An Analysis of Zambia's Proposed Constitutional Amendments

No.2 of 2019

Amanda Shivamba

SALC Policy Brief

An Analysis of Zambia’s

Proposed Constitutional

Amendments Relating to the

Judiciary

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Overview

The Zambian Constitutional Amendment Bill was released for public comment on 21 June 2019. Section 79

of the Constitution provides that a Bill which seeks to amend the Constitution must be published in the

Gazette 30 days before its first reading. On the second and third readings the Bill must be supported by two

thirds of all members of the National Assembly in order to be enacted into law. This Policy Brief considers

some of the proposed constitutional amendments relating to the Judiciary. The current Zambian

Constitution provides for the independence of the judiciary. Article 122 of the proposed Bill states that “the

Judiciary shall be autonomous and shall be subject only to this Constitution and the law and not subject to

the control or direction of a person or an authority”. This is to be commended, but it remains necessary to

scrutinize the other proposed constitutional amendments in order to ascertain whether they may result in

political interference with the judiciary.

Judicial Independence

International Principles of Judicial Independence

According to the OHCHR Basic Principles on the Independence of the Judiciary; the independence of the

judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. The

principles state further that there shall not be any inappropriate or unwarranted interference with the judicial

process and that it is the duty of all governmental and other institutions to respect and observe the

independence of the judiciary. Therefore, when making any amendments to provisions relating to the

judiciary, policymakers need standards against which they can measure the current performance of the

judiciary in order to make meaningful changes. The African Charter on Human and Peoples’ Rights provides

a right to an “impartial tribunal” as well as a state duty to “guarantee the independence of the Court.”

Composition of Zambian Courts

The proposed Constitutional Amendment Bill is replete with the phrase “as prescribed”, removing much of

the detail in the current Constitution to legislation.

This is the case with the stipulated number of judges to make up the various courts. These prescriptions can

be found in the Court of Appeal Act, 2016 and the Constitutional Court Act respectively. In addition to the

number of judges being removed from the Constitution, we also see Article 127 being amended so that the

Constitutional Court comprises of a Chief Justice and a President.

Different approaches have been taken by judiciaries in the Southern African Region. Some constitutions

provide for a stipulated number of Judges, as is the case with Zimbabwe, whilst others leave it to be

prescribed by subordinate legislation, as is the case with Botswana. Furthermore, there is no uniform position

on whether the Judiciary should be headed by a President or a Chief Justice, as this also differs across the

region. In the case of Zambia, it is unclear as to whether the proposed amendments will have a remarkable

impact on the independence of the judiciary. A brief analysis of the composition of other regional judiciaries

as stipulated in their respective constitutions is done below:

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Country

Constitutional Court

Supreme Court or Court of Appeal

Botswana

Does not have a Constitutional Court.

The Court of Appeal is constituted of the

President of the Court of Appeal, such

number, if any, Justices of Appeal as may be

prescribed by Parliament and the Chief

Justice.

Zimbabwe

Consists of the Chief Justice, Deputy

Chief Justice, and no fewer than two

other judges of the Court and any

additional ones appointed as required.

Supreme Court consists of the Chief Justice,

Deputy Chief Justice, no fewer than two other

judges and any additional judges as required.

Eswatini

Does not have a Constitutional Court.

Chief Justice and no less than four other

judges of the Supreme Court.

South Africa

Consists of the Chief Justice, Deputy

Chief Justice and nine other judges of the

Court. A matter in this Court must be

heard by at least 8 judges.

Consists of a President, Deputy President and

the number of judges determined in acts of

Parliament.

If the State wants the constitution-making process to be open and transparent, it would be best

served by stating why it is proposing certain amendments. Proposing changes without explaining

the rationale therefore contributes to mistrust.

