Zambia 1991 Constitution (reviewed 2016)

PART VIII. JUDICIARY

Judicial Authority System of Courts and Independence

Article 118. Principles of judicial authority

1. The judicial authority of the Republic derives from the people of Zambia and shall be exercised in a just manner and such exercise shall promote accountability.
2. In exercising judicial authority, the courts shall be guided by the following principles:
   1. justice shall be done to all, without discrimination;
   2. justice shall not be delayed;
   3. adequate compensation shall be awarded, where payable;
   4. alternative forms of dispute resolution, including traditional dispute resolution mechanisms, shall be promoted, subject to clause (3);
   5. justice shall be administered without undue regard to procedural technicalities; and
   6. the values and principles of this Constitution shall be protected and promoted.
3. Traditional dispute resolution mechanisms shall not—
   1. contravene the Bill of Rights;
   2. be inconsistent with other provisions of this Constitution or other written law; or
   3. be repugnant to justice and morality.

Article 119. Vesting of judicial authority and performance of judicial function

1. Judicial authority vests in the courts and shall be exercised by the courts in accordance with this Constitution and other laws.
2. The courts shall perform the following judicial functions:
   1. hear civil and criminal matters; and
   2. hear matters relating to, and in respect of, this Constitution.
3. Except as otherwise provided in this Constitution, other law or as ordered by a court, the proceedings of a court shall be in public.

Article 120. System of court

1. The Judiciary shall consist of the superior courts and the following courts:
   1. subordinate courts;
   2. small claims courts;
   3. local courts; and
   4. courts, as prescribed.
2. The courts shall be courts of record, except that local courts shall progressively become courts of record.
3. The following matters shall be prescribed:
   1. processes and procedures of the courts;
   2. jurisdiction, powers and sittings, of the Industrial Relations Court, Commercial Court, Family Court, Children’s Court and other specialised courts;
   3. classification and divisions of the subordinate courts;
   4. classification and divisions of the local courts;
   5. jurisdiction and composition of subordinate courts, small claims courts, local courts and other prescribed courts; and
   6. grading of judicial officers and staff of subordinate courts, local courts and other prescribed courts.
4. The courts, except the Supreme Court and the Constitutional Court, shall be devolved to the Province and progressively to districts.
5. Superior courts shall sit as circuit courts in districts, in accordance with a circuit schedule issued by the Chief Justice.

Article 121. Ranking of Supreme and Constitutional Courts

The Supreme Court and Constitutional Court rank equivalently.

Article 122. Functional independence of Judiciary

1. In the exercise of the judicial authority, the Judiciary shall be subject only to this Constitution and the law and not be subject to the control or direction of a person or an authority.
2. A person and a person holding a public office shall not interfere with the performance of a judicial function by a judge or judicial officer.
3. The Judiciary shall not, in the performance of its administrative functions and management of its financial affairs, be subject to the control or direction of a person or an authority.
4. A person and a person holding a public office shall protect the independence, dignity and effectiveness of the Judiciary.
5. The office of a judge or judicial officer shall not be abolished while there is a substantive holder of the office.

Article 123. Financial independence of 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.
2. The Judiciary shall be adequately funded in a financial year to enable it effectively carry out its functions.

Establishment Jurisdiction and sittings of Superior Courts

Article 124. Establishment and composition of Supreme Court

There is established the Supreme Court which consists of—

1. the Chief Justice;
2. the Deputy Chief Justice; and
3. eleven other judges or a higher number of judges, as prescribed.

Article 125. Jurisdiction of Supreme Court

1. Subject to Article 128, the Supreme Court is the final court of appeal.
2. The Supreme Court has—
   1. appellate jurisdiction to hear appeals from the Court of Appeal; and
   2. jurisdiction conferred on it by other laws.
3. The Supreme Court is bound by its decisions, except in the interest of justice and development of jurisprudence.

Article 126. Sittings of Supreme Court

1. The Supreme Court shall be constituted by an uneven number of not less than three judges, except when hearing an interlocutory matter.
2. The Supreme Court shall be constituted by one judge when hearing an interlocutory matter.
3. The full bench of the Supreme Court shall be constituted by an uneven number of not less than five judges.
4. The Supreme Court shall be presided over by—
   1. the Chief Justice;
   2. in the absence of the Chief Justice, the Deputy Chief Justice; and
   3. in the absence of the Deputy Chief Justice, the most senior judge of the Supreme Court, as constituted.

Article 127. Establishment and composition of Constitutional Court

There is established the Constitutional Court which consists of—

1. the President of the Constitutional Court;
2. the Deputy President of the Constitutional Court; and
3. eleven other judges or a higher number of judges, as prescribed.

