High Court Judge Mike Tembo has dismissed an application by fellow judge Michael Mtambo that President Lazarus Chakwera’s decision not to promote him to the Supreme Court should undergo a judicial review test.
But Mtambo has submitted a new application for judicial review to allow the government, through the Attorney General, to defend the President’s decision made on the recommendation of the Judicial Service Commission (JSC).
In dismissing the initial application, Tembo states that Mtambo’s application was based on unsubstantiated claims of existing practices and facts.
“This court is compelled to decline the claimant’s application for permission to apply for judicial review for being unfit for further consideration at a full hearing for judicial review,” the judge said.
The matter is in light of the appointment of four Supreme Court of Appeal judges last month.
Mtambo argues that although he was the most senior judge at the time of the appointments, he was left out because the appointing authorities wanted to balance the appointees in terms of age, gender and regions of origin which he said was unconstitutional and a departure from the normal practice.
Mtambo further argues that although he was the most qualified to be appointed Justice of Appeal that time, being the most senior High Court judge, he was omitted because he was nearing his retirement age which he said was not of his making.
However, Tembo in his order dated July 16, states that Mtambo did not provide evidence in support of the claimed practice that the appointment of the Justices is done based on the seniority of the High Court judges.
“Given that constitutionally speaking, appointment to the Supreme Court may be from the High Court or from law practice, there is no basis for entrenching seniority as the alleged accepted sole rationale for the said appointments,” he said.
Tembo also rejected Mtambo’s assertion that the appointments were made as he was nearing his retirement date because the President and JSU took unnecessarily long to make the appointments.
“This controversial assertion appears to be self-serving. The defendants, being what they are, handle a lot of public service business. In effect, they took six months to effect the last appointments to the Supreme Court of Appeal.
“The process as undertaken does not disclose incompetence on the part of the defendants to this court. Perhaps, it is understandable that the claimant wanted the process to be far hastier so that he could beat his own retirement date and have more time remaining on his watch so that he was in serious contention for appointment to the Supreme Court of Appeal,” Tembo said in his order.
In an interview yesterday, Mtambo stressed that the issue is about legitimate expectations and not legal rights.
In the new application, he argues that there has been a practice that once names have been submitted by the JSC to the President for promotion, the President approves such names and does not send them back asking for other names.
The judge further posits that this practice bodes well for the independence of the Judiciary as it removes room at the Executive level for political influence to affect the appointment and promotion of judges in an independent arm of government.
“I was informed by a senior government official and verily believe that the 2nd respondent was unhappy to be given four names when there were four vacancies and demanded more names…
“To buttress my belief that the names submitted by the 1st defendant to the 2nd defendant are promoted as a matter of fait accompli, after removing the name of the applicant from the list and sending a new list of four judges to the 2nd Defendant to be promoted to the Supreme Court of Appeal, everybody on the list was promoted. I can thus only conclude that I was unfairly targeted for political or other irrelevant reasons to be left out on promotion,” he argues.
He further argues that it is unlawful for the President and the JSC to deny him promotion which he legitimately expected from established and accepted practice.
The judges who were promoted last month are Sylvester Kalembera, who was also judge president in the High Court, Dingiswayo Madise, Rowland Mbvundula and Dorothy NyaKaunda Kamanga.