Faustine Mwenya Kabwe and Anor v Mr Justice Ernest Sakala and Ors (APPEAL NO. 152/2001; Supreme Court Judgment No. 25 of 2012) [2012] ZMSC 119 (12 October 2012)

Supreme Court Judgment No. 25 of 2012 IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (CIVIL JURISDICTION) APPEAL NO. 152/2001 BETWEEN: FAUSTINE MWENYA KABWE AARON CHUNGU lST APPELLANT 2ND APPELLANT and MR. JUSTICE ERNEST SAK. ALA MR. JUSTICE PETER CHITENGI (JUDGE OF THE SUPREME COURT) THE ATTORNEY-GENERAL 18T RESPONDENT 2ND RESPONDENT 3RD RESPONDENT CORAM: MAMBILIMA DCJ, CHIRWA AND MWANAMWAMBWA JJS On 11 th February 2010 and 12th October 2012 For the Appellants: For the Respondents: Mr. J. A. SANGWA, Simeza, Sangwa & Associates Mr. S. MALAMA, SC, Jacques & Partners Mr. W. NYIRENDA, SC, William Nyirenda & Co.; Mr. M. MUNDASHI, SC, Mulenga Mundashi & Co.; Mr. M. LUKWASA, Deputy Chief State Advocate, Attorney-General's Chambers; Ms L. K. ASONDE, M ulenga Mundashi & Co. MAMBILIMA, DCJ, delivered the judgment of the Court. JUDGMENT CASES REFERRED TO: 502 1. DR. J. W. BILLINGSLEY VS J. A. MUNDI j1982) ZR 11 2 . TURNKEY PROPERTIES LTD VS LUSAKA WEST DEVELOPMENT COMPANY LTD & 2 OTHERS (1984) ZR 85 3. HEYDON'S CASE (1584) 3 Co Rep 8 4 . MAGOR & ST. MELONS RDC VS NEWPORT CORPORATION (1950) 2 ALL ER 1226 at page 1236 5 . ATTORNEY-GENERAL FOR NEW SOUTH WALES VS BREWERY EMPLOYEES UNION OF NEW SOUTH WALES (1908) 6 CLR 469, AT PAGE 611-612 6 . ATTORNEY-GENERAL VS DOW (1994)b BCLK 1 7 . ATTORNEY-GENERAL VS AKASHAMBATWA MBIKUSITA LEWANIKA & FOUR OTHERS (1993/94)ZR 164 8. GODFREY MIYANDA VS MATTHEW CHAILA (Judge of the High Court)(l985) ZR 9. FRAY VS BLACKBURN 3B ANDS 576 10. MATISO & OTHERS VS THE COMMANDING OFFICER, PORT ELIZABETH PRISON ( 1994) 3 BCLR 80 11. RAFIU RABIU VS S (1981) NCLR 293 12. IFEZUE VS MBAQDUGHA & ANOTHER (1985) LRC (CONST.) 1141 13. STATE VS PETRUS & ANOTHER (1985) LRC (CONST) 699 14. RATTIGAN VS THE CHIEF IMMIGRATION OFFICER & OTHERS (1995) 1 BCLR 1 15. NYAMAKAZI VS THE PRESIDENT OF BOPUTOTSWANA (1994) 1 BCLR 92 16. ATTORNEY-GENERAL OF THE GAMBIA VS MOMODOU JOBE (1984) AC 689 17. ATTORNEY-GENERAL FOR NEW SOUTH WALES FS BREWERY EMPLOYEES' UNION OF NEW SOUTH WALES (1908) 6 CLR 469 at Page 611 -612 18. SOUTH DAKOTA VS NORTH CAROLINA (1940) 192 USA 28 19. S VS MAKONYANE & ANOTHER (1995) 6 BCLR 655 at 678 - 9 20. DHlKUSOOKA MAJIDU & 21 OTHERS VS THE ATTORNEY-GENERAL - CONSTITUTION PETITION No. 10 of 2009 21. MWAMBA VS THE ATTORNEY GENERAL (1993) 3 LRC 166 22. SIRROS VS MOORE & OTHERS (1975)Q. R 119 at 200 23. IN HIS REMARKS AT THE WOODROW WILSON INTERNATIONAL CENTER FOR SCHOLARS IN WASHINGTON D . C . ON 4TH MARCH 2005 24. MINISTER OF HOME AFFAIRS VS FISHER (1979) 3 ALL ER 21 LEGISLATION REFERRED TO: 1. THE CONSTITUTION OF ZAMBIA, CHAPTER 1 OF THE LAWS OF ZAMBIA 2 . THE INTERPRETA'rION AND GENERAL PROVISIONS ACT, CHAPTER 2 OF THE LAWS OF ZAMBIA 3 . SECTION 4(5) OF THE STATE PROCEEDINGS ACT CHAPTER 71, OF THE LAWS OF ZAMBIA 4. THE CRIMINAL PROCEDURE CODE, CAP 88 OF THE LAWS OF ZAMBIA 5 . PROTECTION OF FUNDAMENTAL RIGHTS RULES, STATUTORY INSTRUMENT NO. 156 OF 1969. This is an appeal from the decision of the High Court, dismis sin g a Petition taken out by the Appellants u n der Article 28(1) of the CONSTITUTION OF ZAMBIA 1, which petition sought in the main, the following declarations: (a) That the appointments of the t•t and 2 nd Respondents by the President not having been ratified by the National Assembly, the occupation and performance of the functions of the office of judge of the Supreme Court by the lat and 2 nd Respondents was ultra-vires Article 93(2) of the Constitution, hence null and void. (b) That the appointments by the President of the l•t and 2 nd Respondents as Judges of the Supreme Court not having been ratified by the National Assembly, the hearing of the Petitioner's appeal at Ndola on 2 nd June 2009 and the delivery of the 'judgment' on 9 th July 2009 by a panel of Judges consisting of Madam Justice Chibomba, and the 1st and 2 nd Respondents was ultra vires Article 18(9) of the Constitution in that the said panel did not constitute a court established by law hence null and void. (c) That the appointments by the President of the 1•t and 2 nd Respondents as judges of the Supreme Court not having been ratified by the National Assembly, the hearing of the Petitioners' appeal at Ndola on 2 nd June 2009 and the delivery of the 'judgment' on 9 th July, by a panel of Judges consisting of Madam Justice Chibomba, and the 1 • t and 2 nd Respondents was ultra vires Article 18(9) of tb,e Constitution in that the said panel was not independent and impartial hence, null and void. The Appellants also sought a further Order, that the 1st and 2 n d Respondents should vacate the office of Judge of the Supreme Court. The background to the Petition in this case can be briefly stated. The Petitioners were jointly charged on specific counts of corruption. They appeared before the Principal Resident Magistrate at Lusaka. The prosecution concluded its case and on 15th April 2009, the trial Magistrate found the Petitioners with a case to answer and put them on their defence. 504 On 27th April 2009, the Petitioners applied for judicial review of the judgment of the trial Magistrate before the High Court, seeking an Order of Mandamus, to compel the Principal Resident Magistrate to give reasons for his decision to put them on their defence. The High Court refused to grant them leave to apply for judicial review on the ground that decisions of Magistrates in criminal matters are subject to appeal under the Criminal Procedure Code and the remedy of judicial review could not therefore lie. Dissatisfied with the d ecision of the High Court, the Petitioners appealed to the Supreme Court and their appeal was listed before the Chief Justice (1 s t Respondent); Justice CHITENGI (Supreme Court Judge - 2 nd Respondent) and Madam Justice CHIBOMBA (acting Judge of the Supreme Court). The court rendered its judgment on 9 th July 2009 dismissing the appeal on the ground that there was no requirement under Section 26 of the Criminal Procedure Code for a Court to give reasons on a finding that an accused person has a case to answer. 505 On 21 st July 2009, the Petitioners filed the petition herein in the High Court, claiming the reliefs outlined above. Pending the hearing of the Petition in the Court below, the Appellants sought interim relief and applied for an Order restraining the 1st and 2 nd Respondents from occupying and performing the functions of the office of Judge of the Supreme Court until after the hearing and determination of the Petition. Before the interim application could be heard, the Attorney-General (3rd Respondent) filed a Notice under Order 33(4) of the Rules of the Supreme Court (1999) raising two preliminary issues. These are:- (a) Whether as Judges, the 1st and 2 nd Respondent are liable to be sued for actions taken or things done or omitted to be done by them in the discharge of their functions as judges. Alternatively, whether they are the right parties to be sued when they are neither the appointing authority for themselves nor do they cause their ratification. fb) Whether it is competent to seek relief by way of summons on matters that are brought by way of Petition under Article 28(1) of the Constitution. The learned Judge in the Court below first dealt with the second issue that was raised by the Appellants, that is: whether it is competent to seek interim relief of summons on matters that are brought by way of petition under Article 28(1) of the Constitution. He was of the view that this issue raised two other sub issues. The 506 first related to the mode of commencement of an action under the said Article 28 of the Constitution, while the other related to the actual interim applications that could be made subsequent to the filing of a petition. With regard to the first sub issue, the Judge found that Rule 2 of Statutory Instrument No. 156 of 1969, containing the PROTECTION OF THE FUNDAMENTAL RIGHTS RULES5 , specified that the mode of commencing an action under Article 28( 1) was by way of petition. With regard to the second sub issue, the Judge was of the view that Article 28(1) was very expansive in that it gave the Court jurisdiction to make such orders, issue such writs and give such directions as it may consider appropriate to enforce or secure enforcement of provisions contained in Articles 11 to 26 of the Constitution. He agreed with the Appellants that Article 28 envisaged that interim applications could be made following the presentation of the petition. He was however of the view that what seemed to be in contention in this case, was whether, the 507 application for interim relief by the Petitioners, in the manner that it had been framed, was competent. According to the Judge, the Order that the Petitioners were seeking by way of interim relief was a restrictive injunction, in that they wanted to restrain the 1st and 2 nd Respondents from occupying and performing the functions of a Judge of the Supreme Court until after the hearing and determination of their petition. To support their application, they had alleged that the 1st and 2nd Respondents were likely to interfere with the Court. Another allegation made by the Petitioners was that the 1st Respondent, in particular, had interfered in another matter pending before Judge PHIRI in the High Court. The Judge found that the contention that the Respondents would interfere with his Court was unsupported. He was also doubtful whether the 1st Respondent had interfered with Judge PHIRI but noted that the complaint with regard to Judge PHIRI was pending before the Judicial Complaints Authority. He consequently rejected the Petitioners' allegations altogether. The Judge also noted that the Appellants had prayed, under paragraph 19(e) of the main petition, for an Order that the 1st and 508 2 nd Respondents should vacate their offices as Judges of the Supreme Court. He opined that in view of this prayer, granting the interim relief sought would effectively determine th e substantive issue under paragraph l 9(e) of the Petition at an interlocutory stage. This, according to him, was not permissible. To buttress his position, he relied on our two decisions in the cases of DR. J. W. BILINGSLEY VS J. A. MUNDI1 and TURNKEY PROPERTIES LTD VS LUSAKA WEST DEVELOPMENT COMPANY LTD AND TWO OTHERS.2 In the latter case, the Court held that it was improper for a Court hearing an interlocutory application to make comments which may have the effect of pre-empting