LUSAKA lawyer Dr
Rodger Chongwe yesterday said Simeza Sangwa and Associates' demand that Chief
Justice Ernest Sakala and justice Peter Chitengi must vacate office because they
have already passed their retirement age is a very important issue and not
In an interview, Dr Chongwe said the issue raised by Simeza
Sangwa and Associates needed to be given some attention.
"On the face of
it Mr Sangwa has raised a very important issue. It's not a frivolous letter,
it's a letter that deals with our Constitution. The constitutionality of the
functioning of the courts and the appointment of judges in those court," Dr
Chongwe said. "These are important concerns and we should not dismiss them, they
are not frivolous. They are important so we should deal with them. They are good
for this nation to be dealt with so that next time we don't fall in the same
On Wednesday, Attorney General Mumba Malila said he was
studying Simeza Sangwa and Associates' demand that Chief Justice Ernest Sakala
and justice Peter Chitengi must vacate office because they had already passed
their retirement age.
Malila said he was studying the letter with a view
to respond to the various issues raised.
Malila said: "I still haven't
received it but I have been provided with a copy. I am studying it now with a
view to respond to the various issues which he has raised."
deputy minister Todd Chilembo said Malila could not come up with any binding
verdict on Simeza Sangwa and Associates' demand that Justice Sakala and justice
Chitengi vacate office.
However, Chilembo said it was logical that Malila
responds to the letter from Simeza, Sangwa and Associates.
In a letter to
Malila dated July 13, 2009 which was also copied to President Rupiah Banda, the
Chief Justice, the deputy chief justice, justice Chitengi and the Speaker of the
National Assembly among others, Simeza, Sangwa and Associates stated that
Justice Sakala and justice Chitengi had already passed the retirement age of
The law firm stated that the duo was not qualified to hold office and
that they were holding their offices illegally.
"On 29th April, 2009, we
lodged the above-stated appeal and because of its urgent nature it was heard in
Ndola on 2nd June, 2009, by a bench consisting of the Chief Justice, Mr Justice
Peter Chitengi and Madam Justice Chibomba. We understand that madam Justice
Chibomba is acting judge of the Supreme Court in line with the provisions of
Article 93(5) of the Constitution. On 9th July, 2009, what was described as the
"judgment" of the court was read by the Chief Justice and our clients' appeal
was rejected," read the firm's letter in part. "It has now come to our clients'
attention that at the time of hearing the appeal on 2nd June 2009, both the
Chief Justice and Mr Justice Chitengi had already passed the retirement age of
sixty-five stipulated in Article 98(1) of the Constitution, hence not qualified
to hold the office of judge of the Supreme Court, consequently not competent to
hear and determine this appeal or any other appeal case.
omitting the parts not relevant to the issues at hand, reads: Subject to the
provisions of this Article, a person holding the office of a judge of the
Supreme Court- shall vacate that office on attaining the age of sixty-five
years: We are aware of the proviso to Article 98(1), which omitting the parts
not relevant, reads: provided that the President- (a) may permit- a judge of the
Supreme Court, who has attained that age to continue in office for such period
as may be necessary to enable him to deliver judgment or to do any other thing
in relation to proceedings that were commenced before him before he attained
that age; (b) may appoint- a judge of the Supreme Court, who has attained the
age of sixty-five years, for such further period, not exceeding seven years, as
the President may determine."
Simeza, Sangwa and Associates stated that:
"If your interpretation of the constitutional and statutory provisions we have
referred to is different from ours, we have instructions from our clients to
move the High Court so that the issues we have raised can be adjudicated upon.
However, if you share our interpretation of the said provisions, we would like
to know what you propose to do to correct the constitutional and statutory
violations we have outlined above. We would be grateful to hear from you within
seven days from date hereof. If we do not, we have instructions to move the High