THE idea, principle and practice of governance is anchored on the interaction of the Executive, Legislature and Judiciary. Media is a recent addition to this old triangle.
Irrespective of the national setting, whether kingdom, religious state or dictatorship, these three structures are generally present.
The difference is that in a democracy, these structures are deemed a creation of the electorate and therefore answerable to the people.
In the Zambian context, the Executive is a function of the electoral process, Judiciary and Legislature. It is answerable to all three during the life and tenure of any incumbent President.
As such, a President can be voted in or out of office – this is the electoral function. The President’s oath of office is administered by the Chief Justice or Deputy as per Article 105(1) of the Constitution – this is the Judicial function.
Continually, if a President resigns, he or she writes to inform the Speaker of the National Assembly first and similarly, it is the Speaker who receives notice of any Presidential impeachment or petition to remove Presidential immunity – this is the Legislative function. The interaction of the three functions is evident here.
The Constitution goes to great length to ensure that this high office is accessible to those it represents; that it is not isolated from the consequences of its decisions, good and bad.
The Constitution applies that same grain of steep responsibility to the Speaker so that even they can be removed from office as detailed in Article 83 of the Constitution.
The Speaker is recommended by the President or Member of Parliament from a list of qualified individuals – this is the Executive function. A secret ballot takes place to fill the position – the Electoral and Legislative functions intersect here.
The Speaker can be removed by Members of Parliament on grounds prescribed by law. Of course, there is a process on how this is done, but the point is that even the Head of the Legislature is answerable to the people, through their representatives.
Like the President, the functions that create this office have authority to end it, for a given incumbent.
Lastly, the Chief Justice is appointed by the President after recommendation by the Judicial Service Commission and ratification by Parliament.
The National Assembly ratifies because it exists as a representation of constituents that make up the nation, hence National Assembly.
Ratification of key national offices was introduced after 1991 so that accountability to the electorate is entrenched in governance. This is credit to Second Republican President Dr Frederick Chiluba who was also the country’s second democratically elected President.
Ratification, therefore, entails that the electorate or the nation agrees that the position of Chief Justice is essential to elevate the rule of law in the country’s democracy. With the Chief Justice, we see again the intersection of the three functions, but more at inception.
The Executive and Legislature are both elective offices, the Chief Justice is not. The position is not electable because matters of law, especially justice, are not meant to be popular or sway in agreement with public opinion.
Law is meant to be about facts, Justice on the other hand is fact plus fearless impartial logic. Perhaps for this reason, the Chief Justice is not impeachable.
The Constitution (Article 136 to 145) explains the appointment of the Chief Justice and Deputies including how to remove judges from office. Interestingly it is not specific or consequential on the Chief Justice in the same way it is for the President and Speaker. It is as if the interaction of the three functions of government find limitation during the incumbent’s tenure of office.
You could almost suggest, incorrectly or not, that we have a position created by the people but not answerable to them. Created through appointment by an elected President and ratification by elected Members of Parliament who cease to have oversight after appointment.
The Constitution assumes that the President or Speaker are removable from office due to whatever human frailties covered in the law, but it makes no such assumption for the Chief Justice. Indeed, the law is silent on whether the National Assembly can rescind its ratification of the Chief Justice.
One ponders, by way of conclusion, if the law is only independent when the consequences of its decisions are not borne by its officers. If immunity from popular public opinion is equivalent to accountability. That if indeed a democracy of the people elevates the law, should not the law reciprocate by being accountable?
As inferred by Justice Mutuna in a 2017 ruling: “The Judiciary is a unique organ of the State whose effectiveness in the discharge of its function of dispensing justice lies in the confidence reposed in it by members of the public. Where public confidence in the Judiciary is eroded, its orders, judgements and rulings are normally not obeyed resulting in lawlessness in a country.”
I conclude for now.
DEMOCRACY AND THE JUDICIARY – PART I