the decision on issues that are to be decided on merit at the trial. The Judge consequently found that while the Petitioners could make an application for interim relief under Article 28 of the Constitution, they could not get an Order that could effectively determine the issues that were in contention in the petition at an interim stage. He thus held that the summons for interim relief in this case was incompetent. On the issue that was raised by the Court, whether on reappointment of a Judge by the President under Article 981 (b) of 509 the Constitution, ratification by the National Assembly was required; the Judge was of the view that the question of the reappointment of a Judge under this provision had to be considered together with the issue of a Judge's first appointment to the Supreme Court or High Court. In this regard, he alluded to the provisions in the Constitution which govern appointments of Judges found in Articles 93 and 95 of the Constitution. He also alluded to the provisions of Article 98, which deal with tenure of office of Judges of the Supreme Court and of the High Court; and Article 99, which provides for the taking of an oath by a Judge upon appointment. The learned Judge noted that upon first appointment of a Chief Justice, Deputy Chief Justice, Judges of the Supreme Court and of the High Court under Articles 93 and 95 of the Constitution, ratification by the National Assembly was required. That the contention in this case was with regard to the reappointment of the said Judges, for a further period not exceeding 7 years as stipulated under Article 98(l)(b) of the Constitution. After considering the eloquent submissions that were made by the 510 parties before him, the learned Judge concluded that the re appointment of Judges under the Constitution had to be in line with the provisions of ARTICLE 138 of the Constitution. Sub article 1 of this provision provides: "Where any person has vacated any office established by this Constitution he may, after qualifying again be appointed or elected to hold that office in accordance with the provisions of this Constitution." The Judge also referred to Section 26 of THE INTERPRETATION AND GENERAL PROVISIONS ACT3 which provides: "Where by any written law a power to make any appointment is conferred, the authority having power to make the appointment shall also have power (subject to any limitations or qualifications which affect the power of appointment), to remove, suspend, re-appoint or reinstate any person appointed in the exercise of the power." The learned Judge then referred to a number of authorities on interpretation of statutes. He alluded to the general rule of interpretation laid down by Lord COCK in the HEYDON's case3 of 1584 when he posed the following questions:- 1. What was the common law before the passing of the Act? 2. What was the mischief and effect for which the common law did not provide? 3. What remedy did parliament resolve and appoint to cure, and, 4. The true reason of the remedy? The Judge referred to, among others, the words of Lord SIMONDS in the case of MAGOR AND ST. MELONS RDC VS NEW PORT CORPORA TION4 in which he was disagreeing with the views of Lord 511 DENNING encouraging Courts to fill up gaps and make sense of enactments. Lord SIMMONDS said: "The duty of the Court is to interpret the words the legislature has used, those words may be ambiguous but even if they are, the powers and duty of the Court to travel outside them on a voyage of discovery are strictly limited." He also referred to another portion of Lord SIMOND's judgment in the same case when, in respect of filling in the gaps in a statute, he stated: "It appears to me to be a naked usurpation of legislative function under a thin disguise of interpretation. And it is the less justifiable when it is guesswork with what material the legislature would, if it had discovered the gap, have filled it. If a gap is discovered, the remedy lies in an amending Act ... " The learned Judge concluded from these opinions, that if words in a statute are unambiguous, the legislative intention is best declared by the words themselves. He went on to state that it was not the duty of the Court to reconstruct a statute since that was the function of the legislature and if a gap exists, the remedy is to pass an appropriate amendment. He stated further that no inference should be drawn from legislative history where all the provisions, as in this case, are expressed and incorporated in one document, the Constitution. The Judge was alive to some decision emanating from other Commonwealth Countries, notably, the case of ATTORNEY- 512 GENERAL FOR NEW SOUTH WALES VS BREWERY EMPLOYEES UNION OF NEW SOUTH WALES5 in which HIGGINS, J stated: "Although we interpret the words of the Constitution on the same principles of interpretation as we apply to any ordinary law, these very principles of interpretation compel us to take into account the nature and scope of the Act that we are interpreting .... to remember that it is a Constitution, a mechanism under which laws are to be made and not a mere Act which declares what the law is to be. " The Judge also alluded to the case of ATTORNEY-GENERAL VS DOW9 in which the Botswana Court stated that: "The very nature of a Constitution requires that a broad and generous approach be adopted in the interpretation of its provisions; that all the relevant provisions bearing on the sub(ect for interpretation be considered together as a whole in order to effect the obfective of the Constitution." He also referred to our own decision in the case of ATTORNEY- GENERAL AND ANOTHER VS AKASHAMBATWA MBIKUSITA LEWANIKA AND FOUR OTHERS7 where BWEUPE, AG/CJ as he then was, said: "In the instant case, we have studied the Judgment of the Court below and we find it sound and correct by applying the literal interpretation. However, it is clear from SHARIZ AND NOTHMAN CASES that the present trend is to move away from the rule of literal interpretation to purposeful approach in order to promote the general legislative purpose underlining the provisions." With regard to the Zambian Constitution, the Judge found that the provisions of Articles 93 and 98 were very clear and not in any way in conflict. That Article 93 provides for new appointments to the Supreme Court and High Court, subject to ratification by the 513 National Assembly. It was his view that Article 98 has very plain and unambiguous provisions. It starts with the words 'Subject to the provisions of this Article.' According to the Judge, these words were carefully chosen by the framers of the Constitution and included in Article 98 to deal with two issues as stipulated in its proviso. The first issue is under paragraph 1 (a) of that Article and it allows the President to appoint a Judge of the High Court, on the advice of the Judicial Service Commission or, a Judge of the Supreme Court, who has attained the age of 65, to continue 1n office for a period necessary to enable them deliver judgments or complete proceedings which commenced before the Judge reached the retirement age. That there is no provision under paragraph 1 (a) for ratification of such an appointment. Consequently, the Judge rejected an opinion given to the Court, advocating that any appointment, for whatever term, must be ratified by the National Assembly. The second situation is the one under paragraph 1 (b) of Article 98, which allows the President to reappoint a Judge of the Supreme 514 Court or of the High Court, who has attained the age of 65, for a further term not exceeding 7 years. For a High Court Judge, such appointment is on the advice of the Judicial Service Commission. It was the view of the Judge that the President, under this Article, has absolute discretion to make such an appointment. In his view, it could not, by any stretch of imagination, be argued that such an appointment must be subjected to ratification. He opined that to subject such a Judge to ratification would be an affront to the purpose of the Constitution as succinctly expressed in Article 98(l)(b). According to the Judge, the intention of the legislature must be seen within the parameters of the Article. The Judge rejected a further argument advanced by the Appellants that all reappointments should be subjected to ratification to check Presidential powers. He was of the view that the purpose of ratification was to ascertain the competence, qualifications and suitability of a particular candidate on first appointment, to hold the post of High Court or Supreme Court judge. The National Assembly would have to satisfy itself that a particular candidate has sufficient qualifications to be appointed to 515 that office. He stated further that even if he was to accept the view that the intention of ratification was to ensure that the President did not have exclusive powers in the appointment of judges, the President, as Head of State, should retain certain residual powers on reappointments to minimize on costs and allow continuity in the office of a Judge. The Judge went on to state that in the case of the reappointment of a retired Judge under Article 98(l)(b), the President would be reappointing a person whose curriculum vitae had already been accepted by the National Assembly as being suitable to hold the office of Judge. He thus agreed with the Respondent's submission, that subjecting a retired Judge to ratification by National Assembly will imply incompetence, lack of qualifications and unfitness on the part of such a Judge to hold office when in fact the opposite is supposed to be true. According to the Judge, the position that Article 98 did not envisage ratification could be further discerned from the fact that this Article, together with Article 99 also apply to the Chairman and Vice Chairman of the Industrial Relations Court, who by law, do not require ratification on first appointment. It was his view that if 516 Article 98 was to be subject to the prov1s1ons of Article 93, as suggested by Counsel for the Petitioner, then ratification upon first appointment of the Chairman and Vice Chairman of the Industrial Relations Court would be required. Such a suggestion, according to the Judge, would be absurd and repugnant to common sense. The Judge was coignsant of the provisions of Article 138(1) of the Constitution which provides that where any person has vacated any office established by the Constitution, he may 'if qualified, again be appointed or elected to hold that office in accordance with the provisions of thts