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In a letter dated August 26, 2013, addressed to Law Association of Zambia (LAZ) president James Banda, Mr Bwalya said the Republican President was on firm constitutional grounds and advised the association against litigation over this matter.
He buttressed his argument on Article 93(6) which states that “a person may act as Chief Justice or Supreme Court Judge, notwithstanding that he/she has attained the (retirement) age prescribed by Article 98.”
The Judges’ current retirement age is 65. Mr Bwalya said this article waives the retirement age and means that one could remain a judge even after attaining 65 years.
Mr Bwalya also dismissed assertions by some lawyers that the Chief Justice could not act for more than six months, pointing out that Judges were excluded from the definition of public service workers who may not act for more than six months.
He quoted Article 139(2) of the Constitution which says: “In this Constitution, references to offices in the public service SHALL NOT be construed as including references to the office of the Supreme Court and of the High Court, and to the offices of Chairman, Deputy Chairman and Members of the Industrial Relations Court.”
Article 93(3) of the Constitution states that where there was a vacancy in the office of the Chief Justice, “the President may appoint the Deputy Chief Justice or a Supreme Court Judge to perform such functions.”
Mr Bwalya further observed that the appointment was in conformity with the Constitutional provision and questioned why LAZ was opposing the Presidential appointment which was firmly anchored on the law.
Arguing against litigation, Mr Bwalya observed that LAZ had no case but some of its members wanted to proceed with litigation for the sake of driving their point.
He said the President could not be sued under Article 44 (4) of the Constitution because he was protected by Article 43, and the Attorney General also could not be sued because he was not the appointing authority.
He further observed that it would be inappropriate to sue the acting Chief Justice as the action could be construed to be too personal as she was just an appointee.
“At this point, what will the Zambian public be thinking of LAZ? Mr president, and members of the council, this is not our fight. This is so out of character for our association. What do we really want? To set two arms of government against each other?” asked Mr Bwalya in his letter.
“With respect I think I speak for the silent or absent majority members of our beloved association when I say this is one fight we do not need.
“In my view, we respectfully advise the President on areas of concern, but to go to court for the sake of going to court is not only ill-conceived but a sure way of getting the Zambian public against ourselves,” he said.
