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No law prohibits retention of a retired judge, State argues

THE State has argued that there is no law that prohibits the retention of a retired judge or judicial staff in the judiciary on a contractual basis.

The State has argued that the petition by Livingstone magistrate Benjamin Mwelwa has neither demonstrated any illegality nor discrimination related to the retention of retired judicial officers or staff in the employment of the Judicial Service Commission on contractual basis.

This is in a matter where magistrate Mwelwa has petitioned the Constitutional Court over the retention of retired judges by the Judicial Service Commission on contractual basis and maintaining already retired judicial officers in office.

Magistrate Mwelwa, who has cited Attorney General Likando Kalaluka as the respondent in the matter, is demanding that contracts given to already retired judicial officers in the judiciary must be terminated immediately and any purported salaries, allowances and all other emoluments drawn from the time they retired and the emoluments they have drawn from the revenues of the Republic be paid back to the revenue account of the Republic of Zambia as they have been earned illegally.

According to the answer to the petition and affidavit verifying facts sworn by judiciary chief registrar Charles Kafunda, the memorandum issued by the chief administrator dated April 21,2020 communicating the Judicial Service Commission’s decision to vacate its previous policy on grant and renewal of contracts for officers after retirement, the existing contracts retaining the retired judicial officers in employment of the judiciary remain valid, binding and legally enforceable.

“The retirement of judges is provided by Article 142 of the Constitution of Zambia (Amendment) Act No.2 of 2016 which states that a judge shall retire from office on attaining the age of seventy years and also that a judge may retire with full benefits on attaining the age of 65 years,” the State said. “The retirement of judicial officers is by Article 145 of the Constitution of Zambia (Amendment) Act No.2 of 2016 which states that a judicial officer shall retire at the age of 65 years and also that a judicial officer may retire with full benefits on attaining the age of 55 years.”

It stated that statutory instrument No.7 of 2015 does not affect the retirement age of judges and judicial officers as their retirement age is in the Constitution.

The state argued that section 15(1) of the Constitution (Amendment) Act No.1 of 2016 already directs that a judge or judicial officer who held immediately before the effective date shall continue to hold office as if appointed to that office under the Constitution as amended with the option to retire in accordance with the applicable law and within the period stipulated.

The state said magistrate Mwelwa had failed and neglected to point to the provisions of the law that prohibits the engagement of a retired judicial officer on a contractual basis.

It argued that magistrate Mwelwa is misguided in his contention that the failure by Parliament to make amendments to the existing laws to bring them into conformity with the law as amended is unconstitutional therefore the relief sought is clearly an indication of the petitioner’s misapprehension and misapplication of the laws as provided in Article 142 and 145 of the Constitution section 5 and 16 Constitution (Amendment) Act No.1 of 2016.

“There is currently no judge on contract in the judiciary. Once retired there are no legal preclusions that hinder the retention of a judicial officer or judicial staff in the judiciary on a contractual basis,” said Kafunda.

He added that magistrate Mwelwa was not entitled to the relief he is seeking from the state.

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