By Duncan Mlanjira
Once a judge has been appointed by the State President, the executive arm of the government is not involved in the internal affairs of the Judiciary and all matters relating to welfare and discipline fall within the exclusive province of the Judiciary itself and the Judicial Service Commission as per sections 116 and 118 of the Constitution.
Chief Secretary Lloyd Muhara
This has been said by the Judiciary in a statement in reaction to Friday’s notice issued by the Chief Secretary to the Government, Lloyd Muhara in announcing that the Chief Justice Andrew Nyirenda and Justice Edward Twea should go on leave with immediate effect pending his retirement.
In the statement, Registrar of the High Court and the Supreme Court of Appeal, Agnes Patemba says the accumulated leave days for the Chief Justice and Justice Twea are less than what is mentioned in the letters by Muhara if calculated in accordance with the Conditions of Service for judicial officers.
Justice Nyirenda retires in December, 2021
“Over the years, the Chief Justice and Justices of Appeal have accumulated leave days because they have been prevented from proceeding on leave for all their entitled leave days due to exigencies of their office,” she said.
According to the Patemba, the retirement dates for the current Supreme Court of Appeal bench is up to December 2021 as follows:
*Justice Kamanga — September 2020
*Justice Jane Ansah — October 2020
*Justice Twea — April 2021
*Justice Dunstain Mwaungulu — June 2021
*Justice Chipeta — July 2021
*Justice Andrew Nyirenda — December 2021
Justice Twea (left) with Justice Ansah (middle)
In the case of Justice of Appeal, Jane Ansah, Patemba said she opted to apply for leave pending retirement and was granted leave on January 27, 2020.
“The Judiciary asserts that the Chief Justice and Justices of Appeal shall continue to discharge their functions as per their constitutional mandate,” says Patemba.
She added that the Constitution provides in section 119 (6) that a judge shall vacate the office upon attaining the age of 65 years.
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“A judge may be removed from office only for incompetence in the performance of the duties of his or her office or for misbehavior, and shall not be so removed except in accordance with subsections (3) and (4) by a petition which has been debated and passed by a majority of the votes of all members of the National Assembly.”
As for the case of leave, it is spelt out in the 2019 conditions of service for judicial officers under clause 12 which provides that they shall be entitled to annual leave as prescribed in the Second Schedule, that a judicial officer shall not commute leave days for cash.
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And a judicial officer may opt to carry forward accumulated leave days towards retirement, provides that such leave days shall not be commuted for cash.
The appointment of the Chief Justice, on the recommendation of the Judicial Service Commission, is made under section 111 of the Constitution which provides that he/she shall be appointed by the President and confirmed by the National Assembly by a majority of two thirds of the members present and voting.
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Regarding the succession plan for the Supreme Court of Appeal, Patemba says the Judiciary wrote the Ministry of Finance & Economic Planning on February 11, 2020 as well as Department of Human Resource and Management Development and the Minister of Justice & Constitutional Affairs requesting funds to appoint four Justices but the government responded that it had no funds to appoint them.
The Judiciary is an arm of the Government established under section 9 of the Constitution whose mandate is to interpret, protect and enforce the Constitution and all laws and in accordance with the Constitution in an independent and impartial manner with regard to only legally relevant facts and the prescription of the law.