Zambia: ‘Constitutional Amendment Bill’ threatens judicial independence

by | Aug 5, 2019 | News

The ICJ today raised concerns that the proposed Zambian Constitutional Amendment Bill 2019 may negatively impact the independence of the judiciary in Zambia.

The proposed amendments to provisions regarding disciplinary measures and processes against judges and the composition of the Supreme Court and Constitutional Court are particularly concerning, according to a statement by a group of organisations including the ICJ.

 “The ICJ implores the President of Zambia and the Zambian legislature to ensure the alignment of all constitutional amendments with international human rights standards on the independence of the judiciary, the rule of law and the separation of powers,” said Arnold Tsunga, the ICJ’s Africa Director.

The joint statement calls upon the President of Zambia and the Zambian legislature to ensure that the proposed constitutional changes are in line with international human rights standards.

According to such standards, individual judges ‘may be dismissed only on serious grounds of misconduct or incompetence, in accordance with fair procedures ensuring objectivity and impartiality set out in the constitution or the law’. Examples include ‘incapacity or behaviour that renders them unfit to discharge their duties’ and ‘physical or mental incapacity that prevents them from undertaking their judicial duties.’

Moreover, disciplinary proceedings regarding judicial officers must be held by an institution independent of the executive and the legislature to secure the independence of the judiciary.

Article 143 (a) of the Zambia Constitution currently provides that ‘a judge shall be removed from office on the following grounds: (a) a mental or physical disability that makes the judge incapable of performing judicial functions; (b) incompetence; (c) gross misconduct; or (d) bankruptcy.’

However, the Amendment Bill worryingly replaces subsection (a) and allows for removal when a judicial officer is ‘legally disqualified from performing judicial functions.’

Furthermore, the proposed amendment does not set out the circumstances or infractions that could lead to the ‘legal disqualification’ leaving the provision open to abuse and in violation of the principle of legal certainty and the rule of law.

“The amendment introduces unnecessary obscurity and vagueness to the Constitution, which, in turn, increases the risk of judges being removed on politically motivated grounds and threatens the rule of law,” Tsunga added.

Another worrying aspect of the proposed amendment is the suggested changes to Article 144 of the Constitution transferring the authority to determine whether judicial officers are removed from the Judicial Complaints Commission to a Tribunal Appointed by the President.

The amendment allows for the possibility of a Tribunal staffed by members of the executive and the legislature, further heightening concerns about threats to judicial independence.

“It is vital that the processes and procedures for the removal of judicial officers in Zambia are constrained in terms of tightly defined constitutional provisions, overseen by independent decision makers without improper influence by the executive and the legislature,” said Tsunga.

The full statement is available here.

The statement is signed by:

Commonwealth Lawyers Association (CLA)

Commonwealth Magistrates’ and Judges’ Association (CMJA)

International Bar Association’s Human Rights Institute (IBAHRI)

International Commission of Jurists (ICJ)

Judges for Judges (J4J)

Lawyers’ Rights Watch Canada (LRWC)

Southern Africa Litigation Centre (SALC)

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