The Supreme Court has ruled that Judges, who retire at 65, are not eligible for appointment to higher office; therefore neither the current acting Chief Justice Lombe Chibesakunda nor her Deputy Florence Mumba can be appointed to the positions they are acting in because they retired as Supreme Court Judges- the positions to which they must serve on contract.
The Supreme Court ruling settles controversy in the Judiciary over the appointment of substantive officers for the two senior positions of Chief Justice and the Deputy.
The ruling was made in a case brought by Faustine Kabwe and Aaron Chungu who challenged the appointment then Chief Justice Ernest Sakala and Justice Peter Chitengi who were serving beyond their retirement age without ratification by the National Assembly.
Representing the two, Lusaka Lawyer John Sangwa argued that the two supreme Court Judges should have been ratified having reached their retirement age.
He argued that in a democracy anchored on separation of powers, checks and balances between the organs of state, the President acting alone had no authority to confer judicial authority to anyone.
He argued that ratification was important and crucial for the independence and integrity of the Judiciary as it enhanced public confidence in Judges and ultimately in the Judicial system.
He added that ratification of appointments was specifically demanded by the people in order to secure the independence of the Judiciary.
In his view, a judge who had been ratified by the National Assembly would not owe allegiance to the President or National Assembly but to the constitution and the law.
Ratification, he insisted, was the only way of ensuring that a person appointed as Judge was suitable for the job.
He argued that the appointment of Justice Sakala and Chitengi was shrouded in secrecy “ In that it is not known when they were appointed; the period they were expected to serve; the reasons why the President deemed it necessary to appoint them; and, who initiated the process.”
The Supreme Court presided over by Judges Mambilima, Chirwa and Mwamwamba disagreed that that judge’s appointment on extended contract after reaching retirement age should be ratified by the National Assembly.
Such Judges, they said were specifically appointed to serve up to a maximum of seven years on the substantive positions on which they had retired.
“The Presidential reappointment under Article 98(1) (b) can only be invoked in respect of a judge who has reached the age of 65 to continue in office in which they were ratified,” they ruled.
It was therefore, in order for Justice Sakala to continue in his office as Chief Justice and Judge Chitengi to continue because they were serving in positions in which they had been ratified by the National Assembly.
The Judges agree with Mr. Sangwa that “Our constitutional democracy is anchored on separation of powers, checks and balances between the organs of state,” they said.