Chilufya Chota
Introduction
The independence of the Judiciary is a cornerstone of democratic governance that ensures that judges can interpret the law impatially without fear of retribution. A crucial aspect of maintaining this independence is the process of Judicial appointment. this Article will examine the importance of the indepndence of the Judiciary and the obstacle posed by Judicial appointments , as well as potential solutions to maintain the delicate balance between the two.
Overview
Judicial appointments are the process of selecting and placing judges into the judicial system. This process is important because it affects the independence of the judiciary and how laws are interpreted. The current system of Judicial appointment in Zambia is governed by Article 140 of the Constitution of Zambia (ammendment) act no 2 of 2016 (herein referred to as the Constitution) which states that the President shall on recommendation from the Judicial Service Commission(JSC) and subject to ratification by the National Assembly, appoint the judicial officers. On the other hand, Judicial Independence is a fundamental principle of the judiciary that ensures judges are free from external influences, pressures, and biases when making decisions, this is ensured by upholding the rule of law,seperation of powers and maintaing public trust in the Judiciary.
The phrase “on the recommendation” has been narrowly interpreted by the Supreme court giving the President significant discretion in appointing judges.. This means that the President can essentially appoint anyone they choose, regardless of the JSC’s recommendations . Judges who are dependent in some way on the person who appoints them may not be relied upon to deliver neutral, high-quality decisions, and so undermine the legitimacy of Judicial body. The JSC is established in Article 220 of the Constitution and outlines its functions which include, makng recommendations to the President on the appointment of judges and appoint, confirm, promote and hear appeals from judicial officers. The JSC is composed of members appointed by the President , including the Chief Justice, a judge nominated by the Cheif Justice, Attorney General and other officials, this raises concerns abut the independence and Impartiality of the JSC in the appointmrent process.
Zambia has been criticized for lacking transprency and accountability in its appointment process which can underminne the integrity, effectiveness amd independence of the Judiciary. The current system allows for signoificant executive influence over the appointment of judges and threir tenure. When the Executive brancjh has significant control of appointment process, it can lead to appointment of Judges who are subject to executive powers rather than being independent. Although the qualifications for appointment as a judge have been outlined in Article 141 of the Constitution the recommendations from the JSC and the appointments are still seen as secretive or lacking in transpatency as vacancies are not advertised as such may lead to difficulty in determing whether judges are being appointed based on the merit and qualifications or political considerations.
Futhermore, The Legislative branch, which in this case is tasked with ratification of the appointment of Judges by the President to ensure fairness, may not provide adequate oversight over the Executives appointment and tenure decisions, allowing for potential abuses of power and limited diversity as appointment processes that prioritize certain characteristics , such as Political affiliation or societal connections , can result in a Judiciary that lacks representation.
However, although the current system of Judicial appointment may be seen as a threat to Judicial Independence, there is still a number of ways that this may be altered to maintain the delicate balance between the appointment process and the Independence of the Judiciary. the recogition of the Security of Tenure that Judges enjoy ,Article 122(5) of the Constitution stipulates that the office of the judge shall not be abolished while there is a substantive holder of the office , this ensures Judges do not fall prey to fear of termination of their office because of external pressure. Article 122 (3) also prohibits interference with the performance of a judicial function by a judge by a person holding a public office. Ensuring that judges have security of tenure and freedom to make fair and unbiased decisions can help promote judicial independence and curb arbitrary removal and displinary action of judges. Making the appointment process more transparent , including advertising vacancies and publishing the creteria for selection , can help ensure that the best candidates are selected and the condifence of the prople in the Judiciary is maintained. Lastly, providing adequate financial aid to the Judiciaty will ensure that judges are able to perform their duties independently and effectively.
Conclusion
The independence of the Judiciary is not a mere ornament , but the very backbone of democracy, as Lord Denning once said, “The independence of the judges is the cornerstone of our liberties, Without it, we would be at the mercy of the executive and the legislature”. As we strive to strengthen our democratic institutions , let us remember that the Independence of the Judiciary is not a luxury, but a necessity.
