Maravi

Rupiah seeks ‘more powers’ over judiciary

Rupiah seeks ‘more powers’ over judiciary
By George Chellah
Fri 23 Oct. 2009, 10:01 CAT

PRESIDENT Rupiah Banda wanted to grant himself powers to increase the number of judges of the Supreme Court to 11 and High Court to 50 by Statutory Instrument.

Giving his second reading speech on the Supreme Court and High Court (Number of Judges) (Amendment) Bill, N.A.B number 28 of 2009, acting leader of government business in the House Kalombo Mwansa told parliament on Wednesday that the Supreme Court and High Court (Number of Judges) Act, chapter 26 of the laws of Zambia prescribes the number of judges in the Supreme Court and High Court of Zambia.

“Currently, section two of the Act provides that there shall be nine judges of the Supreme Court, including the Chief Justice and the Deputy Chief Justice. Section three provides that there shall be 30 High Court judges. The pressure placed on the justice system by the increase in the number of cases litigated and the rapidly increasing population has necessitated an upward adjustment to the number of judges both at Supreme Court and High Court levels,” Mwansa said.

“This Bill seeks to amend sections two and three of the Act so as to provide for an increase in the number of Supreme Court and High Court judges. Sir, although the Bill before this August House proposed to vest power in the President to increase the number of Supreme Court and High Court judges by Statutory Instrument, the government has revised that decision following further consultations with the judiciary.

“I will, therefore, move amendments to the Bill on the floor of this House so that we amend sections two and three of the Act to increase the number of judges of the Supreme Court to 11 and that of High Court judges to 50 within the Act itself. This measure will ensure greater and faster access to justice by our people, since the number of judges will be increased in order to meet the dynamic needs of our nation.”

And vice-chairperson of the parliamentary committee on legal affairs, governance, human rights and gender matters, Sylvia Masebo, reported to the House that the intention of the amendment Bill was to increase the current numbers of judges of the Supreme Court and High Court as a measure to ensure speedy dispensation of justice.

“Mr Speaker Sir, your committee in their endeavour to consult widely on this important Bill invited various stakeholders to make both written and oral submissions before them. Your committee received useful responses from the stakeholders,” she said. Masebo said the witnesses all registered support for the Bill albeit with reservations.

“The concerns are recorded in your committee's report for the consideration of the Honourable members of this House as they consider the Bill and I trust that the Honourable members will find the report useful as they debate the Bill,” Masebo said.

“The witnesses who appeared before your committee observed that the amendments, as provided in the Bill, confer very wide discretionary powers on the President and may entail a negative development in respect of the principle of separation of powers and also may negatively affect the operations of the judiciary as an independent body.

“To this effect, Sir, your committee is of the view that the current provisions where the Act gives a definite number of judges of the Supreme Court and High Court should be maintained and that the numbers be adjusted upwards as proposed by the stakeholders. Your committee would like to urge the House to consider the contents of their report as they proceed with the Bill.”

And several opposition members of parliament urged Mwansa to withdraw the Bill.
Kalomo UPND member of parliament Request Muntanga said the Bill was asking the parliamentarians to give powers to the President to recommend by Statutory Instrument.

“I think it will be so gracious of him (Mwansa) to withdraw the Bill. Withdraw and quickly bring the correct thing!” he said.

Nchanga PF member of parliament Wilbur Simuusa said the Bill must be withdrawn.
Kantanshi PF member of parliament Yamfwa Mukanga wondered why parliament should surrender its own powers to the President. He said even the criteria for the increase in the number of judges was not clear.

“The people who appeared before the committee rejected it so why should we agree?” he asked.

Mukanga said people did not want to see anything that would compromise the separation of powers.

Chasefu FDD member of parliament Chifumu Banda advised the government to come up with an appropriate amendment.

And Roan PF member of parliament Chishimba Kambwili said Mwansa wanted to pull a fast one on the parliamentarians.

But Mwansa said the government had no intention to undermine the principle of separation of powers. He said the government wanted to ensure checks and balances in the dispensation of justice.