Article 128. Jurisdiction of Constitutional Court

1. Subject to Article 28, the Constitutional Court has original and final jurisdiction to hear—
   1. a matter relating to the interpretation of this Constitution;
   2. a matter relating to a violation or contravention of this Constitution;
   3. a matter relating to the President, Vice-President or an election of a President;
   4. appeals relating to election of Members of Parliament and councillors; and
   5. whether or not a matter falls within the jurisdiction of the Constitutional Court.
2. Subject to Article 28 (2), where a question relating to this Constitution arises in a court, the person presiding in that court shall refer the question to the Constitutional Court.
3. Subject to Article 28, a person who alleges that—
   1. an Act of Parliament or statutory instrument;
   2. an action, measure or decision taken under law; or
   3. an act, omission, measure or decision by a person or an authority;

   contravenes this Constitution, may petition the Constitutional Court for redress.

4. A decision of the Constitutional Court is not appealable to the Supreme Court.

Article 129. Sittings of Constitutional Court

1. The Constitutional Court shall be constituted by an uneven number of not less than three judges, except when hearing an interlocutory matter.
2. The Constitutional Court shall be constituted by one judge when hearing an interlocutory matter.
3. The full bench of the Constitutional Court shall be constituted by an uneven number of not less than five judges.
4. The Constitutional Court shall be presided over by—
   1. the President of the Constitutional Court;
   2. in the absence of the President of the Constitutional Court, the Deputy-President of the Constitutional Court; and
   3. in the absence of the Deputy-President of the Constitutional Court, the most senior judge of the Constitutional Court, as constituted.

Article 130. Establishment and composition of Court of Appeal

There is established the Court of Appeal which consists of such number of judges as prescribed.

Article 131. Jurisdiction of Court of Appeal

1. The Court of Appeal has jurisdiction to hear appeals from—
   1. the High Court;
   2. other courts, except for matters under the exclusive jurisdiction of the Constitutional Court; and
   3. quasi-judicial bodies, except a local government elections tribunal.
2. An appeal from a decision of the Court of Appeal shall be made to the Supreme Court with leave of the Court of Appeal.

Article 132. Sittings of Court of Appeal

1. The Court of Appeal shall be constituted by an uneven number of not less than three judges, except when hearing an appeal in an interlocutory matter.
2. The Court of Appeal shall be constituted by one judge when hearing an interlocutory matter.

Article 133. Establishment and composition of High Court

1. There is established the High Court which consists of—
   1. the Chief Justice, as an ex-officio judge; and
   2. such number of judges as prescribed.
2. There are established, as divisions of the High Court, the Industrial Relations Court, Commercial Court, Family Court and Children’s Court.
3. The Chief Justice may constitute, by statutory instrument, specialised courts of the High Court to hear specific matters.
4. The composition of courts specified in clauses (2) and (3) shall be prescribed.

Article 134. Jurisdiction of High Court

The High Court has, subject to Article 128—

1. unlimited and original jurisdiction in civil and criminal matters;
2. appellate and supervisory jurisdiction, as prescribed; and
3. jurisdiction to review decisions, as prescribed.

Article 135. Sittings of High Court

The High Court shall be constituted by one judge or such other number of judges as the Chief Justice may determine.

Chief Justice and other Judges

Article 136. Chief Justice

1. There shall be a Chief Justice who is the head of the Judiciary.
2. The Chief Justice shall—
   1. be responsible for the administration of the Judiciary;
   2. ensure that a judge and judicial officer perform the judicial function with dignity, propriety and integrity;
   3. establish procedures to ensure that a judge and judicial officer independently exercise judicial authority in accordance with the law;
   4. ensure that a judge and judicial officer perform the judicial function without fear, favour or bias; and
   5. make rules and give directions necessary for the efficient and effective administration of the Judiciary.

Article 137. Deputy Chief Justice

1. There shall be a Deputy Chief Justice who shall—
   1. perform the functions of the Chief Justice, when the Chief Justice is absent or there is a vacancy in the office of Chief Justice;
   2. assist the Chief Justice in the administration of the Judiciary; and
   3. perform the functions assigned by the Chief Justice.
2. The President shall, in consultation with the Judicial Service Commission, designate a judge of the Supreme Court to perform the functions of the Deputy Chief Justice where—
   1. the office of the Deputy Chief Justice is vacant;
   2. the Deputy Chief Justice is acting as Chief Justice; or
   3. the Deputy Chief Justice is for a reason unable to perform the functions of that office.

Article 138. President of Constitutional Court

1. There shall be a President of the Constitutional Court who is the head of the Constitutional Court.
2. The President of the Constitutional Court shall be responsible for the administration of the Constitutional Court under the direction of the Chief Justice.