Constitution.' According to him, the words 'in accordance with the provisions of this Constitution' should be read within the ambit of Article 98 because that is the Article which is relevant to the reappointment of Judges. He added that paragraphs l(a) and 1 (b) of Article 98, like all other paragraphs in that Article, are subject to the provisions of the same Article. In his view the words 'in accordance with the provision of this Constitution' under Article 138( 1), can only mean and should be understood to mean provisions that are relevant to the specific office to which re-appointment is being considered and in 517 this case it is the provisions of Article 98. The Judge found that Article 98( 1) is not subject and cannot be interpreted to be subject to Article 93 of the Constitution even using the most liberal interpretation, because the relevant paragraphs in that Article are subject to the provisions of that Article only. With regard to the third and last preliminary issue raised; which was whether Judges are liable to be sued for actions taken or things omitted to be done by them in the discharge of their functions, the Judge found that the 1st and 2 nd Respondents, in their capacity as Judges, cannot be sued in their personal capacities and neither can the Attorney-General be sued vicariously for the Judges' decision to dismiss the Petitioners' appeal. He referred to the case of GODFREY MIYANDA VS MATTHEW CHAILA• (Judge of the High Court) in which a litigant sued a Judge for delay in a delivering judgment within a reasonable time. It was decided, in that case, that a Judge could not be taken to court for delaying in adjudicating on a case. The Judge highlighted some of the decisions that were referred to in the case of MIYANDA8 518 cited above. One of them is that of FRAY VS BLACKBURN9 in which CROMPTON J stated:- "It is the principle of our law that no action will lie against a Judge of one of the superior courts for the judicial act and though it be alleged to have been done maliciously and corruptly. The public are deeply concerned in this rule, which indeed exists for their benefit and was established in order to secure the independence of the judges, and prevent their being harassed by vexatious actions." The Judge also referred to the case of ANDERSON VS GLORY AND OTHERS9 in which Lord ESTHER M. R. said: "In my mind, there is no doubt that the proposition is true to its fullest extent, that no action lies for acts done or words spoken by a Judge in the exercise of his judicial office, although his motive is malicious and the acts or words are not done or spoken in the exercise of his office." The Judge concurred with the sentiments of the judges in these English cases. He added that Zambia embraces the doctrine of separation of powers; to the effect that in a nation which has political liberty as the direct object of its Constitution, no one person or body of persons ought to be allowed to control the legislative, executive and judicial powers or any two of them. He went on to state that in this country, the Judiciary exists for the benefit of society and the state as a whole, and, it is one of the three 519 arms of Government whose independence is recognized in Article 91(2) of the Constitution. The said Article provides:- "The Judges, Members, Magistrates and Justices as the case maybe, of the courts mentioned in Clause 1 shall be independent, impartial and subject only to this Constitution and the law and shall conduct themselves in accordance with the Code of Conduct promulgated by parliament." The Judge went on to state that SECTION 4(5) OF THE STATE PROCEEDING ACT4 recognizes this independence. It states:- "No proceedings shall lie against the State by virtue of this Section in respect of anything done or omitted to be done by any person while discharging or purporting to discharge any responsibilities of a judicial nature vested in him or any responsibilities which he has in connection with execution of judicial process." He was of the view that although the Attorney-General, as the legal representative of the State, may be sued vicariously for actions of public officers, no such suit lies against him for anything done or omitted to be done by judicial officers in the discharge or purported discharge of their official functions, notwithstanding that they are also public officers. The Judge observed that the Petition 1n this case emanated from the judicial functions performed by the 1st and 2 nd Respondents in Appeal No. 17 of 2009 as admitted by the 520 Petitioners in their petition. He rejected the arguments by the Petitioners' advocates that the 1st and 2 n d Respondent assumed offices of Judge of Supreme Court prematurely. He also rejected the proposition that the occupation and performance of the functions of the office of Judge of the Supreme Court by the 1st and 2 nd Respondents was ultra-vires Article 93 of the Constitution. He found that the two Respondents together with Madam Justice CHIBOMBA, lawfully constituted the court of the Supreme Court that decided the Petitioners' appeal as Supreme Court Judges. The Judge noted that the Petitioners took out this Petition after they had lost their appeal. He was of the view that consequently, the clear motive of the Petitioners was to demoralize, embarrass and demean the Judges and this amounted to vexation. He had grave doubts as to whether the Petitioners would have sued the 1st and 2 nd Respondents had their appeal before the Court succeeded. He dismissed the petition and ordered that each party should bear its own costs, on the ground that the petition had raised very crucial issues in the development of the country's constitutional law. 521 Dissatisfied with the judgment of the High Court, the Petitioners have now appealed to this Court against the entire judgment. They have advanced the following grounds of appeal: 1. The Court below misdirected itself on a point of law by relying on English case law on statutory interpretation in the interpretation of the Zambian Constitution, the supreme law of the land; 2. The Court below was wrong for adopting the literal interpretation of Article 98( l)(b) as opposed to 'a broad, generous and purposive interpretation' of the constitution as is the trend in all jurisdictions with written and supreme constitutions; 3. The Court below was wrong at law for ignoring all the provisions of the Constitution touching on the appointment and reappointment of judges of the Supreme Court and of the High Court as holders of constitutional offices, in particular Articles 1(4), 93, 98 and 138 of the Constitution, in the determination of the issues raised in the petition; and 4. The Court below was wrong at law in its interpretation of constitutional provisions for ignoring the concept of stare decisis by not following the decision of the Supreme Court in Akashambatwa Mbikusita Lewanika V The Attorney General, wherein the Court held that 'purposive interpretation was to be adopted in the interpretation of constitutional provisions." The Appellants are also contending with the preliminary issue that was raised by the lower Court under Order 14A of the Rules of the Supreme Court. They have advanced the following grounds of appeal: 1. The Court below misdirected itself on a point of law and fact for holding, at page 19 of the Judgment, that it was common ground that on the first appointment of the Chief Justice and the Deputy chief Justice and Judges of the Supreme Court under Article 93, ratification by the National Assembly was required. 2. The Court below misdirected itself on a point of law for holding that Article 93 provides specifically for new appointments .. .' and that both Counsel for the 'Respondents and for the Petitioners are in agreement on this point; 3. The Court below was wrong at law for holding that a judicial appointment made on the strength of Article 98(1)(b) does not require ratification by the National Assembly as provided for in Article 93 of the Constitution. 4. The Court below misdirected itself on appoint of law by holding that the words 'subject to the provisions of this Article,' were included in the Constitution to deal with the two issues as stipulated in the proviso. 5. The Court below misdirected itself on a point of both law and facts for holding, at page 35 of the Judgment, that ratification is necessary to ascertain the competence, qualification and suitability of a particular candidate on first appointment to the High Court or Supreme Court. 6. The Court below misdirected itself on points of both law and facts at page 35 to 36 of the judgment for holding that 'once the National Assembly has satisfied itself that the particular candidate has sufficient qualities to be appointed to the respective positions it must be assumed that at the time of re appointment he still has his qualification and other qualities that in fact he will be more experienced than he was at the time he was first appointed and his appointment ratified by the National Assembly. 7. The Court below misdirected itself on a point of law and facts when it held that 'it will therefore be bad administration to further subject a Judge who is reappointed by the President for further interviews, security reports and recommendations from law society and other interested parties that are always done on first appointment. 8. The Court below misdirected itself on a point of law and facts for holding that 'subjecting a retired Judge to ratification by the National Assembly will imply incompetence, lack of qualification, fitness on the part of such a Judge when in fact, at that stage, the opposite is supposed to be true that Article 98 did not envisage ratification can be further discerned from the fact that the said Article together with Article 99 do not apply to the Chairman and Vice Chairman of the Industrial Relations Court, as is known, by law do not require ratification on first appointment.' 9. The Court below misdirected itself on a point of law for holding that the words in Article 138( 1) 'in accordance with the provisions of this Constitution, .. can only mean and should be understood to mean provisions that are relevant to the specific office to which re-appointment is being considered, in the Article 98.' 10. The Court below misdirected itself on a point of law for holding that Article 98 does not make any provision for ratification by the National Assembly on the re appointment of a Judge who has attained the age of 65 years for a further period not exceeding seven years. 