WE’RE ENOUGH - JUDGES

THE Constitutional Court says having a number of judges below the prescribed maximum does not amount to contravention of the Constitution by the Judicial Service Commission ( JSC) and the President.

The Court in its judgement held that in as much as it was desirable to have the maximum number of judges for each court, where numbers are below the maximum, it did not translate into an illegality.

It however admitted that the current composition of judges in all the four superior Courts- Supreme Court, Constitutional Court, Court of Appeal and High Court are below the maximum numbers stipulated by the Constitution and the Superior Courts Act.

The Court said that the prescription of the maximum numbers was to ensure functionality of courts and speedy dispensation of Justice.

The court was not in agreement with the State’s argument that financial and infrastructure implications had a bearing on the appointment of judges.

“The constitutional edicts were put in place after thorough consultations and thus the financial implications cannot be a valid excuse. Courts play a critical role in the governance of the country and in ensuring access to justice. Hence, what is required is for the State to ensure that resources are made available for the required infrastructure and funding for courts,” read the judgement.

In terms of the timeframe for making appointments, the Court said that the Constitution was silent as to when the maximum number of judges are to be filed.

This is according to majority judgement comprising Judges Professor Margaret Munalula, Mugeni Mulenga, Martin Musaluke, Matthew Chisunka and Judy Mulongoti.

In this matter, the Institute of Law, Policy Research and Human Rights Limited petitioned the Constitutional Court to compel the JSC to immediately process the appointment of Judges in the superior courts.

In its petition, the Institute is seeking an order that the inability or failure by the JSC to identify and recommend those who are qualified to be appointed as Judges of the Supreme, Concourt, Court of Appeal and High Court is unconstitutional , thus unlawful.

The petition is seeking an order of mandamus compelling the JSC to immediately identify and recommend those who are qualified to the said superior courts to fill all vacancies in order to comply with the Republican constitution (amendment) Act no.2 of 2016 and the superior courts (number of Judges) Act no.9 of 2016.

Attorney General Kabesha Mulilo has been cited as the respondent in the matter. The institute stated that whereas the stipulated maximum number of Supreme Court and Concourt is 13 each, the constitution does not state the minimum number of Judges for the Court of Appeal and the High Court.

It stated that the current composition of Judges is Supreme Court -10, Concourt -8, Court of Appeal -13 and the High Court – 52.

the petitioner stated that the according to the superior courts Act, it is mandatory for the High Court to have a maximum number of 60 Judges beside the chief Justice as an ex officio judge.

The court declined to grant the reliefs sought by the institute and dismissed the petition.