Article 139. Deputy of President of Constitutional Court

1. There shall be a Deputy President of the Constitutional Court who shall—
   1. perform the functions of the President of the Constitutional Court, when the President of the Constitutional Court is absent or there is a vacancy in the office of President of the Constitutional Court;
   2. assist the President of the Constitutional Court in the administration of the Constitutional Court; and
   3. perform the functions assigned by the President of the Constitutional Court.
2. The President shall, in consultation with the Judicial Service Commission, designate a judge of the Constitutional Court to perform the functions of the Deputy President of the Constitutional Courtwhere—
   1. the office of the Deputy President of the Constitutional Court is vacant;
   2. the Deputy President of the Constitutional Court is acting as President of the Constitutional Court; or
   3. the Deputy President of the Constitutional Court is for a reason unable to perform the functions of that office.

Article 140. Appointment of judges

The President shall, on the recommendation of the Judicial Service Commission and subject to ratification by the National Assembly, appoint the—

1. Chief Justice;
2. Deputy Chief Justice;
3. President of the Constitutional Court;
4. Deputy President of the Constitutional Court; and
5. other judges.

Article 141. Qualification for appointment as judge

1. A person qualifies for appointment as a judge if that person is of proven integrity and has been a legal practitioner, in the case of the—
   1. Supreme Court, for at least fifteen years;
   2. Constitutional Court, for at least fifteen years and has specialised training or experience in human rights or constitutional law;
   3. Court of Appeal, for at least twelve years; or
   4. High Court, for at least ten years.
2. A person appointed as judge to a specialised court shall have the relevant expertise, as prescribed.

Article 142. Tenure of office of judge

1. A judge shall retire from office on attaining the age of seventy years.
2. A judge may retire, with full benefits, on attaining the age of sixty-five years.
3. The Chief Justice and President of the Constitutional Court shall hold office for not more than ten years and may, thereafter, continue as a judge of the Supreme Court or Constitutional Court, subject to clause (1).
4. A judge who has retired is not eligible for appointment as a judge.
5. A judge may resign from the office of judge by notice, in writing, to the President.
6. Where a judge is appointed or assigned to an office, which is not an office in the judiciary and that judge wishes to take up the appointment, the judge shall resign from the office of judge.

Article 143. Removal of judge from office

A judge shall be removed from office on the following grounds:

1. a mental or physical disability that makes the judge incapable of performing judicial functions;
2. incompetence;
3. gross misconduct; or
4. bankruptcy.

Article 144. Procedure for removal of judge

1. The removal of a judge may be initiated by the Judicial Complaints Commission or by a complaint made to the Judicial Complaints Commission, based on the grounds specified in Article 143.
2. The Judicial Complaints Commission shall, where it decides that a prima facie case has been established against a judge, submit a report to the President.
3. The President shall, within seven days from the date of receiving the report, submitted in accordance with clause (2), suspend the judge from office and inform the Judicial Complaints Commission of the suspension.
4. The Judicial Complaints Commission shall, within thirty days of the judge being suspended from office, in accordance with clause (3)—
   1. hear the matter against the judge on the grounds specified in Article 143 (b), (c) and (d); or
   2. constitute a medical board, in consultation with the body responsible for regulating health practitioners, to inquire into the matter against the judge based on the ground specified in Article 143(a).
5. Where the Judicial Complaints Commission decides that an allegation based on a ground specified in Article 143(b), (c) and (d) is—
   1. not substantiated, the Judicial Complaints Commission shall recommend, to the President, the revocation of the judge’s suspension and the President shall immediately revoke the suspension; or
   2. substantiated, the Judicial Complaints Commission shall recommend, to the President, the removal of the judge from office and the President shall immediately remove the judge from office.
6. The proceedings under clause (4) (a) shall be held in camera and the judge is entitled to appear, be heard and be represented by a legal practitioner or other person chosen by the judge.
7. The medical board, constituted in accordance with clause (4)(b), shall consist of not less than three registered health practitioners.
8. The medical board shall, within thirty days of being constituted, examine the judge and report to the Judicial Complaints Commission on the judge’s capacity to perform the judicial functions.
9. Where the medical board recommends to the Judicial Complaints Commission that the judge is—
   1. physically or mentally capable of performing the judicial functions, the Judicial Complaints Commission shall recommend to the President the revocation of the judge’s suspension and the President shall immediately revoke the suspension; or
   2. not physically or mentally capable of performing the judicial functions, the Judicial Complaints Commission shall recommend to the President the removal of the judge from office and the President shall immediately remove the judge from office.
10. A judge who refuses to submit to an examination, in accordance with clause (8), shall immediately be removed from office by the President.

Judicial Officers and Chief Administrator

Article 145. Appointment and retirement of judicial officers

1. The Judicial Service Commission shall appoint judicial officers, as prescribed.
2. The qualification for appointment as judicial officer shall be prescribed.
3. A judicial officer shall retire on attaining the age of sixty-five years.
4. A judicial officer may retire, with full benefits, on attaining the age of fifty-five years.

Article 146. Chief Administrator of Judiciary

1. There shall be a Chief Administrator for the Judiciary who shall be appointed by the Judicial Service Commission.
2. The functions and qualifications of the Chief Administrator for the Judiciary shall be prescribed.