Transitional provisions are enacted to address what should happen in the interim and how the changes are to be effected in an orderly so as to avoid undermining the intended purposes of an amendment.
October 2, 2023
John Sangwa v the Attorney General and the Law Association of Zambia
Munalula MM, DP, Sitali AM, Mulonda P, Mulenga MS, Musaluke M, Chisunka MK, and Mulongoti JZ, JJ
August 7, 2023
Reported by Faith Wanjiku and Brian Okumu
Constitutional law –arms of government- doctrine of separation of powers- judiciary vis-à-vis the executive – functional and financial independence of the judiciary –judicial officers- conditions of service of judicial officers-whether sections 3 and 12 of the JSCA to the extent that they conferred authority on the President to prescribe emoluments and other conditions of service for judges were ultra vires articles 122(3) and 123 (1) of the Constitution and therefore, null and void – whether statutory instrument No. 80 of 2018, which contained the salaries of judges as prescribed by the president contravened articles 122(3) and 123(1) of the Constitution, and was therefore null and void – whether the failure or omission by the minister responsible for finance and the legislature to enact legislation and put measures in place to promote the judiciary’s financial autonomy was a breach of articles 122(3) and articles 123(1) of the Constitution – Judges (Conditions of Service) Act, Cap 277, sections 3, 10, 11 and 12.
The petitioner brought proceedings against the respondent alleging that the respondent had contravened articles 122 and 123 of the Constitution of Zambia (the Constitution) on functional independence and financial independence respectively. The petitioner stated that the contravention of the above-mentioned articles of the Constitution arose from the provisions of sections 3, 10, 11 and 12 of the Judges (Conditions of Service) Act, Cap 277 (the JCSA) which conferred powers on the President and the Executive to regulate the salaries and conditions of service for judges contrary to the demands of the Constitution on financial independence. The petitioner contended that the petition had to be considered within the broader context of the doctrine of separation of powers as enshrined in the constitutional framework in order to ensure that the effect was given to the underlying purpose of the financial autonomy of the judiciary provided for in articles 122(3) and 1323 of the Constitution.
i. Whether sections 3 and 12 of the JSCA to the extent that they conferred authority on the President to prescribe emoluments and other conditions of service for judges were ultra vires articles 122(3) and 123 (1) of the Constitution and therefore, null and void.
ii. Whether statutory instrument No. 80 of 2018, which contained the salaries of judges as prescribed by the president contravened articles 122(3) and 123(1) of the Constitution, and therefore null and void.
iii. Whether the failure or omission by the Minister responsible for finance and the Legislature to enact legislation and put measures in place to promote the judiciary’s financial autonomy was a breach of articles 122(3) and articles 123(1) of the Constitution.
Relevant provisions of the law
Judges (Conditions of Service) Act, Cap 277
Section 3 – Emoluments
There shall be paid to a judge such emoluments as the president may, by statutory instrument, prescribe.
Section 10 – Contributions
A judge shall contribute towards the cost of the pension scheme described in this Act at the rate of seven and one quarter per centum of his pensionable emoluments or at such other rates as the Minister may fix by statutory order in consultation with the institution designated by section 9.
Section 11 – Payment from General Revenues
There shall be paid in the institution designated by section nine from the general revenues of the Republic such amount calculated with regard to the pensions and other benefits payable under the pension scheme described in this act as may be fixed by the Minister in consultation with that institution following the advice of an actuary appointed by the Institution.
Section 12 – Regulations 1) The president may, by statutory instrument, make regulations for the better carrying out of the provisions of this Act.
2) Without prejudice to the generality of sub section 1, the president may, by statutory instrument, make regulations prescribing the prerequisites of office and other conditions of service of a judge, including but not limited to the following –
a) Car loans.
b) Housing allowance.
c) Non-private practice allowance.
d) Funeral assistance.
e) Travelling on duty. Constitution of Zambia (Amendment) Act No 2 of 2016
Article 122 – Functional Independence of the Judiciary
3) The Judiciary shall not, in the performance of its administrative functions and management of its financial affairs, be subject to the control of a person or an authority.
Article 123 – Financial Independence of the Judiciary
1) The Judiciary shall be a self-accounting institution and shall deal directly with the Ministry responsible for finance in matters relating to its finances.
- The issue of financial independence of the Judiciary had not been adequately addressed by way of Legislature enacting appropriate legislation and the Minister responsible for finance putting up policy measures in line with articles 122(3) and 123 of the Constitution. That was viewed as a contravention of the Constitution and mandated Parliament to address it as a matter of urgency. The court in particular cited the Judiciary Administration Act which it opined was a step in the right direction and had addressed the issue of administrative independence to a large extent, but not for financial independence. It proceeded to mention that in determining financial independence, the two issues that were to be considered were the budgetary process and the accessing of funds because the law and the modalities of budgeting and accessing of funds had a significant impact on the Judiciary’s financial independence. However, none of these issues were adequately addressed in the above-mentioned legislation as well as the National Planning and Budget Act No. 1 of 2020 and the Public Finance and Management Act No.1 of 2018.
