Zambia’s constitutional court strongly backs judicial independence

15 September 2023 · Carmel Rickard

Zambia’s constitutional court has found parliament in breach of the constitution by not passing legislation to ensure the full financial independence of the judiciary and that it is adequately funded. In a decision strongly underlining the principle of judicial independence, the court has ordered that until these laws have been passed and put into effect, the minister for finance should report to parliament every six months on what has been done to ensure financial independence of the judiciary. Ironically, the challenge was brought by Zambian counsel, John Sangwa. In March 2020, the chief court registrar informed all the country’s judges and magistrates that Sangwa was no longer allowed to appear in court because of a ‘malpractice complaint’ filed against him by the lawyers’ association of Zambia. This ‘complaint’ followed a ‘denunciation’ of Sangwa by several judges after Sangwa was critical of certain new judicial appointments. He had also criticised the government when the former president, Edgar Lungu, announced he would stand again for the presidency, even though, in Sangwa’s view, he was ineligible.

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Seven judges of Zambia’s constitutional court have been considering a legal challenge brought by one of that country’s most prominent lawyers, John Sangwa. His challenges dealt with how to improve the independence of Zambia’s judiciary, by, among others, ensuring judges were financially independent.

Sangwa asked for an order compelling the minister responsible for finance to put measures in place that would ensure the judiciary became a ‘self-accounting institution’, as stipulated in the constitution, and to ensure that it was ‘adequately funded’ every financial year, as constitutionally required.

He also wanted the court to declare that the minister responsible for finance was in breach of the constitution for not initiating legislation that would ensure the judiciary was financially independent.

Vacuum

The court begins its decision by saying it was aware that the issues raised in the petition affected their ‘pecuniary interest’ because the members of the court benefit from the Judges (Conditions of Service) Act. But the seven conclude they have to go ahead with the matter: ‘the doctrine of necessity requires us to still determine this matter in line with our constitutional mandate.’

Counsel for Sangwa argued that the absence of a legal framework to safeguard the financial autonomy of the judiciary ‘creates a vacuum that undermines the financial independence and ultimately the institutional independence of the judiciary.’ For this reason, Sangwa wanted a court order directing the minister to put the necessary measures in place to secure the judiciary’s financial independence.

There ought to be legislation establishing a separate judiciary fund that would allow the judiciary to settle its expenses separate from the office of the treasury, he said. The absence of such legislation ‘demeaned’ the judiciary and required it to go to the executive ‘cap in hand’ to get the funds it needed to operate.

As a self-accounting body, the judiciary should be able to prepare and present its own budget to the executive for commentary before being tabled at the national assembly for debate and approval.

Direct threat

The law association of Zambia, as an interested party, essentially supported Sangwa’s position. It argued that some sections of the law were ‘a direct threat to the independence of the judiciary because it created a perception that the judiciary was at the mercy of the president.’

As far as the attorney general was concerned, however, these concerns were baseless since the judiciary had ‘functional independence’ as the constitution required.

The AG also argued that the process of ‘facilitating the independent of the judiciary was already underway’ and the petition had thus been ‘overtaken by events’.

Cardinal

What would the constitutional court say?

First, it recapped the three main issues for decision: did sections of the JCSA breach the constitution by allowing the president to prescribe judges’ salaries and conditions of service; did ‘statutory instrument no 80 of 2018’ which deals with judges’ salaries as prescribed by the president, contravene the constitution, and finally, was it a breach of the constitution for the minister responsible for finance not to have enacted laws or other measures that would promote the financial autonomy of the judiciary?

Clearly, both individual and institutional independence were ‘cardinal’ to ensure judicial independence, said the court. But this case only concerned its financial independence. The constitution envisaged a self-accounting, adequately funded, judiciary that dealt directly with the ministry responsible for finance. It needed ‘sufficient institutional and operational autonomy to shield the judiciary from … real influence and interference’ from the other arms of government.

First time raised

Since the issue of the financial autonomy of Zambia’s judiciary was being raised for the first time in this case, the court had to take note of how other jurisdictions, the UN and similar bodies had dealt with the issue. While there was a wide range of responses to the question of the level of autonomy needed, there was general agreement that there should be ‘enhanced involvement’ of the judiciary in the budgeting process and the disbursement of funds.

The court also considered the World Bank’s 2022 report entitled, ‘Zambia Judicial Sector: public expenditure and institutional review’ and endorsed its finding on the need for the judiciary to take a ‘more active role’ in the budgetary process, and to have a ‘guaranteed, adequate share of the national budget’.

For the constitution to be satisfied, the judiciary should have control over the ‘financial accounting function’: the preparation of the budget and accessing funding should not be hampered by the executive’s discretion over the level of funding and access to it. Parliament had to pass legislation ensuring that the judiciary was adequately funded. But the funds, once approved by parliament, had to be controlled by the judiciary which in turn had to be accountable for the funds.

Independence enhanced

The new Judiciary Administration Act was a step in the right direction and largely dealt with the issue of administrative independence. But the constitutional requirement for the financial independence of the judiciary to be ‘enhanced’ should be the guiding principle for the relevant minister. Current laws on their own didn’t adequately deal with these issues, something dealt with in the World Bank report.

The court said it thus firmly believed that the budget process for the judiciary had to be addressed to bring it in line with the constitution. And one of the key issues in ensuring financial independence was access to funds and disbursement, matters where the executive had a crucial role in deciding whether the judiciary accessed ‘even the funds that are appropriated by parliament.’

Clearly, therefore, the financial independence of the judiciary hadn’t been adequately addressed: the legislature hadn’t passed appropriate legislation, while the minister responsible for finances hadn’t put up policy measures that squared with the constitution on this matter.

‘This is … a contravention of the constitution and must be addressed by parliament and the [AG] in consultation with the judiciary as a matter of urgency.’ The court also noted that the issue had been outstanding for many years, since the 2016 constitutional amendments.

Priority

The judges thus declared the AG in breach of the constitution since laws and other measures needed to ensure the judiciary was ‘fully financially independent and adequately funded’ were still not in place. They ordered parliament to ensure the necessary laws were passed ‘as a matter of priority’, and said that the minister should submit reports to parliament every six months on the progress being made on the matter.

The remaining questions raised by Sangwa didn’t need the court to intervene, said the judges, and each party was ordered to bear its own costs.

It’s interesting that this important case, based on a strong belief in the principle of judicial independence, was brought by Sangwa, someone targeted by members of the judiciary in 2020 over his complaints that certain judges had been appointed without meeting the constitutional minimum for office. He had also contested the decision by former president, Edgar Lungu, to run for office a third time, when, in Sangwa’s view, the constitution stipulated that this was not allowed.

Sangwa was, at the time, effectively barred from appearing in court as a result of the judges’ actions against him, and a number of international legal bodies protested at the step. Despite that experience, however, here he is, in this case, continuing his mission to ensure a properly qualified, independence judiciary in Zambia, as mandated by the constitution.

Carmel Rickard

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