OPEN LETTER TO PRESIDENT HICHILEMA ON APPOINTMENT OF CHIEF JUSTICE
Dear Mr President,
The Appointment of Chief Justice of the Republic of Zambia
FOLLOWING the death of the Chief Justice, Madam Justice Mambilima, you are required, on the recommendation of the Judicial Service Commission, to appoint someone to the office of Chief Justice of the Republic of Zambia, subject to ratification by the National Assembly.
Your predecessors, when exercising this constitutional responsibility, did so without much transparency and paying attention to the qualities of the individuals chosen to head this critical branch of government.
Accordingly, I write to ask you not to embrace the practice followed by your predecessors in the appointment of the Chief Justice and other Judges of the Superior Courts.
Previously, the process of appointing Judges was a sham: it did not have any semblance of transparency or fairness. It eroded the independence and integrity of the Judiciary and institutionalised political nepotism in the Judicature.
During the reign of your predecessor, some competent Zambians were denied appointment as Judges of the Superior Courts because they were considered not “user-friendly.”
The consequence has been the emergence of a Judiciary that does not command the respect of the people it is supposed to serve. Today, going to Court is like going to a Casino in that there is no consistency in decision-making.
The outcome, in most case, is a matter of chance. The decisions are rarely informed by the law and facts governing the case but by other variables, such as the intellectual capacity, temperament and experience of the Judge, parties to the proceedings and whether the Judge is receptive to bribes.
The independence of the Judiciary became a fiction. The Judiciary was reduced from a branch of government co-equal with the Executive and Legislature to a department within the Executive branch of government. It failed to check on the lawlessness of your predecessor and in certain instances the Judges legalised it.
Some Judges became openly partisan and fiercely defended the personal interests of your predecessor in appreciation for the appointment or promotion within the judicial hierarchy.
Until August 12, 2021, some Judges did not know and those that knew forgot or ignored that the sovereign authority did not belong to the President but to the people.
Mr President, whilst you are obliged by the Constitution, where necessary, to ensure regional diversity in appointments to public offices, the concept should not be employed to justify the appointment of an unfit person to the office of Chief Justice.
The reasoning is very simple, your mandate is subject to renewal by the people every five years through a general election. Most of the people appointed to these public offices are your delegates. They will serve at your pleasure and your successor can reverse your appointments.
However, a Judge’s tenure is protected. Except for fault, a Judge will hold office until the age of seventy or retire early at sixty-five. An unfit person appointed to the office of Chief Justice of will undermine the Judiciary and rob the taxpayers until retirement.
The choice of the next Chief Justice must, therefore, not be informed by partisan, ethnic, regional or even personal considerations but by the ideal that merit, hard work, a clean track record and honesty will be recognised and rewarded. This is what will set you apart from your predecessors and Zambia from other emerging democracies.
For the first time in the history of this country, I implore you Mr President to allow the position of the Chief Justice to be publicly advertised, followed by a transparent and rigorous process to find the most qualified, competent, and experienced person to head the Judiciary. The woman or man who will emerge from this process as Chief Justice should be someone with an active conscience, a keen mind committed to fairness and reform of the Judiciary, and a person of unquestionable integrity. She or he should be someone who has never abused public trust and with a demonstrable devotion to scholarship and a willingness to learn, to understand better, to judge better.
The Judicial Service Commission must invite interested people to apply for the vacant position and publicly interview them. The people, whose power the Chief Justice will exercise and in whose name she or he will sit to dispense justice, must have a say in the choice of their Chief Justice.
In the future, and subject to the overhaul of the Constitution, all appointments of Judges of the Superior Courts must follow the same rigorous, open, and competitive process.
There are advantages in subjecting the candidates to an open, competitive, and fair process.
The procedure will give all Zambians equal opportunity to apply for the highest job in the Judiciary. Given the experience of the last ten years, such a process is crucial in restoring public confidence in the integrity and independenc of the Judiciary.
Cc: The President Law Association of Zambia
The Chairperson – Judicial Service Commission