11. The Court below misdirected itself on a point of law for holding that 'Article 98(11 is not subject, and cannot be interpreted, to be subject, even using the most liberal interpretation, to Articles 93 of the Constitution. Lastly that Section l(a) and l(b) are subject to the provisions of Article 98 only.' 523 As against the preliminary issue, as to whether the 1st and 2nd Respondents are liable to be sued for actions taken or things done or omitted to be done by them in the discharge of their functions; the Petitioners have advanced the following grounds: "1. 2. The Court below misdirected itself on the point of law and fact when it held that the motive behind the petition 'was to demoralize, embarrass and demean the honourable judges and amounts to vexation• and that the Court 'takes umbrage at such conduct.' The Court below misdirected itself on a point of law when it held that the first and second Respondents cannot be sued in their personal capacities; neither can the Attorney-Genoral be sued vicariously for their decision in dismissing the Petitioners' appeal.'' Counsel representing the parties herein have filed written submissions which they augmented with oral arguments. At the outset, we wish to express our gratitude for the elaborate submissions. It is evident that a lot of industry was ploughed into their preparation. The learned Counsel for the Appellants has divided the appeal into three parts. The first part contains grounds that relate to the principles that the Court below followed in the interpretation of the constitutional provisions in contention. The second part has eleven grounds of appeal, and it is directed to the answer of the lower Court to the question as to "whether on the reappointment 524 of a judge of the High Court or Supreme Court by the President under Article 98(1)(b), ratification by the National Assembly is required." The last part has two grounds of appeal. They relate to the preliminary issue raised by the Respondents; that is, whether the 1st and 2 nd Respondents can be sued for actions taken or things done or omitted to be done by them in the discharge of their functions, or alternatively, whether the 1st and 2 nd Respondents are the right parties to be sued. We will deal with each part separately as argued before us. PART ONE As we have stated above, the grounds of appeal in this part raise issue with the principles of interpretation that were adopted by the Court below. The Appellants' submission in the main, is that a Constitution should not be construed like an act of Parliament or an ordinary statute. That provisions of a Constitution must be given a generous and purposive interpretation bearing in mind its foundational values and principles. That the Court below referred to a number of cases that were cited by the Appellant including the 525 case of AKASHAMBATWA MBIKUSITA LEWANIKA VS THE A TTORNEY-GENERAL7 which was binding on the Court. The Appellants contend that the notion of 'intenti.on of Parliament' has no place when it comes to constitutional interpretation. That this notion is more suitable to the United Kingdom constitutional order because that country has no written Constitution and the duty of the Court, when interpreting statutes is to give effect to the intention of the legislature. It is the submission of Counsel that having noted the two competing approaches on interpretation, the Court below went on to declare that the prov1s1ons of Article 98 were clear, without first determining the correct approach to be employed 1n the determination of the issues raised before it. According to Counsel, this Court rejected the literal approach to the interpretation of the Constitution 1n the case of AKASHAMBATWA MBIKUSITA LEWANIKA7 when it observed:- " ... Had the learned trial Judge adopted the purposive approach she would undoubtedly have come to a different conclusion. It follows, therefore, that whenever the strict interpretation of a statute gives rise to unreasonable and an unjust situation, it is our view that judges can and should use their good common sense to remedy it - 526 that is by reading words in if necessary - Parliament would have done had they had the situation in mind" so as to do what While agreeing with the pronouncement by the Court in this passage, that the High Court Judge ought to have adopted a 'purposive approach,' Counsel disagreed with the Court's pronouncement that the essence of the 'purposive approach' was to promote the legislative purpose of the provision. He argued that the essence of purposive interpretation of the Constitution is to give effect to its foundational values and objectives. To buttress this position, the learned Counsel for the Appellants cited the case of MATISO AND OTHERS VS THE COMMANDING OFFICER, PORT ELIZABETH PRISON10 in which the Court stated, inter alia:- "The interpretative notion of ascertaining 'the intention of the legislature' does not apply to a system of judicial review based on the supremacy of the Constitution, for the simple reason that the Constitution is sovereign and not the legislature .... The test now is to test legislation and administrative action against the values and principle imposed by the Constitution .... " According to the learned Counsel for the Appellants, there is now near global recognition and acceptance of the principle that provisions of a Constitution should be interpreted differently from those of a statute. To support his position, Counsel has taken us 527 on a voyage through decisions rendered by courts in vanous countries touching on the subject, beginning with Nigeria. In Nigeria, we have been referred to two decisions by the Supreme Court of Nigeria; RAFIU RABIU VS S 11 and the case of IFEZUE VS MBAGDUGHA AND ANOTHER12 • In the case of RAFIU RABIU VS S 11 the words of Sir Udo UDOMA have been quoted. He stated in part that " .... the function of the Constitution is to establish a framework and principles of government, broad and in general terms, indeed to apply to the varying conditions which the development of our communities must involve, ours being a plural dynamic society, and therefore, more technical rules of interpretation of statutes are to some extent inadmissible in a way as to defeat the principles of government enshrined in the constitution." In the latter case of MBAGDUGHA12 , Counsel referred us to the words of BELLO J. S. C., who was dissenting, when he said, inter alia: "Since the decision of this Court in the celebrated case of Rabiu Vs The State the general pri.nciples for the interpretation of our Constitution have been laid down. The fundamental principle is that such interpretation as would serve the interest of the Constitution and would best carry out its object and purpose should be preferred. To achieve this goal, its relevant provi.sions must be read together and not disjointly; where the words of any section are clear and unambiguous, they must be given their ordinary meaning unless this would lead to absurdity or be in conflict with other provisions of the Constitution and effect must be given to those provisions without any recourse to any other consideration ... " Counsel submitted that in giving effect to the objectives of the Constitution, there is need to harmonize its various provisions. That a prov1s1on should not be construed in a manner that will defeat or undermine another. He argued that, all releva nt provisions in a Constitution ought to be identified and interpreted together in order to give effect to the object or purpose of the Constitution. -Nearer home, in Botswana, the learned Counsel for the Appellant referred us to the case of the STATE VS PETRUS & ANOTHER13 which was decided by the Court of Appeal of Botswana. In the said case, AGUDA J. A. referred to among others, the case of RABIU VS S 11 and endorsed the principle that where there is a written Constitution, it should be interpreted differently from an act of parliament. In the case of ATTORNEY-GENERAL VS DOW9 the said AGUDA J. A. endorsed the approach of a generous interpretation of constitutional provisions. He stated, inter alia, "Generous construction means in my own understanding that you must interpret the provisions of the Constitution in such a way as not to whittle down any of the rights and freedoms unless by very clear and unambiguous words such 529 interpretation is compelling. The constn1ction can only be purposive when it reflects the deeper inspiration and aspiration of the basic concepts which the Constitution must forever ensure, in our case the fundamental rights and freedoms entrenched in Section 3." Counsel submitted that the Court below leaned on British cannons of interpretation which are not useful in our jurisdiction because the United Kingdom has no written Constitution. That the Constitution is not to be interpreted by merely focusing on the text of the Constitution, but that the meaning ascribed to the provisions will be informed by the purpose that the provisions were designed to serve. He contended that the Court below failed in its duty in this respect and failed to even heed our decision in the case of ATTORNEY-GENERAL vs AKASHAMBATWA MBIKUSITA LEWANIKA7 in which we applied a broad interpretation to provisions of the Constitution. Coming to Zimbabwe, Counsel referred us to the words of Chief Justice A. R. GUBBAY, in the case of RATTIGAN VS THE CHIEF IMMIGRATION OFFICER & OTHERS 14, when, with regard to a proper approach when construing fundamental rights and protections, he said that: " ... what is to be avoided is the imparting of a narrow, artificial, rigid and pedantic interpretation; to be preferred is one which serves the interest of the Constitution and best carries out its objects and promotes its purpose. All relevant provisions are to be considered as a whole and when rights and freedoms are conferred on a person, derogations therefrom, as far as language permits, should be narrowly or strictly construed." According to Counsel, four principles can be gleaned from what Justice GUBBAY said. First, that the guiding objective in interpreting the Constitution is to establish its objectives and underlying values. One must first determine what the Constitution was intended to achieve. Secondly; once this picture is clear, it is that picture that would determine the meanings to be ascribed to the various provisions of the Constitution. Whatever meaning is ascribed to a provision must not distort or contradict the constitutional scheme. Thirdly; to achieve the objective of giving