Concourt petitioned over retired judicial officers

CHINTU MALAMBO writes A LIVINGSTONE Magistrate has petitioned the Constitutional Court to order that contracts given to already retired judicial officers must be terminated and all salaries or allowances drawn from the reviews of the country be paid back as they have been earning illegally. Magistrate Benjamin Mwelwa from the Livingstone Subordinate Court said the retaining and continued occupation of already retired judicial officers was not only demotivating but also unconstitutional, according to Article 1(3) of the constitution. In his petition filed in the Constitutional Court, Mr Mwelwa cited the Attorney General as the respondent in the matter. He said he will tell the court that the Constitution of Zambia Act 2 of 2016 provides for the retirement age of employees in the Judiciary, which included judicial officers like any other public officer in the public service aged 65 and 75. He said the Judicial Service Commission had continued to retain retired employees in the Judiciary on contract basis, when there are many highly qualified officers who are not retired to take up the various positions been given to those already retired. “The Judicial Service Commission has issued a directive in a memorandum dated April 24 2020 that the retirement age in the Judiciary is 55 years and that the Judiciary employees who were already in the service before 2014 and 2015 were and are not affected by the changes brought by the law,” Mr Mwelwa said. He said he will tell the court at trial that the actions of the Judicial Service Commission are against the doctrine of constitutionalism and the supremacy of the constitution. Mr Mwelwa said he will tell the court that the Attorney General being a chief legal advisor of the government and it’s agencies had a duty to advice the government, it’s agencies, service commissions and others that the corrects position on the retirement is 65 years for every employee who has not signed a contract of employment with the retirement condition entrenched in it in either civil service or private sector. It is his argument that Parliament had not made amendments to the existing laws to bring those laws in conformity with the Constitution (Amendment) Act No. 2 of 2016 since the constitution was amended in 2016. Mr Mwelwa now wants the court to declare that the directive by the Judicial Service Commission contained in the memorandum is unconstitutional as it is contrary to Article 143(3) of the Constitution. He also wants a declaration that a judge or judicial officer who held office immediately before the effect of the Constitution (Amendment) Act No.2 of 2016 continue to hold office as if appointed to that office under the constitution as amended, in accordance with Section 15(1) of the constitution Act No. 1 of 2016. Mr Mwelwa further wants the Constitutional Court to declare that failure by Parliament to make amendments to existing laws to bring them into conformity was unconstitutional. He also asked the court to order the State to pay costs for the petition. The Sun