Judiciary, judges, and the courts: A theory of the most misunderstood branch of the Zambian govt

We understand that judges of Zambia’s superior courts (High Court and above) had a meeting where they came up with a position on Bill 10 – a bill that will fundamentally alter the constitutional structure of the Republic of Zambia and perhaps turn Zambia into a banana republic. I do think that judges have a legal right to have a position on Bill 10 or any other bill for that matter. What I disagree with, however, is the characterization that the position of these honourable judges be considered as the position of the “judiciary”. To state it mildly explicit: there is no provision under the Constitution of Zambia, or any other law, where judges’ collective voice should be regarded as the voice of the “judiciary”. The Zambian judiciary, as the third branch of government, does not govern through meetings and resolutions of superior court judges, but through the judicial voices of independent courts. These courts are convened as the Local Courts, Magistrates, Statutory Courts, High Court, Appeal Courts, Supreme Court, and the Constitutional Court. It is courts in Zambia that make the judiciary, and not the collective voice of judges purportedly meeting in a large furnished room at the Supreme Court premises.

Zambian judges play several roles in our democracy. First, they represent the judicial role as arbiters of disputes in Zambia. In this role; they sit in courts; and, through courts, they speak and arbitrate disputes. Second, judges play an administrative law role. Several of our statutes invite judges to preside over some administrative law matters such as ministerial discipline tribunals, electoral tribunals and several other tribunals. When judges sit in these tribunals, their administrative law roles are subject to judicial review in the courts of law. A judge who is fulfilling an administrative law role, cannot claim judicial immunity and their action would be subject review by courts. Third, Zambian judges are afforded the same rights under the constitution as every other Zambian. Under these rights, they need to feel free to weigh in on matters that they consider essential or appropriate. They can, to this end, establish their own associations that speak about their interest. I do understand that they do have an association known as the Magistrates and Judges Association of Zambia (MAJAZ). Through this association, they can certainly have a voice or an opinion regarding Bill 10. But one thing the judges cannot do is to give the impression that once they gather together, they can become the voice of the judiciary, as the third branch of government.

The judiciary of Zambia carries out its role as the third branch of government through its courts and the judicial process, more like how members of Parliament govern through the legislative process. There is no governance of the judiciary outside the court system, in Zambia or anywhere else in the common law world. The Chief Justice of Zambia cannot create a voice of the judiciary that is outside the voice of judges through the court system and its processes. If the judges of Zambia want to have a voice on a matter they consider important, they can do so as an association of judges or whatever they call themselves, and such a view must be treated as a voice of essential players in our governance system without clothing that voice with the clothes of our constitutional categorization.

If judges have any resolutions regarding Bill 10, they should stop associating their position with the judiciary. When judges gathering together come up with an opinion on a national issue, they do so in their personal capacities. They cannot drag the judiciary into their own personal matters, no matter how valuable such a question is. If they encumber the judiciary, with their opinion, collective as it may be, they risk compromising the court system through which the judiciary is expected to speak and provide its constitutionally mandated role.

The Law Association of Zambia has sued the President of Zambia, parliament and the Attorney General of Zambia regarding Bill 10 in the Constitutional Court. It will be extremely suspicious for the judiciary to make a presentation before the parliamentary committee. Doing so will give some legitimacy to the parliamentary committee and give the impression that somehow the judiciary has given its seal of approval to the parliamentary process under which Bill 10 is being considered. To avoid appearance of impropriety, it would be necessary for the Chief Justice not to go ahead with the planned submissions before parliament. At least not in the name of the judiciary.

The author can be reached at elias@munshyalaw.com

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