By Isaac Mwanza
THE Chief Justice, His Lordship Dr. Mumba Malila, SC, and his fellow former jurists have made recommendations suggesting the disbandment of the Court of Appeal and the merger of the Constitutional Court with the Supreme Court.
While I have reservations about these recommendations, I reluctantly acknowledge the merit in the proposal to consolidate the Constitutional Court into the Supreme Court.
Nonetheless, it is prudent to engage in a thoughtful examination of the motivations behind the notion of dismantling the Court of Appeal and merging the Constitutional Court with the Supreme Court.
It is noteworthy that Mr. Malila’s statements coincide with a recent judgment delivered by the Constitutional Court concerning judicial appointments.
But the question should be, is this proposition by the Chief Justice driven by concerns that cases which must be appealed to the Supreme Court from the Court of Appeal are not reaching their intended destination, the Supreme Court, rendering the Supreme Court unproductive?
Alternatively, are there reservations regarding the competence of judges at the Constitutional Court compared to their counterparts at the Supreme Court?
Another perspective to consider is whether this is an administrative measure aimed at redistributing the caseload, given the position of the Chief Justice within the Supreme Court.
Regarding cases transitioning from the Court of Appeal to the Supreme Court, there are pivotal factors that deter litigants from pursuing appeals at the Supreme Court.
The process involved in appealing decisions from the Court of Appeal is intricate.
It entails the submission of an application for leave to appeal to the same Court of Appeal, which then assembles a full bench to deliberate on the merits of the application for leave to appeal.
This procedural intricacy often leads to delays, with numerous pending applications awaiting resolution.
The pursuit of justice in Zambia carries a substantial financial burden, particularly for individuals endeavouring to assert their legal rights.
As an example, workers who faced unfavourable decisions in the Industrial Relations Court, could historically appeal directly to the Supreme Court.
Nonetheless, the extended time it takes to reach a resolution at the Supreme Court level, coupled with the substantial workload and the complex legal documentation required for appeals particularly when the appeal process is initiated by unrepresented litigants, compound the problem.
This, in turn, leads to disinclination among individuals not to pursue their cases to the Supreme Court, primarily because of these protracted delays.
Furthermore, there are instructive insights to be gleaned by our chief justice and former chief justices from the procedures followed by the Supreme Court of the United States of America (SCOTUS).
In most instances, SCOTUS does not automatically entertain appeals; instead, parties are required to submit a formal request to the Court known as a “petition for a writ of certiorari.”
It is the established practice of the Court to grant this writ, commonly referred to as “granting cert,” when at least four out of the nine Justices concur that the case warrants their consideration.
Out of the approximately 7,500 certiorari requests made annually, the Court typically grants cert to fewer than 100 to 150 cases. These are typically matters that the Court deems of significant importance, meriting its review.
Consequently, the decisions issued by the 12 Circuit Courts of Appeals throughout the nation, along with the Federal Circuit Court, stand as the final rulings in a multitude of cases.
Addressing the predicament arising on our Supreme Court because of the creation of the Court of Appeal does not necessitate dissolution of the Court of Appeal but a prioritized endeavour to simplify the appellate process, particularly when seeking leave to appeal to the Supreme Court.
The requirement for such applications to await review by a full bench of the Appeals Court should be revisited.
Furthermore, measures should be implemented to enhance the affordability of legal proceedings.
Concerning the proposed merger of the Constitutional Court with the Supreme Court, I am aware that members of parliament have been discussing quicker ways of amending the Constitution.
These talks may also revolve around the possibility of dissolving the Constitutional Court and integrating it into the Supreme Court structure, thereby creating two divisions: one for criminal matters and the other dedicated to constitutional issues.
Such a transformation would entail a piecemeal constitutional amendment process initiated by the executive and directly presented to parliament for approval.
This piecemeal route was vehemently opposed by the now ruling party in the last 4 years.
It is imperative, however, to differentiate between the motivations behind public support for this merge of the courts and what may be his Lordship underlying rationale.
