The decision by President Sata to appoint Justice Lombe Chibesakunda as Chief Justice and submit the name to Parliament is unconstitutional and therefore invalid, says NAREP president Elias Chipimo Jnr.
As a consequence, the National Assembly has no jurisdiction to determine the candidature of a person that has already passed the retirement age for judges as set out in the Constitution.
The law association of Zambia has already rejected the appointment.
“At 69 years of age any consideration by Parliament of her candidature would therefore contravene Article 98(1) of the current Constitution which stipulates that “a judge of the Supreme Court …shall vacate that office on attaining the age of sixty-five years,” said Mr Chipimo Jnr
However, it also goes on to state that if the office of the Chief Justice is vacant then until a person has been appointed to that office, the President may appoint the Deputy Chief Justice or a Judge of the Supreme Court to perform such functions.
“This is in fact what the President has already done. Should he attempt to go beyond this and ask for ratification by the National Assembly, he will be going out of bounds,” said Mr Chipimo Jnr
A person that has served as a judge of the High Court or the Supreme Court and attained retirement age can only continue to serve in such capacity if the President (and not the National Assembly) permits that person to do so and in such a case, the extension can only be for a maximum period of 7 years.
“There is therefore nothing stopping the President from extending the service of Justice Chibesakunda as an ordinary Supreme Court Justice (but not in a promoted position) up to a maximum 7 year period but submitting her name to the National Assembly for approval would violate the Constitution.
Mr Chipimo explained that notwithstanding the obvious qualities of Justice Chibesakunda, the reason why it was not desirable to continue to engage a person to act as Chief Justice after they have reached the retirement age was that this could have the effect of undermining the independence of the judiciary in the eyes of ordinary Zambians.
He said when judges were appointed and had not reached retirement age, they enjoyed what was called security of tenure – meaning they could only be removed if they have committed some form of misconduct.