true meaning to the various provisions of the Constitution, there is need to avoid artificial or rigid interpretation of the provisions, in favour of a more generous one and, lastly; that in the process of interpreting the Constitution, all the provisions of the Constitution that are relevant to the subject must be considered. The learned Counsel for the Appellants also referred to some decisions from South Africa. One such decision is that of NYAMAKAZI VS PRESIDENT OF BOPUTOTSWANA15 and 531 specifically to the words of FRIEDMAN J, when he attempted to formulate some rules or guidelines on the interpretation of a written constitution containing a Bill of Rights. He came up with fifteen principles or such guidelines. Some of them are that: • however the language of a constitution is construed, its ordinary grammatical meaning cannot be dissolved away; • • that in interpreting a constitution, the ordinary canons and rules of interpretation of statutes must yield to a more liberal construction; and that the plain words of relevant clauses of the constitution must be looked at, and the language used must not be given a forced narrow or technical interpretation which does violence to the language thereof. Counsel also referred us to decisions of the Privy Council in which judges emphasized that when interpreting a written Constitution and in particular, the part that deals with the protection and interpreting of fundamental rights and freedoms, Courts must adopt a generous and purposeful interpretation. One such case is that of ATTORNEY-GENERAL OF THE GAMBIA VS MAMOUDO JOBE16 in which Lord DIPLOCK said:- "A constitution, and in particular that part of it which protects and entrenches fundamental rights and freedoms to which all persons in the state are to be entitled, is to be given a generous and purposive construction." 532 Arising from these authorities, it was the view of Counsel that the Court below fell into error when it construed Article 98 of the Constitution in the same way as it would have construed the provisions of an Act of Parliament. It is his view that the Court below ignored authorities from various jurisdictions that have written constitutions and also refused to be bound by the principles of interpretation of the constitution that were laid down by this Court in the case of ATTORNEY-GENERAL, THE MOVEMENT FOR MULTI-PARTY DEMOCRACY VS AKASHAMBATWA MBIKUSITA LEWANIKA AND OTHERS7 • He submitted that as a result, the interpretation of the provisions of the Constitution that was adopted by the Court below cannot stand; that the findings and conclusions that were reached by the Court are therefore not sound at law and must be set aside. The learned Counsel for the Appellants then went on discuss the foundational values and objectives of the Constitution of Zambia. He looked at the history of the constitution making process in Zambia including the reports of commissions that were constituted to review the constitution. 533 In response to the submissions of the Appellants in support of the grounds of appeal in Part one, the learned Counsel for the Respondents argued each ground individually. On the first ground of appeal; which is that the Court below misdirected itself on a point of law by relying on English case law on statutory interpretation 1n interpreting the prov1s1on of the Zambian Constitution; Counsel submitted that nothing could be further from truth. That the learned Judge in the Court below in fact addressed his mind to all the relevant authorities on the issue of statutory and in particular constitutional interpretation. That the authorities cited by the Court did not only originate from the English jurisdiction. To support this argument, Counsel referred us to four cases that were cited by the lower Court. The first one is that of ATTORNEY-GENERAL FOR SOUTHERN WALES VS BREWERY EMPLOYEES' UNION OF NEW SOUTH WALES5 • The learned Judge in the Court below on page J 32, quoted a passage by HIGGINS J in that case, stating that:- "Although we interpret the words of the Constitution on the same principles of these principles of interpretation as we apply to any ordinary interpretation compel us to take into account the nature and scope of the Act that we are interpreting .... to remember that it is a constitutton, a mechanism law, 534 under which laws are to be made and not a mere Act which declares what the law is to be" That on the same page J 32, the learned Judge also referred to the case of SOUTH DAKOTA VS NORTH CAROLINA19 wherein the Judge quoted a passage by Justice WHITE who said: "1 take it to be an elementary nde of constitutional construction that not one provision of the constitution is to be segregated from all the others and to be considered alone but that all the provisions bearing upon a particular subject are to be brought into view and to be so interpreted as to effect the great purpose of the instrument. The learned Counsel for the Respondents further submitted that from Botswana, the learned Judge cited the case of ATTORNEY GENERAL VS DOW6 and specifically referred to the words of AMISSAH, J. P., who after referring to several cases on constitutional interpretation stated that: "The very nature of a constitution requires that a broad and generous approach be adopted in the interpretation of its provisions. That all the relevant provisions bearing on the subject for interpretation be considered together as a whole in order to effect the objective of the constitution." That the last case cited by the Court on page J 33 is our decision in the case of ATTORNEY-GENERAL AND ANOTHER VS AKASHAMBATWA MBIKUSITA LEWANIKA AND OTHERS7 in which we stated inter alia that: 535 "In the instant case we have studied the judgment of the court below and we find it sound and correct by applying literal interpretation. However, it is clear from SHARIZ AND NOTHMAN cases that the present trend is to move away from the rule of literal interpretation to purposeful approach in order to promote the general legislative purpose underlying he provisions." It is the submission of Counsel that these cases do show that the court below was not only swayed by English cases but placed reliance on cases from a cross section of the world, including the Zambian case of ATTORNEY-GENERAL VS AKASHAMBATWA MBIKUSITA LEWANIKA AND OTHERS7 • Counsel submitted that in the manner that the first ground of appeal is couched, a mere demonstration that the court below did not rely on English case law alone must defeat the ground of appeal. The second ground of appeal is that the Court below was wrong at law for adopting the literal interpretation of Article 98(1)(b) as opposed to "a broad generous and purposeful interpretation" as is the trend in all jurisdictions with written and supreme constitutions. The learned Counsel for the Respondents submitted that the Appellants' hinge this ground on their understanding of the case of ATTORNEY-GENERAL AND OTHERS VS AKASHAMBATWA MBIKUSITA LEWANIKA AND OTHERS7 • 536 That at page 5 of the Appellants' heads of argument, it is patently clear that the Appellants believe that the decision in the case of LEWANIKA7 necessarily entailed a movement away from the literal interpretation of the Constitution in favour of a purposeful approach. According to Counsel, this reasoning is flawed because the decision in the LEW ANIKA case does not make any such pronouncement. They submitted that after the High Court had employed a literal interpretation of the Constitution and this Court stated that: "In the instant case, we have studied the judgment of the court below and we find it sound and correct by applying the literal interpretation." The Court then went on to state: "However, it is clear from the SHARIZ AND NOTHMAN Cases that the present trend is to move away from the rule of literal interpretation to 'purposeful approach' in order to promote the general legislative purpose underlying the provision .... it follows, therefore, that whenever the strict interpretation of a statute gives rise to unreasonable and unjust situation, it is our view that judges can and should use their common sense to remedy it ... " According to Counsel, the Court in this passage was saying two things. First, that it was correct for the lower court to have adopted a literal interpretation of the Constitution, and secondly; that where strict interpretation of a statute gives rise to an unreasonable and 537 unjust situation, alternative methods of interpretation are preferred. Counsel argued that the holding in the LEWANIKA7 case cannot be a basis to suggest that this Court held that in Zambia the practice was to avoid the literal interpretation in favor of a more purposeful approach in all cases. They submitted that the authorities cited from various foreign jurisdictions do not also support the notion that foreign courts have all consistently moved away from literal interpretation. The learned Counsel for the Respondents have further submitted that in the case of IFEZUE VS MBAGDUGHA AND ANOTHER12 , the Appellants have curiously sought to rely on a dissenting judgment of BELLO, JSC, which seeks to suggest that Courts should adopt a broader interpretation when considering a constitution. According to Counsel, what the Appellants did not bring to the attention of this Court, is that ANIAGOM JSC, who delivered the decision which was agreed upon by five other judges, stated among others, that: "The decision of the only issue in this appeal is, in my view, a very simple one once we return to basic principles and well settled cannons of constructions of statutes. The first of these is that if there is nothing to modify, alter or qualify in the language of a 538 statute, it must be construed in the ordinary and natural meaning of the words and sentences used ... The courts are not to defeat the plain meaning of enactment by an introduction of their own words into the enactment as was done, wrongly in D E OJUMAGHA VS W G EGBE (1965) 1 NLR 62 - a process of judicial legislation." That ANIAGOM, JSC then went on to refer to the Commonwealth attitude with respect to interpretation of constitutions. He stated: "As of now, the present Commonwealth attitude would appear to be as stated by Lord WILBERFORCE in the case of the MINISTER OF HOME AFFAIRS VS FISHER (PC) (1980). The Lord laid down what he considered should be the the rules of interpretation of a Constitution. He said:- law applicable to ' A Constitution is a legal instrument giving rise, amongst other things, to individual rights capable of