Chitengi after the duo passed retirement age.

This is according to an expert legal opinion given to LAZ by a constitutional expert, Eva Jhala, which the association filed in the Lusaka High Court.

The matter is between Faustin Kabwe and Aaron Chungu as first and second petitioners and justice Sakala, justice Chitengi and Attorney General Mumba Malila as first, second and third respondents, respectively.

In an affidavit in support of ex-parte summons for an order for leave to file expert legal opinion out of time, LAZ honorary secretary Margaret Kunda Chalwe stated that the court issued orders for directions on September 3, 2009 where it directed that the parties were to file their written submissions on or before September 8, 2009.

"That on the 9th day of September, 2009, Messrs Eric Silwamba and Company acting for the Law Association of Zambia as Amicus Curiae filed into court a list of authorities on behalf of the Law Association of Zambia. That on the 10th day of September, 2009, the Law Association of Zambia received a legal opinion which had been requested of and is authored by Mrs Eva Jhala, an advocate of the High Court of Judicature for Zambia and a legislative drafting counsel," Chalwe stated.

She stated that LAZ was desirous to avail the court with the said legal opinion authored by Jhala.

"That I verily believe that the parties in this cause will not be prejudiced in any way if the Law Association of Zambia is allowed to tender the legal opinion authored by Mrs Eva Jhala but conversely the Honourable court shall have the benefit of considering independent legal opinion from a constitutional expert who is expounding the law impartially and the interests of justice will be served. I am now shown a facsimile of the said legal opinion and same is produced and exhibited hereto marked "MKC 1"," Chalwe stated.

And Jhala in a letter dated September 9, 2009 to LAZ president Stephen Lungu, Jhala stated that after carefully perusing the Constitution of Zambia, her expert opinion was as follows: “Vacations and appointments; the Constitution provides for the Judicature in part VI. Articles 93 and 98 provide for the appointment and tenure of office of the chief justice and judge of the Supreme Court. The anchor Article for substantive appointment is Article 93; while 98 merely deals with tenure and the eventualities that may arise in relation to the expiry of the tenure. It is, therefore, important to read these Articles in context of the subject matter being provided for, and with respect to the intention of what the people intended as the structural aspects relating to the legal competencies of the judiciary and individual judge, the President and the National Assembly."

Jhala further stated that “it thus follows that the legal argumentation that must be brought to bear must be such as would resolve the legal and constitutional problems that have arisen due to the mis (interpretation) of the Constitutional provisions. This is because, like criminal law, legal procedure is regarded as a first order legal science, which is directed to positive law and thereby is national and time-bound. It is, therefore, imperative to relate your research to competence and (in) validity and with the power of imperation, which is a power to obligate and permit (i.e power to bring about legal effects, for example a judgment or appointment).

"Competence must be exercised within certain parameters of power conferring rules, that is procedures, criteria, conditions or structures within the general framework of the law. Section 26 of the Interpretation and General Provisions Act may be instructive in this regard. This section provides as follows: 'where by any written law a power to make any appointment is conferred, the authority having power to make the appointment shall also have power (subject to any limitations or qualifications which affect the power of appointment) to remove, suspend, re-appoint or reinstate any person appointed in the exercise of the power.' Further, Article 138(1) provides that: 'where any person has vacated any office established by this Constitution he may, if qualified again, be appointed or elected to hold that office in accordance with the provisions of this Constitution."

Jhala stated that the red highlights were relevant to the case at hand.

"Turning to Articles 93 and 98 based on the above legal concepts and provisions, my expert opinion is that: The first scenario: under the legal requirement for a judge (Chief Justice or Deputy Chief Justice not specifically mentioned but presumably they fall within the category) to vacant office under Article 98(1) this is mandatory at attaining 65 years but the same Article qualifies the requirement in the proviso by vesting the President with the legal competence to - (a) permit a judge to continue in office for such period as may be necessary to enable him to deliver judgment or do any other thing in relation to proceedings that were commenced before he attained that age. This means that there must be evidence showing pending work and indicating how much time will be required to complete that work so that the President can effectively exercise his legal competence to set the period required. This permission is derived from the notion that the period will be short to complete existing work and that no new work will be undertaken by the judge during that period," Jhala stated. "The wording denotes an extension of an ongoing period and not another, further or new period which is covered under proviso (b); and (b) appoint a judge who has attained the age of 65 for a further period not exceeding seven years, as the President may determine. No further conditions are imposed under this exception, not in relation to existing work or otherwise. Meaning it is not tied to the fulfillment of an existing work programme but left to the discretion of the President subject only to the advice of the Judicial Service Commission in case of a judge of the High Court. However, the catch is that this is a new/another period, the first period having terminated (contractually) after attaining the age of 65 years. In that case Article 93 becomes relevant as explained in the second scenario comes to play. The second scenario: under the exercise of the appointment power, which is the legal competence, the President has the power to appoint the Chief Justice and the judge of the Supreme Court under Act 98 and he has further the power to re-appoint a judge under special conditions (i.e a judge who has reached retirement age) under Act. 98(1) (b) (which is effectively a re-appointment provision) subject to the conditions laid out in the substantive appointing provision, which are those contained in Acts 93(1) and (2).

"It is not necessary as a drafting technique to repeat the entire appointing procedure as this is understood to be in accordance with the above quoted provisions and the fact that the provisions of the constitution relating to the same subject matter must be read as one and not to be understood as contradicting each other. Therefore, any new appointment to office after vacation, for whatever term, must comply with the conditions for appointment, meaning the National Assembly must ratify the appointment otherwise, the competent authority may use a re-appointing provision to continue in office persons who are favourable to the competent authority or no longer suitable or capable of performing high functions by circumventing the scrutiny of the National Assembly. Further, this Article may be used not as an exception to the retirement clause but to circumvent the age of retirement thereby defeating the intentions of the people in coming up with a retirement age for judges. In addition, as stated above, it will be important to take into account the issue of (in) validity in so far as the exercise of judicial competence is concerned during any period that a legal competence was not exercised or improperly exercise. The consequences must be analysed and a solution found, even if parliament has to pass a validation instrument."

Jhala stated that her expert advice has omitted the application of the law to the facts as she is not privy to the facts at hand.

"My opinion is strictly based on my interpretation and understanding of the constitutional and legal provisions. I hope the above opinion will help in some way to present your case," stated Jhala.

Labels: ERNEST SAKALA, LAZ

posted by MrK @ 11:25 PM