Following the death of Zambia’s Chief Justice Ireen Mambilima on 20th June 2021, there has been wide circulation of misinformation and concerns from the general public surrounding the appointment of a new Chief Justice by the President. This was further compounded by the fact that Justice Mambilima died just before the elections which resulted in a change of Government. Zambia Today Facebook page published an article quoting John Sangwa State Council (SC) advising President Hakainde Hichilema to subject the filling in of the vacant position of Chief Justice to a competitive and transparent process before it is taken to Parliament for ratification. This process would include advertising the position and conducting public interviews.
The fact checking process has established the claim by John Sangwa in the article that the position of Zambia Chief Justice can be advertised as misleading. Zambia consists of three arms of Government, namely the Executive, Legislature and Judiciary. The Executive is responsible for the daily administration of enforcing the laws, formulating and implementing policies in the country and is headed by the Republican President. The Legislature is responsible for making laws, repeals, amends and providing other oversight roles and it is headed by the speaker. The Judiciary is responsible for interpreting the laws made by the legislature, and has the power to adjudicate over legal matters and decide on legal disputes through courts. It is created by the Constitution and is headed by the Chief Justice. Following the death of Chief Justice Ireen Mambillima on 20th June 2021, the position has been vacant and is being temporarily headed by deputy chief Justice Michael Musonda. In line with these arms of Government, the principle of separation of powers must be applied. This means that there should be no overlap in the powers and functions of the different arms of Government. It sets limits on the work of the Judiciary, the Legislature and the Executive; and it provides checks and balances that prevent abuse of power by any of the three arms of government. In line with the claim by John Sangwa SC, the current process has lacked semblance of transparency or fairness. The appointment of the Chief Justice by the president has caused a dependence of the Judiciary on the Executive as there is no separation of powers with the Chief Justice (Judiciary) being appointed by the President (Executive). Mr. Sangwa said the consequence of this process has been the emergence of a Judiciary that doesn’t command the respect of the people it is supposed to serve. In response to Mr. Sangwa’s letter, the Law Association of Zambia (LAZ) stated that The Chief Justice of the Republic of Zambia is appointed by the President upon the recommendation of the Judicial Service Commission (JSC), in line with Article 140 of the Constitution of Zambia. According to Article 216 of the Constitution, all Service Commissions, including the JSC, shall be subject only to the Constitution and be independent and not be subject to the control of a person or an authority in the performance of its functions. In this regard, Section 23 of the Service Commissions Act, No. 10 of 2016, permits the JSC to regulate its own procedure. In regulating its procedure, the JSC is at liberty to adopt a more transparent method of scrutiny of candidates before it makes its recommendation to the President. LAZ advised the President to stay clear of the process to be adopted by the JSC in its function of making recommendations to him. Furthermore, the Chief Justice of the Republic of Zambia is appointed by the President upon the recommendation of the Judicial Service Commission (JSC), therefore, it is not an independent decision by the President.