enforcement in a court of law. Respect must be paid to the language which has been used and to the traditions and usages which have given meaning to that language. It is quite consistent with this, and with the recognition that rules of interpretation may apply, to take as a point of departure for the process of interpretation, a recognition of the character and origin of the instrument, and to be guided by the principle of giving full recognition and effect to those fundamental rights and freedoms with a statement of which the Constitution commences." The learned Counsel for the Respondents argued that it is this extract, and not the dissenting view of a single judge, which constitutes the law of the Supreme Court of Nigeria. They submitted that it is a gross misrepresentation and a senous misapprehension of the law, to state, as the Appellants have done, that it is the trend in all jurisdictions with written constitutions to abandon the literal interpretation in favour of a broad and 539 purposeful interpretation. According to Counsel, this Court, in the case of LEW ANIKA 7 , found that the provisions of the statute in issue were clear and unambiguous and that therefore there was no need to modify the language used. It is their submission that the decision of the Judge in the court below was clearly in line with both the foreign authorities cited, and, the case of LEWANIKA AND OTHERS7 and it should therefore not be disturbed. Coming to the third ground of appeal; that the Court below, when determining issues raised in the Petition was wrong at law, to have ignored all the provisions of the Constitution touching on the appointment of judges of the Supreme Court and High Court and the reappointment of holders of constitutional offices, in particular in Articles 1(4), 93, 97, 98 and 138 of the Constitution; the learned Counsel for the Respondents submitted that as with the first and second grounds of appeal, the Appellants have grounded this head on a misconception of facts. Counsel contended that the third ground is misconceived as it 1s based on the supposition that the court below ignored the provisions of the Articles in question. Counsel, referred us to 540 various portions of the judgment of the Court below in which the said Articles were referred to. They stated that Article 98 was referred to on pages J34 and J35; Article 93 on page J 37; Article 99 on page J38; and Article 138 also on page J 38. Counsel submitted that the only provision that the Court may not have successfully made reference to was at Article 1(4). According to Counsel, what is cardinal is that the court pronounced itself on all the issues in the dispute as reflected in the record of appeal. That the Appellants have not, in their heads of argument, deemed it necessary to argue how the non reference to Article 1(4) should be the reason for this Court to overturn the decision of the Court below. In their view, this ground of appeal has no merit and it must fail. On the 4 th ground of appeal, that the court was wrong at law, 1n its interpretation of constitutional provisions by ignoring the concept of stare decisis in not following the decision of this Court in the case of AKASHAMBATWA MBIKUSITA LEWANIKA AND OTHERS7 , wherein it was held that the purposive interpretation was to be adopted in the interpretation of constitutional provisions, 541 the Respondents relied on the arguments that they advanced in response to the second ground of appeal. They argued that the Court below did not depart from the decision of this Court in the LEWANIKA case and that this ground of appeal is unmeritorious and must fail. We have considered the submissions of Counsel and the issues raised in Part One. What is in contention under this part are the principles of interpretation that were employed by the Court below on the provisions of the Constitution in question. It is the position of the Appellant in the main, that the Court below adopted a literal construction of the provisions of the Constitution in issue contrary to the global trend which is now leaning towards a broad and purposive approach thereby bringing to the fore, the Constitution's foundational values and principles. It has been argued that the notion of 'intention of parliament' has no place in constitutional interpretation in jurisdictions where there are written constitutions. That the Court below ignored authorities cited from various jurisdictions which show a shift from the principle of literal construction of constitutional provisions to a broad and purposive 542 interpretation. That the Court declared the provisions of Article 98 to be clear without determining the correct approach to be adopted from the two competing positions when determining the issues that were raised before it. It is the view of the Appellants that the Court below even ignored the holding by this Court in the case of ATTORNEY-GENERAL vs AKASHAMBATWA MBIKUSITA LEWANIKA & OTHERS.7 The Respondents have argued otherwise. It is their position that the trial Judge in fact addressed his mind to all the relevant authorities on both Statutory and constitutional interpretation originating from various jurisdictions and his decision was the ref ore not only informed by English decisions. The Respondents stated further that, it was a gross misrepresentation and a serious misapprehension of the law on the part of the Appellants to state that all jurisdictions with written Constitutions have abandoned the literal interpretation in favour of a broad purposive approach. According to the Respondents, the lower Court did not depart from our decision in the case of AKASHAMBATWA MBIKUSITA LEWANIKA7 • 543 It is trite that a constitution of a country ranks higher to a legislative enactment. The Constitution thus becomes the supreme law of the land. It creates the organs and offices of the State and clothes them with their powers and functions. In most cases, it also confers on, and defines the rights that, individuals and citizens will enjoy, usually through a bill of rights. It is usually framed by the people through mechanisms of choice and also adopted through a mechanism of choice. In the process towards adoption, there will inevitably be a discussion of content reflecting the will and aspirations of the people. Thus, to most constitutions, there is a background which provides a context to its provisions. Being the supreme law which created among others, the legislature, the true intent of the provisions of a constitution may be ascertained from the background to its adoption. What would be cardinal in this instance is the intention of the framers of the constitution not the intention of Parliament, unless what is in issue is an amendment that was promulgated by Parliament. We therefore agree with observations of Mr. SANGWA on this point. 544 Whenever there is ambiguity in the meaning of a statute or indeed the Constitution itself, the pnmary principle of interpretation is that the meaning of the text should be derived from the plain meaning of the language used. In other words, the natural and ordinary meaning of the words used should convey the true intent of the originators of the text. Other principles of interpretation should only be called in aid where there is ambiguity or where such literal interpretation will lead to absurdity. BELLO, J. S. C., made this point in the case of RAFIU RABIU VS S 11 referred to us by Mr. Sangwa when he said, inter alia: " .... where the words of any section are clear and unambiguous, they must be given their ordinary meaning unless this would lead to absurdity or be in conflict with other provisions of the Constitution .... " Justice Antonin SCALIA23 echoed this point when he said: "Our manner of interpreting the Constitution is to begin with the text, and to give that text the meaning that it bore when it was adopted by the people." As FRIEDMAN J stated in one of his guidelines referred to us by Mr. SANGWA in the case of NYAMAKAZI VS PRESIDENT OF BOPUTOTSWANA15 ; however the language of the Constitution 1s construed, its ordinary grammatical meaning cannot be dissolved 545 away. Having ascertained the text, it must be borne in mind that a constitution is not an ordinary statute. It may have several provisions touching on the same subject. Case law abounds that all the provisions touching on the subject must be considered. In the words of AMISSAH J. P. in the case of ATTORNEY-GENERAL VS DOW6 " •••• That all the relevant provisions bearl.ng on the subject/or interpretation be considered together as a whole in order to effect the objective of the constitution." Also, while providing for the current scenario, it is expected that a constitution will stand the test of time and serve future generations and situations. Against this reality, one cannot rnle out a possibility that a constitution could be construed in such a way that it assumes different meanings through different generations, each one of them being correct for its time. This is especially the case when the constitution is expressed in broad terms. It assumes a flexibility that can be stretched to cover varying situations without the need for an amendment. From the foregoing, it is thus trite and desireable that at any given time, provisions of a constitution are considered as a whole, 546 without losing sight of its language, foundational values, traditions and usages that could have influenced its language. We therefore agree entirely with the words of Sir UDOMA, in the case of RAFIU VS S 11 , that the function of a constitution is to establish a framework and principles of government that will apply to varying conditions and should be construed in such a way that the principles of government enshrined therein are not defeated. The various a uthorities cited to us and indeed a plethora of other cases show that the literal interpretation of a constitution is stretched even further when such a constitution contains a bill of rights. Cases across various jurisdictions show that when it comes to the interpretation of a constitution containing a bill of rights, courts will usually adopt a generous and purposive approach. This is aptly summarized by Lord DIPLOCK, in the case of ATTORNEY GENERAL OF GAMBIA VS MAMOUDOU, JOBE16 , referred to above when he said that, "A constitution, and in particular, that part of it which protects and entrenches fundamental rights and freedoms to which all persons in the state are entitled, is to be given a generous and purposive construction." We endorsed 547 this