By Esther Chisola
Attorney General Mulilo Kabesha has told the Constitutional Court that the procedure to appoint all the judges serving in the Constitutional Court was duly followed as provided for by the law.
And Kabesha submitted that the judges serving in the Constitutional Court went through the full vetting process and their names were duly ratified by Parliament.
In this matter, former Katuba member of parliament Bampi Kapalasa petitioned the state in the Constitutional Court, seeking an order to nullify the appointment of all judges of the Constitutional Court, excluding president professor Margaret Munalula.
He wants the Court to declare that all judges of the Constitutional Court, with the exclusion of Judge Munalaula,on their date of appointment as judges of the Constitutional Court, did not have speclised training or experience in human rights or Constitutional law.
Kapalasa wants an order nullifying or reversing all decisions delivered by the judges of the the Constitutional Court, as the said decisions were delivered by judges who did not qualify to hold office of judge of the Concourt and were not competent to deliver the judgements.
He is also seeking an order among others directing all judges of the Constitutional Court with the exclusion of the president, to vacate office for failing to meet the the requirements of Article 141(b) and 141(2) of the constitution of Zambia Chapter 1 volume 1 of the laws of Zambia as amended by the constitution of Zambia (amendment) Act no.2 of 2016 of the laws of Zambia.
In his petition, Kapalasa argued that all the persons appointed to be judges of the Constitutional Court with the exclusion of the judge president did not qualify to be appointed and hold or maintain their respective appointments as judges of the Concourt.
But in the respondent’s skeleton arguments filed, Kabesha submitted that the National Assembly ratified the appointment of all the judges.
He further stated that their appointment was not in breach of Article 141(1)(b) of the Constitution as alleged by the petitioner’.
Kabesha submitted that the court had on several occasions interpreted what constituted specialised training, experience in Constitutional or Human Rights Law in the case of Isaac Mwanza & Maurice Makalu V AG – 2023/CCZ/005.
“It is our considered view that Article 141(1) (b) entails that for one to qualify for appointment as a Constitutional Court judge, that person must possess at least one of either specialised training in human rights or Constitutional Law or they must have experience in human rights or Constitutional law,” he stated. “That is to say, if one only has specialised training in human rights or Constitutional Law, that person qualifies for appointment as a Constitutional Court judge even though they do not have experience in human rights or Constitutional Law and vice versa.”
He further submitted that Article 141 had already been interpreted by the court to the effect that a person qualified to hold the office of judge of the Constitutional Court if that person either had specialised training in human rights or Constitutional law or had only experience in human rights or Constitutional law.
Kabesha contended that the current judges of the Constitutional Court were qualified in terms of article 141(1)(b) and article 141(2) of the constitution of Zambia and are properly in office.
“In the case of MICHELO CHIZOMBE V AG and 2 others, this court stated that, “it is clear that the Apex courts in common law and other jurisdictions enjoy unfettered inherent powers to review or depart from their previous decisions in exceptional circumstances.”
“The courts have, however, been careful to state that they will only review or depart from their previous decisions in exceptional and compelling circumstances so as to meet the ends of justice where the previous decision was clearly wrong.”
He further contended that the petitioner’ had not demonstrated what was wrong with this court’s decision in Isaac Mwanza and another v AG, that this court should depart from its interpretation of article 141(1)(b) and 141(2) in that case.
“We submit that the interpretation of article 141(1)(b) and article 141(2) is res judicata as it has already been a subject of interpretation before this court and the petitioner’ has not demonstrated or given reason why this court should depart from its decision in Isaac Mwanza and another v AG,” he stated.
Kabesha submitted that the petitioner had not exhibited the CVs of the Constitutional Court judges to show that the judges did not qualify but had in Paragraph 11 of his affidavit verifying facts pointed the court to the judiciary website.
He stated that the only way to show that the judges did not qualify was through exhibiting the CVs which the petitioner had not done in this case but was merely relying on information obtained from the judiciary website which showed that some profiles of the judges had not been updated accordingly.
Kabesha contended that in the absence of a factual basis upon which the court should exercise its jurisdiction, the whole process would be an academic exercise that would result in the court wasting its time and resources to deal with real issues.
“We pray that this court does not grant the reliefs sought by the petitioner. The respondent has demonstrated that the appointment process of all the judges in the Concourt was duly followed and that article 141 (1) (b) of the constitution has been intercepted by this court in the case of Isaac Mwanza and Maurice Makalu V AG and as such is res judicata,” stated Kabesha.