- Sections 3 and 12 of the JCSA were necessary and continued to apply during the transitional period prior to the enactment of the Emoluments Commission Act based on Act No.1 of 2016 (the repealed Constitution). Moreover, after the enactment of the Emoluments Commission Act which provided that its provisions would prevail where there was a conflict with any other law, the Emoluments Commission Act had since taken care of the alleged conflict of sections 3 and 12 of the JCSA with the Constitution. Therefore, the question of the two sections being unconstitutional or contravening the Constitution did not arise.
- The court, as regards sections 10 and 11 of the JCSA found that in so far as they mandated the Minister to fix the amounts of judges contributions towards the pension scheme, the same was inconsistent with articles 122(3) and 123(1) of the Constitution on the independence of the Judiciary and were therefore void to the extent of their inconsistency. That was notwithstanding that those provisions were practically redundant because there had been no pension scheme for judges since amendments were made to the JCSA in 2006.
- The prescribing of emoluments for judges was still reposed in an institution outside the Judiciary. The statutory instrument was covered by the transitional provisions of the repealed Constitution prior to the enactment of the Emoluments Commission Act as required by the Constitution.
Relevance to Kenyan jurisprudence
An independent judiciary is vital for a country’s democracy because it acts as a custodian of justice in ensuring that the other arms of government such as the Executive and the Legislature abide by the rule of law and do not exceed the mandate bestowed upon them by the Constitution or by other national legislations. Essentially, the judiciary maintains a supervisory role over other arms of government in order to ensure that authority is not illegally, unfairly or unprocedurally abused.
Article 160 of the Constitution of Kenya, 2010 (the Constitution) unambiguously cements the Judiciary’s independent role thus:
(1) In the exercise of judicial authority, the Judiciary, as constituted by Article 161, shall be subject only to this Constitution and the law and shall not be subject to the control or direction of any person or authority.
(2) The office of a judge of a superior court shall not be abolished while there is a substantive holder of the office.
(3) The remuneration and benefits payable to or in respect of judges shall be a charge on the Consolidated Fund.
(4) Subject to Article 168(6), the remuneration and benefits payable to, or in respect of, a judge shall not be varied to the disadvantage of that judge, and the retirement benefits of a retired judge shall not be varied to the disadvantage of the retired judge during the lifetime of that retired judge.
(5) A member of the Judiciary is not liable in an action or suit in respect of anything done or omitted to be done in good faith in the lawful performance of a judicial function.
In Law Society of Kenya v the Attorney General and 4 others Petition No. 45 of 2019 eKLR, the constitutionality of Executive Order No.1 of 2020 was brought into question because it concerned the President’s intentions in organizing the government of the Republic of Kenya. In particular, the President opted to restructure the judiciary under ministries and other government departments however; that action was opposed as the contention that arose was that the restructuring of the judiciary would be a threat to the judiciary’s independence contrary to articles 160, 161, 169, 171 and 173 of the Constitution. The court determined that the president was not vested with the power to transfer functions of constitutionally established institutions as that would be an affront to article 255(1) (g) of the Constitution which prescribed that any proposed amendment to the Constitution in relation to the independence of the judiciary had to be done through a referendum. The court also emphasized that independence did not equate to ‘detachment’, ‘isolation’ or ‘disengagement’.
In Law Society of Kenya v Office of the Attorney General and another: Judicial Service Commission (Interested Party) Constitutional Petition 203 of 2020 eKLR, the main issues for determination were whether the nomination of the 3rd respondent by the president was ultra vires article 171(2) (c) of the Constitution and whether elected or nominated commissioners of the Judicial Service Commission (JSC) ought to have been approved by the National Assembly before appointment. The court found that under article 171(2), the scope of the president’s power to appoint members of the JSC was limited to two persons, a man and a woman, who were not lawyers, to represent the public and to the extent that section 15(2) of the Judicial Service Act (which section was also in contention in the case due to its constitutionality) donated to the president the power to appoint elected and nominated members of the JSC, it was void for being inconsistent with article 171 of the Constitution which did not recognize such power.
Importantly, the court distinguished article 171 from article 250 of the Constitution by noting that it was a self-executing provision which meant that the judiciary could enforce the provision without the aid of a legislative enactment. The court mentioned that that would be possible where the provision had been drafted in precise and unambiguous language where it could only be given its natural and ordinary meaning. That was in contrast to article 250 of the Constitution where the court observed that it was a provision of general application in terms of the composition, appointment and terms of office of any constitutionally established commission.
In conclusion, the instant case is relevant in that it tackles a fundamental aspect of a democratic system where the judiciary’s independence is protected in order to able to manage its internal affairs as well as its administrative functions without the undue interference of other arms of government. Without this, democracies would devolve into anarchy.