The inclination by the public towards the merger of the Supreme Court and Constitutional Court primarily stems from the belief that decisions from the Constitutional Court lack the depth of constitutional analysis exhibited by the Supreme Court in its judgments, especially given its responsibility for establishing binding precedents in constitutional matters.
Furthermore, there is a prevailing perception that the Constitutional Court has failed in holding the executive branch accountable.
This perception, rooted from what happened under the previous administration and still persists to new administration, is the suspicions that the court may continue to favour the executive, as the appointing and dis-appointing authority of judges.
Yet, a crucial question surfaces: Will this merger significantly alter the manner in which a new division at the Supreme Court level will approach constitutional cases that directly affect the executive branch, delivering judgments enriched with profound constitutional analysis?
It is conceivable that such a transformation may not yield substantive changes, apart from potentially greater detail in written judgments and rulings.
The judges presiding over both courts are still appointed through an opaque process shrouded in mystery involving the executive, which raises concerns about their impartiality.
And judges are also removed by a simple process spearheaded by some commission appointed by the executive and without the full participation of parliament that ratified the judges.
The real imperative lies in reforming the judicial appointment process to ensure that judges are not beholden to their appointing authorities and can dispense equitable and well-reasoned judgments.
In their most recent judgment in the case involving the appointment of 20 judges, it is my considered opinion that the Constitutional Court missed an opportunity to fully assert itself by refraining from articulating clear guidelines on how the principles of “merit and equal opportunity” and a “competitive process” should influence appointments of judges.
The law is written in black and white that the values and principles in Article 173(1) of the Constitution apply to appointments in the Judiciary as a State organ.
But the Court felt comfortable to transfer this responsibility, by merely recommending to Parliament with no timelines as was the case in the earlier Judgment involving financial independence, when Parliament had already delineated these guiding principles in both the constitution and the law.
Ultimately, the dissolution of the Constitutional Court may not be imperative if the court vigorously upholds constitutional values and principles for which the Court is enjoined by the Constitution to protect, and the bill of rights, which underpin all constitutional interpretation.
This adjudicative approach is what has propelled Kenyan courts to prominence in safeguarding their constitution.
However, until the appointment system undergoes reform, the public’s scepticism regarding appointed judges’ willingness to impartially adjudicate against the entities that appointed them and also possess the final authority to remove them when any misconduct is observed on the part of a judge, will persist.
Legal proceedings, even in constitutional matters, can impose a substantial financial burden on litigants. Individuals frequently expend personal resources on legal representation, rendering access to justice a costly endeavour.
While this may contribute to democracy, we get to suffer a drain in resources and also carries risks, as some perceive those who litigate against the government as adversaries, potentially affecting their personal and professional opportunities as I have come to experience over time.
Because of how petty politicians can be, persons who litigate against government are usually denied opportunities to do business with government nor work in or with government.
Moreover, there exists a potential risk of orders for costs being issued, even in constitutional matters, when cases are lost against the executive.
Pursuing legal action against the government requires significant fortitude, particularly when appearing before judges appointed by the very entities who are called upon to adjudicate against alleged unconstitutional behaviour by the executive.
These judges possess wider discretionary powers to impose legal costs, and individuals may find themselves discouraged from pursuing legal redress due to this daunting possibility.
This was evident in the case of Sinkamba and myself when we were warned of the potential for incurring costs in future while pursuing court intervention to rectify the contentious Kwacha and Kabushi parliamentary by-election, which notably involved the judiciary itself.
In conclusion, the recommendations by Chief Justice Mumba Malila should ignite a broader conversation about the state of the judiciary, judicial appointments, and access to justice in Zambia.
The matters brought forth by the Chief Justice necessitate meticulous examination, broader discourse, and well-grounded adjustments to safeguard the credibility, effectiveness, and availability of the legal system for ordinary citizens.
These suggested modifications should not be driven solely by the desire to provide our Supreme Court judges with opportunities to also participate in issuing judgments, especially when actions reaching the Supreme Court may not be necessary as can be seen from the practice in the U.S.