principle in the case of AKASHAMBATWA MBIKUSITA LEW ANIKA 7 when we held that a purposive approach should be adopted if the strict interpretation would give rise to an unreasonable and unjust situation. The rationale for this approach 1s clear; the prov1s1ons conferring the rights and freedoms should not be narrowly construed but stretched in favour of the individual so as to ensure that the rights and freedoms so conferred are not diluted. The individual must enjoy the full measure and benefits of the rights so conferred and in this respect, any derogations to the rights will usually be narrowly or strictly construed. Stretch, as the court may, there must always be a realization that not all situations may be brought within the ambit of the constitutional provisions. There will be a time when even the most ardent judicial activists will not be able to sweep a situation into the umbrella of a provision without straying into judicial legislation and usurping the function of another arm of government. As ANIAGON JSC stated in the case of IFEZUE VS MBAGDUGHA AND ANOTHER12 " •••• the courts are not to defeat the plain meaning 548 of an enactment by an introduction of their own words into the enactment ... " In such a case, the only option available is the invocation of the amendment clause by Parliament. It is the argument of Counsel that the learned trial Judge construed the provisions of the Constitution in question that is Article 98, in the same way that it would have construed an Act of Parliament; that the Court ignored the authorities from various jurisdictions that were cited and even refused to be bound by principles laid down 1n our decision 1n the case of AKASHAMBATWA MBIKUSITA LEWANIKA7 • We have carefully perused through the judgment of the Court below. Indeed, cases from various jurisdictions were cited to the Court. The Court first alluded to principles of interpreting statutes. The Judge referred to the rules laid down in HEYDAN's case3 and the opinions of Lord DENNING and Lord SIMONDS in the case of MAGOR AND ST. MELONS RDC VS NEWPORT CORPORATION4 Lord SIMONDS stated that the duty of the Court is to interpret the words the legislature used; that filling the gaps in a statute is a naked usurpation of a legislative function; "under the thin guise 549 of interpretation." The learned trial Judge then stated on page J 31 :- "It is quite obvious from these learned opinions that where the words in an enactment of statute are unambiguous the legislative intent is best declared by the words themselves. Further that it is not the duty of this Court to reconstruct a statute, that is the function of the legislature. If a gap exists the remedy is to pass an appropriate amendment. Further, that no inference should be drawn from legislative history, where all the provisions, as in this case, are expressed or incorporated in one document, namely, the Constitution." From this passage, it could be said that the Judge in the Court below looked at the Constitution as a legislative enactment. He referred to the 1egislative intent' being best declared by the words themselves. As stated above, Mr. SANGWA has argued that legislative intent or intention of parliament has no place in constitutional interpretation. He thus disagrees with the views of this Court 1n the case of AKASHAMBATWA MBIKUSITA LEWANIKA7 wherein we held that where strict interpretation of a statute gives rise to an unreasonable and unjust situation, judges should use their good common sense to remedy the situation " ... so as to do what parliament would have done had they had the situation in mind." 550 We agree that a written constitution, though it could be passed or promulgated by Parliament is a higher law which is usually a culmination of a process of consultations or discussions of a wider constituency of the people. From that premise, the contents or provisions of the document are those of the framers, but adopted and passed by Parliament. In case of ambiguity, the intention of the framers and the context of the provision can be derived from the background and material leading to the process of the adoption of the document, unless, as we have stated above, the provision is a product of an amendment by parliament. The Zambian Constitution has several provisions on the appointment of judges to the higher bench. Article 93(1) and (2) provides for the appointment of the Chief Justice, the Deputy Chief Justice and the judges of the Supreme Court. Article 95(1) and (2) provide for the appointment of Judges of the High Court, the Chairman and Deputy Chairman of the Industrial Relations Court. Qualifications for appointment to these offices are outlined in Article 97 while Article 98 provides for the tenure of office with a proviso allowing the President to appoint a judge for a further term 551 not exceeding seven years upon reaching the retirement age of 65 years. The Court, in this case was called upon to interpret the proviso. The judgment of the Court below shows that the Court did not only consider the British authorities. The Judge stated that he was alive to "some decisions made specifically on the constitutional interpretation" in the commonwealth. He referred to the Australian case of ATTORNEY-GENERAL FOR NEW SOUTH WALES VS THE BREWARIES UNION OF NEW SOUTH WALES6 in which, after noting that the words of a Constitution are interpreted on the same principles as applied to ordinary law, the Court observed that " ...• these very principles of interpretation compel us to take into account the nature and scope of the Act we are interpreting ... to remember that it is a Constitution, a mechanism under which laws are to be made and not a mere Act which declares what the law is to be.'' The Judge also referred to the case of ATTORNEY-GENERAL V DOw6 from Botswana in which the Court held that a Constitution requires a broad and generous interpretation. He also referred to the 552 American case of SOUTH DAKOTA VS NORTH CAROLINA18 in which Justice WHITLE of the United States Supreme Court stated that an elementary rule of constitutional construction is that "no one provision of the Constitution should be separated from all the others, and to be considered alone but that all the provisions bearing in a particular subject are to be brought into view and to be so interpreted as to effect the great purpose of the instrument." The Judge ended by referring to a passage in our decision in the case of AKASHAMBATWA MBIKUSITA LEWANIKA7 where we said: "In the instant case, we have studied the judgment of the Court below and we find it sound and correct by applying the literal interpretation. However, it is clear from SHARIZ AND NOTHMAN cases that the present trend is to move away from the role of literal interpretation to purposive approach in order to promote the general legislature purpose undertaking the provisions." The Judge then went on to consider the prov1s1ons of the constitution that were in contention before him. From these references to decisions from other jurisdictions, it is clear to us that the Judge in the Court below was alive to the fact that he was interpreting a Constitution, and not an ordinary statute; that all the provisions bearing on the subject had to be 553 considered; that interpretation of a Constitution required a broad and generous approach; and indeed that he referred to our own case of AKASHAMBATWA MBIKUSITA LEWANIKA7 • From the foregoing, it is our considered view that in reaching his decision, the Judge in the Court below cast his net wide and considered not only authorities from Britain, but also those from other jurisdictions. As stated above, he also alluded to the AKASHAMBATWA MBIKUSITA-LEWANIKA case. We therefore do not agree with Mr. SANGWA that he ignored decisions from other jurisdictions. Consequently, we find no merit in the grounds of appeal that have been advanced in Part One. PART TWO Part two has eleven grounds of appeal. We have outlined them above. The grounds seek to answer the question that was posed by the lower Court as to whether, on re-appointment by the President under Article 98(1)(b) of the Constitution, a judge needs to be ratified by the National Assembly. The learned Counsel for the Appellants submitted that on the basis of the authorities that he had cited in support of the grounds of appeal in Part One, the lower 554 Court erred in answer to this question. He argued all the eleven grounds of appeal in this part together. Provisions on reappointment of judges are found in Article 98 of the Constitution. Counsel submitted that in interpreting the said Article, the Court needed to explore the background to the enactment of the current Constitution. In support of his contention, he cited the case of S. VS MAKONYANE & ANOTHER20 in which CHASKALSON J, when considering provisions of the South African Constitution delved into its background. The Judge stated, inter alia, that: "In countries in which the Constitution is the singularly supreme law, it is not unusual for the courts to have regard to the statements existing at the time the Constitution was adopted including the debates and writings which form part of the process. The United States Supreme Court pays attention to such matters, and its judgments frequently contain reviews of the legislative history of the provision in question including reference to debates and statements made at the time the provision was adopted. The German Constitutional Court also has regard to such evidence. The Canadian Supreme Court has held such evidence to be admissible, and has referred to the historical background including the pre confederation debates for the purpose of interpreting provisions of the Canadian Constitution although it attaches less weight to such information than the United States Supreme Court does." CHASKALSON, J went on to note that the South African Constitution was a product of negotiations that were conducted 555 during the multi-party negotiation process and that such background could provide a context for interpreting the Constitution. The learned Counsel for the Appellants then explored the mode of appointing judicial officers in this country, starting from the late 19th century up to the current Constitution. The mode of appointment has changed from time to time. Under the Independence Constitution which was in force from 1964 to 1973, Judges of the High Court and the Court of Appeal were appointed by the President on the advice of the Judicial Service Commission. The Chief Justice was appointed by the