Procedure for the Removal of a Judge

Under any jurisdiction, the question of when and how a judge may be removed from office is of

vital importance to the rule of law as there is the threat to judicial independence when the removal

process is used to penalise or intimidate judges. On the other hand there is always the danger of

a judge engaging in serious misconduct and requiring immediate removal to uphold the rule of

law. In order to strike the correct balance between these concerns, it is paramount that any

procedure for the removal of a judge should include appropriate safeguards to ensure fairness.

In Zambia, the Judicial Complaints Commission (JCC) is established in terms of the Judicial (Code

of Conduct) Act 13 of 2006, Article 24 states that the JCC has the authority to:-

a) Receive any complaint or allegation of misconduct and to investigate any complaint or

allegation made against a judicial officer, Provided that where, in the opinion of the

authority a complaint or allegation of misconduct made against the judicial officer does

not disclose any prima facie case, the authority may dismiss such a complaint or

allegation without investigating the complaint or allegation; and

b) Submit its findings and recommendations to—

i. the appropriate authority for disciplinary action or other administrative action;

and

ii. the Director of Public Prosecutions for consideration of possible criminal

prosecution

c) The appropriate authority or the Director of Public Prosecutions shall, where a report

is made by the authority under subsection (1), notify the member against whom the

report is made within seven days from the date the report is received and shall

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thereafter notify the authority of the action taken, if any, on the authority’s

recommendation.

The current Constitution provides that the removal of a judge may have been initiated by the

Judicial Complaints Commission or by a complaint made to the Judicial Complaints Commission.

Article 144 of the proposed Bill now removes this oversight function from the Judicial Complaints

Commission and gives it to the Judicial Service Commission, furthermore the President must now

appoint a Tribunal, which consists of a Chairperson and 2 additional members (who hold or have

held the office of a Judge). The Tribunal shall hear and determine the matter against the Judge

and shall recommend to the President for either the re -instatement or the removal of the Judge,

of which the president must then act on the recommendation. Basically , the Tribunal shall now

hold the functions which the Judicial Complaints Commission previously held of hearing and

determining a matter regarding a complaint against a Judge. However, the responsibility for the

appointment of members of the Tribunal rest with the President.

A brief analysis of the procedure for the removal of a judge in other regional jurisdictions indicates

that some of the proposed amendments to the Zambian Constitution relating to the Judiciary do

not stray too far from other existing constitutions in Southern Africa.

Country

Authority to Remove a Judge

Composition of Tribunal/Commission

Botswana

If the President considers that the

question of removing a judge of the High

Court under this section ought to be

investigated then he shall appoint a

Tribunal.

The tribunal shall consist of a Chairman and

not less than two other members, who hold

or have held high judicial office. The tribunal

shall enquire into the matter and report on

the facts thereof to the President and advise

the President whether the judge ought to be

removed from office.

Zimbabwe

If the Judicial Service Commission advises

the President that the question of removing

any judge, including the Chief Justice, from

office ought to be investigated, the

President must appoint a tribunal to inquire

into the matter. The tribunal must report its

findings to the President and recommend

whether or not the judge should be

removed from office. The President must

act in accordance with the tribunal’s

recommendation.

A Tribunal appointed under this section

must consist of at least three members

appointed by the President.

Eswatini

The King is to refer a matter regarding

removal to the Judicial Service Commission

for investigation. The Judicial Service

Commission will inquire and recommend

action to the King. King will then act on the

recommendation of the Commission.

No Provision for a Tribunal

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South Africa

The removal of a judge is done by the

President following consultation with the

Judicial Service Commission. The

Commission has a Judicial Conduct

Committee. Any person may lodge a

complaint about a judge with the

Chairperson of the Committee.

The Judicial Service Committee may

recommend appointment of a Tribunal in

respect of impeachable complaints and the

Chief Justice must appoint a Judicial

Conduct Tribunal, whenever requested to do

so by the Commission.

A Look at Best Practices

The UN Basic Principles on the Independence of the Judiciary of 1985, stipulates that “judges shall be

subject to suspension or removal only for reasons of incapacity or behaviour that renders them unfit to

discharge their duties” and that “all disciplinary, suspension or removal proceedings shall be determined in

accordance with established standards of judicial conduct” and that the proceedings be subject to

independent review.

