Mandate of the Judicial Complaintss Authority: Analysis of Faustin Kabwe V Attorney Genera
Date
2013-11-29
Authors
Chali, Bwalya
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Abstract
The Judicial Complaints Authority is a statutory body established pursuant to the provisions of the Judicial (Code of Conduct) Act, No. 13 of 1999. Its primary function is to receive and investigate complaints made against judicial officers and thereafter submit its recommendations to "the appropriate authority". The decision of the High Court in the case of Faustin Kabwe and Others v Judicial Complaints Authority confirmed this position. The purpose of this research is to examine whether the mandate of the Judicial Complaints Authority as set out under the Judicial (Code of Conduct) Act and espoused in the Faustin Kabwe case clothe it with sufficient power to act as an effective check on the Judicature of Zambia exercise of judicial power. This research first introduces importance of the notions of separation of powers and checks and balances that the need for the judiciary to be subject to checks and balances. It also illustrates the problem that stems from the fact that the mandate of the Authority is merely investigative and there is thus little shift in power and function as compared to the position before the establishment of the Authority thereby still rendering the judiciary subject to the whims of an arbitrary executive. This research further analyses the functions and mandate of the Judicial Complaints Authority and the decision in the Faustin Kabwe case and its import. In addition, this research engages in a detailed exposition of the link between the notions of separation of powers, checks and balances and independence of the judiciary as well as an examination the nexus between the notion of checks and balances with the functions and mandate of the Judicial Complaints Authority. This is followed by an analysis of the functions and mandate of bodies carrying out similar functions as the Judicial Complaints Authority in Zambia and within the Commonwealth was undertaken. Comparison was made with the Parliamentary and Ministerial Code of Conduct Tribunal in Zambia and
the National Judicial Council in Nigeria and the Kenyan Judicial Service Commission. The research concluded by illustrating that the functions and mandate of the Judicial Complaints Authority as they presently stand render the Judicial Complaints Authority and inefficient and ineffective player in furthering the achievement of effective checks on the judiciary. This research further outlined some recommendations that can be implemented in order to enhance the efficacy of the Authority as a check on the judicial power and superintendent of the Judicial Code of Conduct. These recommendations include; the setting of a specific time frame within which the Authority must undertake and complete its inquiry, vesting the Authority with the power to mete out sanctions, the making of the Authority's recommendations binding on the President, the specification of sanctions the Authority may impose and empowering the Authority to commence an inquiry of its own motion.
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Keywords
Judgements (Complaints)- Zambia , Judicial complaints- Zambia , Judicial Complaints Authority- Zambia