But the opposition parliamentarians continued heckling and calling on Mwansa to concede and withdraw the Bill. Mwansa later requested that the Bill be deferred to next Wednesday.

And according to the committee's report, the stakeholders who appeared before it raised concerns on the matter.

The Law Association of Zambia (LAZ) submitted that the proposed Bill sought to empower the President to determine the number of judges in the High Court and Supreme Court and to provide for matters connected with or incidental thereto.
LAZ stated that the Constitution of Zambia provided for the judicature in Part VI under the provisions set out hereunder:

“'92(l) There shall be a Supreme Court of Zambia which shall be a final Court of appeal for the Republic and which shall have such jurisdiction and powers as may be conferred on it by this Constitution or any other law.

(2) The Judges of the Supreme Court shall be - (a) the Chief Justice; (b) the Deputy Chief Justice; (c) seven Supreme Court Judges or such greater number as may be prescribed by an Act of Parliament,” the report stated.

“'94 (1) There shall be a High Court for the Republic which shall have, except as to the proceedings in which the Industrial Relations Court has exclusive jurisdiction under the Industrial and Labour Relations Act, unlimited and original jurisdiction to hear and determine any civil or criminal proceedings under any law and such jurisdiction and powers as may be conferred on it by this Constitution or any other law.(2) The High Court shall be divided into such divisions as may be determined by an Act of Parliament. (3) The Chief Justice shall be an ex officio judge of the High Court. (4) The other judges of the High Court shall be such number of puisne judges as may be prescribed by an Act of Parliament.

“Pursuant to the above provisions the current Supreme Court and High Court (Number of Judges) Act Cap 26, fixes the number of Judges to be appointed in the following manner:

“'2, There shall be nine Judges of the Supreme Court including the Chief Justice and the Deputy Chief Justice; (3), There shall be thirty puisne Judges of the High Court.”

The report stated that in line with the above provisions, LAZ stated that the present Bill was an unconstitutional attempt at legislation as it was a radical departure from both the Constitution and the intents and purposes of Cap 26.

“The Association strongly proposed that the provisions relating to the number of Judges in both the Supreme Court and the High Court must be addressed in the principal legislation as opposed to allowing such prescriptions to be made under subsidiary legislation as this was in keeping with the spirit of the Constitution,” it stated.

“The Association further added that in its current form, the proposed amendment would not enhance the principles of independence of the judiciary, transparency and public accountability of judicial Officers.”

And the Human Rights Commission (HRC) recommended that the Bill be revisited with the following possible outcomes:

“(i) that the current format where the Act gives a definite number of judges of the Supreme Court and High Court be maintained and, if necessary, the numbers be adjusted upwards. Leaving the President to determine the numbers by statutory instrument, was too fluid and was likely to send wrong signals; and (ii) alternatively, the Bill should infuse control measures, such as requiring the President to consult with the Judicial Service Commission before adjusting the number of judges of the High Court and provide for a definite number on the Supreme Court, possibly, with a slight increase to the current nine.”

And the Judicial Service Commission submitted that the increase in the number of judges would mean increased budgetary allocation to the judiciary in the form of salaries and other emoluments.

“It would need additional office space and support staff such as secretaries, marshals, reporters and drivers,” the report stated.

“In addition, the Chief Administrator submitted that what the judiciary had proposed to the Ministry of Justice as an amendment was different from what had been presented in the current proposed amendment.”

The report stated that other stakeholders submitted that in the alternative, it would be better if the said amendment specified the minimum number of judges so that more can be appointed as required at a particular time.

“They further submitted that it was not the President who should decide on the number of judges to be appointed as he was not privy to the workload of the judiciary. Instead, they proposed that the judiciary should recommend to the President who should then appoint the judges, whose appointment should then be ratified by Parliament. They stated that the Judicial Service Commission should decide on the number of judges as they were the most competent body and then pass on the recommendation to the President,” stated the report.

Labels: JUDICIARY, KALOMBO MWANSA, RUPIAH BANDA, SYLVIA MASEBO

posted by MrK @ 4:44 AM