The Human Rights Committee, in its General Comment No. 32 on the right to equality before the courts,

recommended that States should establish clear procedures and objective criteria for the suspension and

dismissal of members of the judiciary.

The 2018 Report of the Special Rapporteur on the independence of judges and lawyers submitted

to the Human Rights Council, emphasized that “the responsibility for disciplinary proceedings

against judges should be vested in an independent authority (such as a judicial council) or a court.”

The report emphasized that the executive branch should not have any role to play in a disciplinary

body. The report highlighted the importance of judicial councils in guaranteeing the independence

and autonomy of the judiciary. Given this appointment, their role should be stipulated in the

Constitution itself. In Zambia, Section 5 of the Service Commissions Act says that the President

may give general directions to the Judicial Service Commission, which suggests that the

implementing legislation itself is not without concern. In addition, the members of the Judicial

Complaints Commission (previously the Judicial Complaints Authority) are currently appointed

by the President but subject to ratification by the National Assembly. The Secretary to the

Authority is appointed by the President acting on his own.

A 2015 analysis of best practices on the appointment, tenure and removal of judges in the

Commonwealth provides a useful framework in which to assess the proposed constitutional

amendments.

There are several models for the removal of judges in Commonwealth jurisdictions. These are by

way of:

1) Ad-hoc tribunals;

2) Disciplinary processes;

3) Mixed processes (disciplinary and parliamentary); and

4) Parliamentary processes

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Several Commonwealth jurisdictions contain constitutional provisions authorizing the

establishment of ad-hoc tribunals to inquire into specific allegations of judicial misconduct or

incapacity. The function of the tribunal is to inquire into the facts alleged to constitute grounds

for dismissal and to make a recommendation which is either immediately binding on the executive

or, in some cases, subject to appeal or mandatory referral to a court. Once the determination of

the ad-hoc tribunal has become final, the Head of State is then usually responsible for the formal

act of removal from office, as is the case with the proposed Bill in question.

According to the Commonwealth principles, in order t o determine how a tribunal process might

operate fairly, it is necessary to consider questions which arise at different stages of the process:

1) Who is responsible for deciding whether to institute a tribunal inquiry,

2) How any allegations against a judge are investigated and whether the judge is given an

opportunity to respond before the decision is made;

3) How the members of the tribunal are selected and who selects or approves them;

4) If the judge is liable to be suspended while tribunal proceedings are pending, how and by

whom that decision is made;

5) How tribunal proceedings are conducted, including both procedural and evidential aspects

and the provision of reasons for the tribunal’s decision; and

6) Whether tribunal decisions are subject to review, appeal or confirmation by a court.

In many of the Commonwealth jurisdictions which adopt the use of ad-hoc tribunals, there is little

provision in the constitution or in subsequent legislation, governing the procedure to be followed

by a tribunal which would answer the aforementioned questions, this is also the case with the

proposed Zambian amendments. It is often the case that, to ensure independence, a tribunal is

empowered to regulate its own procedure. However, advanced regulation would be preferable,

not only for legal certainty but also to guard against the pressure to craft rules of procedure in

response to a particular set of alleged facts which will ultimately undermine the rule of law.

Conclusion

In order to ensure that amendments to the Constitution will uphold the rule of law, law makers

in Zambia need to be cognisant of international law principles and standards. It is also important

to observe the processes being adopted in neighboring countries in the region in order to ascertain

whether the adoption of new legislation is likely to be effective in the Zambian context. Concerns

about the proposed constitutional amendments have been raised by the Zambian Law Society,

opposition parties, civil society as well as the public at large. Any threat to the independence of

the judiciary is a serious issue that, if left unattended, can result in a grave undermining of the

rule of law. Constitutional amendments should accordingly be deliberated on with care to

safeguard against this risk.