Zambia’s JCC acting beyond mandate?

In making its case for removing the three judges on the grounds of alleged incompetence, Zambia’s Judicial Complaints Commission (JCC) stated that they did not qualify to be appointed to the office of judge because they lacked specialised training or experience in human rights or constitutional law.  In a Mail & Guardian analysis, Sishuwa Sishuwa says a careful reading of its conclusions shows that the JCC – itself a creation of the Constitution of Zambia – has elevated itself far above the Constitution and any other constitutional body such as the Constitutional Court, the Judicial Service Commission and the National Assembly. ‘In making its case for removing the three judges on the ground of alleged incompetence, the JCC stated that it did not qualify to be appointed to the office of judge because they lacked specialised training or experience in human rights or constitutional law, and that their nominations were opposed by the Law Association of Zambia for the same reason: "LAZ did not support the appointment of the respondents (Mugeni Mulenga, Anne Mwewa, and Palan Mulenga) and rightly so …The three respondents’ incompetence in terms of lack of requisite training and experience brings them under the ambit of Article 143 (b) of the Constitution".’

The author notes that several questions arise from this. ‘First, where did the JCC – an administrative body set up by the Constitution to receive complaints lodged against a judge or judicial officer, hear such complaints, and make recommendations to the appropriate institution or authority for action – get the authority to venture into the area of the appointment of judges? According to Zambia’s Constitution, three institutions have been mandated to deal with the appointment of judges. The first is the Judicial Service Commission (JSC), which itself is constituted by the President. The National Assembly, usually after receiving advisory but non-binding submissions from other institutions such as professional bodies and civil society, scrutinises the nominees and recommends the approved ones for confirmation of appointment to the president. Once this process is complete, the nominee becomes a judge. This process played out in 2016 when the three were appointed as judges, and all the three mentioned institutions confirmed that the trio was qualified to be appointed as judges to the Constitutional Court. Even the JCC at the time supported the appointments during the confirmation hearings.  More importantly, there is no provision under the law that empowers the JCC to review the decisions of the three institutions that have been mandated to appoint judges.’ 

Full Mail & Guardian analysis