The decision by the Supreme Court to give the President unfettered powers to carpet judges is a disaster that must be corrected at the earliest possible opportunity.
No one person however powerful should have such power as to remove or suspend a judge at will. There must always be an oversight process that must ensure legitimacy and propriety of executive decisions.
It is a very well known adage that Power corrupts and absolute power corrupts absolutely, therefore no one person should be given the absolute power to determine the function of such an important arm of governance as the Judiciary.
The security of tenure enshrined in the constitution must be buttressed by statutes that make it impossible to subvert tenure otherwise, as the case has proved, such tenure is an academic exercise that can be dispensed with at the whim of the President.
The Presidency may indeed be the ultimate authority but those who occupy the office are human being with foibles and predilections that may not necessary be in tune with good governance.
The History of Africa is replete with stories of gross abuses of law where authority was vested in individuals without appropriate checks and balances.
The Supreme Court has infact created a two track judicial complaints system. One which the president personally controls and is reserved for those close to him and the one which the rest of society must approach as enshrined in the Judicial Complaints Authority. This is wrong.
It is our hope that the Technical committee drafting the current constitution will seal the loophole created by the Supreme Court to ensure that Judges and indeed the courts are protected from the “unfettered” powers of the President who may not always exercise his power in the best interest of the nation.
Article 98(3) of the Constitution is a dangerous provision, as it simply states that if the President considers that the question of removing a judge arises, he may appoint a Tribunal and suspend the Judges. In effect this allows the President to pander to the whims of his friends who may have grudges against Judges who rule against them.
The Article makes no reference whatever to the Judicial Complaints Authority, which in normal circumstances must have primary responsibility to hear complaints against judges.
It therefore means that friends of the President have a fast track opportunity to have judges suspended or disciplined, while the rest of the Zambian Society must depend on Article 91(3) which provides for the independence of the Judiciary and the role of the JCA.
It is wrong and discriminatory to have such laws which are segregative and totally unfair in application.
What factors influenced the decision of the Supreme Court on the “Chikopa” Tribunal may never be known, but a number of factors are clear. Two of the Judges as we have said before are retired and are totally dependent on the benevolence of the President for their continued stay on the bench. One other Judge among those who upheld the state appeal has reached retirement age.
That is why speculation will continue to haunt the judgment, a situation that should never happen.
The moral of the story being that retired Judges should never be given sensitive cases which might appear to jeopardize their tenure.
It is for this reason that only those Judges whose security of tenure is guaranteed should serve in such positions as Chief Justice because they will at times be required to take decisions that are against the wishes of the President.