The Constitution requires judges to be selected on merit based and competitive system which affords equal and adequate opportunities to qualified persons.
Lusaka, July 6 – The Attorney General has told the Constitutional Court that the merit based system and values in Article 173 of the Constitution of Zambia do not apply to the appointment of Judges.
Article 173 (1) states that “the guiding values and principles of the public service include the following:
(i) Merit as the basis of appointment and promotion;
(j) adequate and equal opportunities for appointments, training and advancement of members of both gender and members of all ethnic groups.
But Solicitor General, Marshal Muchende, told the court that Article 266 excludes the Judicial Service Commission from public service.
In response, the first Petitioner, Isaac Mwanza, told the court that the application of values and principles in Article 173 has been extended to the Judiciary and the Judicial Service Commission by the Constitution itself.
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He said Article 173(2) of the Constitution was clear that the values and principle are to apply to State organs and State institutions.
He said Article 266 defines State organs and institutions to include the Judiciary and the Commission, respectively.
And Makebi Zulu, lawyer for second petitioner told the court that the judges could not be sued directly as they are represented by the Attorney General based on the requirements of the State Proceedings Act.
Mr. Zulu maintained that the Deputy President of the Constitutional Court Arnold Shilimi and High Court Judge Greenwell Malumani did not meet the constitutional requirements at the time of their appointments as Judges.
He also stated that there is no provision in both the Constitution and the Court of Appeals Act for the Republican President to appoint the Judge President and Judge Deputy President of the Court of Appeals and maintained the appointment was administrative.
And another lawyer Jonas Zimba said the Constitution is the supreme law of the land and defending it required courage.
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He submitted that the Constitution requires judges to be selected on merit based and competitive system which affords equal and adequate opportunities to qualified persons.
Mr. Zimba has called on the court to nullify appointments of all judges for those who have been appointed from a flawed process in order to protect the values, principles and qualifications set in the Constitution.
In this case, the two petitioners, Isaac Mwanza and Maurice Makalu, have challenged the appointment of 19 Judges for failing to meet requirements of Articles 8 and 173 of the Constitution which are also prescribed in Section 4 of the Civil Service Act.
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