The achievements of Justice Chibesakunda are tremedous. She is one of the magnificent jurist in the history of our Country.
Justice Lombe Phyllis Chibesakunda was Born on May 5, 1944 in Zambia, then called Northern Rhodesia. She did her secondary school at Chipembi Girls’ School and then went to National Institute of Public Administration.
Justice Chibesakunda has a Postgraduate diploma in International Law, Australian National University, Australia. She is a Barrister at Law, Grays Inn, United Kingdom. Her legal practice dates far back as the late 1960s. She is an epitome of women success as first woman lawyer in Zambia in 1969. In 1973 to 1975, she became the first woman Solicitor General in Zambia and Africa, won an award from Pope John Paul II (Pope Pius XIII award). She was the first woman to become a Judge in Zambia and became a Supreme Court Judge in 1997. In 1988 and 1998 she scooped the Woman of the Year awarded by the Government of Zambia.
She has administered and chaired a number of institutions including the Permanent Human Rights Commission and monitored the implementation of international human rights obligations by the Government. Her achievements took her to the level of Ambassador of Peace in 1999.
Every well meaning Zambian definitely appreciates and adores Justice Chibesakunda for her achievements as a woman and as a Zambian. Unfortunately her appointment as Acting Chief Justice, after hounding out Justice Ernest Sakala, last year in June seem to be taking away part of her glory.
The Constitution of our Country on the part of appointment of Judges of the Supreme Court (Article 93 (3)) states that
“If the office of Chief Justice is vacant or if the Chief Justice is on leave or is for any reason unable to perform the functions of his office, then, until a person has been appointed to, and has assumed the functions of, that office or until the person holding that office has resumed those functions, as the case may be, the President may appoint the Deputy Chief Justice or a Supreme Court judge to perform such functions.”
When Justice Ernest Sakala was hounded out of office, President Sata appointed Justice Chibesakunda who was a Supreme Court Judge at the time, hence she qualified and the appointment was legal thus far.
On the other hand Article 98(1) of our Constitution guides that
”a person holding the office of a judge of the Supreme Court or the office of a judge of the High Court shall vacate that office on attaining the age of sixty five year“.
Following this article 98(1) Justice Chibesakunda’s appointment, as Acting Chief Justice, falls out of the law because she was 68 years old when she was appointed and now she is 69 years old. However, the president is exploiting a loophole in our Constitution to give a job to his own using the Article 98(1b) which states that
“the President may appoint a judge of the High Court in accordance with the advice of the Judicial Service Commission or a judge of the Supreme Court, who has attained the age of sixty-five years for such further period, not exceeding seven years, as the President may determine.”
In this case mathematically we would say 1 x 0 = 0. When a Judge reaches 65 years, he/she must go, but the President can appoint such persons, in special circumstances to work as Judges or Puisne Judge for a period not exceeding 7 years. Justice Chibesakunda has only served 4 years after her retirement.
However, if one insists on holding on to the law, they can gamble with the interpretation of Article 97(2) which reads
“Where the President or the Judicial Service Commission, as the case may be, is satisfied that, by reason of special circumstances, a person who holds one of the specified qualifications is worthy, capable and suitable to be appointed as a judge of the Supreme Court or a puisne judge, notwithstanding that he has not held one or other of those qualifications for a total period of not less than seven years, the President acting in the case of a puisne judge in accordance with the advice of the Judicial Service Commission, may dispense with the requirement that such person shall have held one or other of the specified qualifications for a total period of not less than seven years.“
In this article you would have to argue the phase “by reason of special circumstances”, was Justice Chibesakunda appointed under special circumstances?
It is however, a fact that Justice Chibesakunda was rejected by parliament hence her chances of being a Chief Justice are bleak albeit she being kept in Acting position. It is also an abuse of the law by the President to keep her in an acting position for such a long time just because the law allows her to be there up to 7 years. The situation also erodes public confidence in the Judiciary because she is being perceived as an hired gun for the Govt. It is like the President is doing her a favour in keeping her in the job and naturally many think she has an obligation to give something back to the appointing authority.
In her position, our Acting Chief Justice lacks authority and confidence, knowing that, she is on contract and anytime the President can pull the string and she is dead professionally. She can also not exert pressure on her subordinates to achieve any substantive change in the Judiciary because many of her colleagues see her as a fluke. It is therefore reasonable and morally right that she resigns on her own or the President relieve her of her duties before her achievements which she is admired for are thrown together with the dirty water of her last appointment.