President in his own right. The Judges served up to sixty-two years of age but the President had the prerogative to extend the period to enable a judge complete tasks that were commenced before the judge reached retirement age. Counsel also looked at the mode of appointing judges under One Party State Constitution that reigned from 1973 to 1991. The retirement age for judges was increased to sixty five. The Chief Justice and Judges of the Supreme Court were directly appointed 556 by the President in their own right while the appointment of High Court Judges was dependant on the advice of the Judicial Service Commission. Counsel pointed out that under Article 113(7) of that Constitution, only the High Court Judges were permitted an extension upon reaching retirement age to enable them finish pending work. There was no similar provision for the Chief Justice or other Supreme Court Judges. Counsel submitted that under the current Constitution, Judges of the Supreme Court are appointed by the President alone while those of the High Court are appointed by the President on the advice of the Judicial Service Commission. Both appointments are subject to ratification by the National Assembly. That as a result of the requirement of ratification, the appointment of Judges is now an act of collaboration between the President and the National Assembly. According to Counsel, the Court below ignored the rich history of the process of appointing judges in its construction of the constitutional provisions providing for the appointment of judges. He contended that this was a serious dereliction of duty on the part 557 of the Court because the procedure for the appointment of judges has not been consistent. Counsel pointed out that the tenure of office for Judges 1s outlined in Article 98(1) which reads:- "Subject to the provisions of this Article, a person holding the office of Judge of the Supreme Court or the office of a judge of the High Court shall vacate office on attaining the age of sixty fife years." Article 98 ( 1) (b )provides:- "Provided that the President (a) (b) may appoint a judge of the High Court in accordance with the advice of the Judicial Service Commission, or a judge of the Supreme Court, who has attained the age of 65 years, for such further period not exceeding seven years, as the President may determine." It is the position of Counsel that the Court below misdirected itself in the interpretation of the proviso contained in Article 98 l(b). He argued that this Article should not be construed on its own, but should be considered in the context of all the relevant provisions on the subject matter. These are found in Articles 93, 97, 99 and 138. Counsel further submitted that the lower court misdirected itself on point of law and fact, when it stated, on page 27 of the record of appeal, that: 558 "it is common ground that on first appointment of the Chief Justice and Deputy Chief Justice and judges of the Supreme Court under Article 93 and of the Judges of the High Court under Article 95, ratification by the National Assembly is required." That the Court also misdirected itself when it held that Article 93 specifically provided for new appointments. The learned Counsel for the Appellants also raised issue with the statement by the Judge on page 40 of the record of appeal that both Counsel for the Respondents and Petitioners were in agreement that Article 93 provided for first appointments. According to Counsel, that there was no such agreement between the advocates. He argued that by holding that Article 93 only applied to the first appointment of judges, the Court below gave the Article a wrong and narrow interpretation. He submitted that the plain language of Article 93 does not support such a holding. That the Court read into the Article, words which are meant to limit its effect. That the report of the Constitution Review Commission did not contain any material that would lend support to this holding by the Court. Counsel relied on the judgment of BELLO JSC, in the case of IFEZUE VS MBAGDHUGA & ANOTHER12 , in which he stated that where a Constitution has used an expression in the 559 wider sense, the Court should always lean where the justice of the case so demands, that is, to the broader interpretation; unless there is something in the content or the rest of the Constitution which indicates that the narrower interpretation will best carry out its objective and purpose. Counsel submitted that there is nothing in Article 93 or any other provision of the Constitution which suggests that the requirements of Article 93(2) are limited only to first appointments of judicial officers. According to Counsel, the meaning of Article 93(1) and (2) which is consistent with the broad and purposive interpretation of the provisions is simply that if one has to occupy the office of Chief Justice, Deputy Chief Justice or judge of Supreme Court, such person must be appointed by the President and the appointment has to be ratified by the National Assembly. It is his view that such an interpretation is in accord with the foundational values and principles of the Constitution on separation of powers in that neither the President nor the National Assembly has the power alone, to install any person in these offices. He stated that this interpretation of the Constitution guaranties 560 transparency and accountability in the appointment of judicial officers in accord with the ideals contained in the preamble. The learned Counsel for the Appellants further submitted that Article 93(1) (2) has to be read in accord with other provisions of the Constitution, the immediate one being Article 97. That while Article 93 stipulates the appointment procedure for the judicial officers, it does not address who can be appointed to the judicial offices. Article 97 outlines the qualifications of persons to be appointed to such offices. Counsel further submitted that neither Article 93 nor Article 97 alone or together provide a complete picture on the appointment of judges. Article 98(1) comes in to address the issue of tenure of office of the judges once they have been appointed. That the import of Article 98 (1) without the proviso is that any person appointed to the office of judge of Supreme Court or High Court should vacate that office upon attaining the age of 65. That in the Article, there are express exceptions to these general propositions on tenure and hence the use of the phrase 'subject to the provision of this Article ... ' According to Counsel, the Article qualifies or limits itself by providing that one may hold office beyond 561 the age of 65 or have their mandate terminated before reaching the age of 65. Counsel pointed out that Article 98 (2) provides for the removal of a judge from office and stipulates the procedure that is to be adopted. That another exception which is relevant to the circumstances of this appeal in respect of the first and second Respondents, is that under Article 98 (l)(a), a judge can be permitted by the President to continue in office to enable them deliver judgments or do any other thing in relation to proceedings that were commenced before them before they attained the age of retirement. Counsel argued that this is not a fresh mandate, but simply an extension of the original mandate and hence the use of the words 'permit' and 'to continue,; and neither is it an appointment but simply permission given by the President to a judge to continue in his office for a period in order to enable that judge to complete the work that accrued to him before his mandate expired upon attaining the age of sixty-five. He submitted that the decision of the President under this provision does not require 562 ratification by the National Assembly because it 1s not an appointment. Counsel contended that the position is different when it comes to Article 98( 1 )(b), under which the President appoints a judge to continue in office for such further period not exceeding seven years. It is the argument of Counsel that unlike in the case of the first exception under Article 98(l){b), this is a fresh appointment as opposed to permission to continue in office. He submitted that the operative words are 'appoint, and ~rther period not exceeding 7 years'. According to Counsel, the significance of this provision is that a judge who has vacated office upon reaching the retirement age of 65 is eligible for reappointment to judicial office by the President subject to ratification by the National Assembly as stipulated in Article 93. Mr. SANGWA submitted that there are two pools of candidates who are eligible to be appointed to high judicial office; those persons who are serving judges and are appointed under Article 98 (1) (b) and those who are below the age of 65, holding the qualifications stipulated in Article 97 and are appointed pursuant 563 to Article 93(2). He contended that any appointment by the President of someone who has met the qualifications in Article 97 or pursuant to Article 98 (l)(b), must be ratified by the National Assembly in accordance with 93 because under the constitutional arrangement, the President acting alone, has no authority to confer judicial authority on any one. Counsel further submitted that there is a difference in the qualifications set out in Article 97 and Article 98 (l)(b). That a person below the age of 65, who has met the qualifications set out in Article 97 is eligible for appointment to a judicial office pursuant to Article 93 (2). But that a person who has never held judicial office as a judge of the Supreme Court or High Court and who is above the age of 65, but otherwise qualifies under Article 97 is not eligible for appointment to judicial office. That Article· 98(l)(b} provides for a situation where a retired judicial officer can be appointed to a judicial office. It is the argument of Mr. SANGWA that Article 93(2) applies to all appointments without exception so that if any person has to assume the office of judge of the Supreme Court in whatever circumstances, his/her appointment must be 564 ratified by the National Assembly. According to Counsel, this interpretation of the Constitution is consistent with its foundational values and principles. He stated that one of the objectives, as determined by the MVUNGA Constitution Review Commission is to ensure separation of powers, checks and balances between the three organs of State. On this premise, Counsel submitted that the holding by the Court below, that the appointment of a judge under Article 98(l)(b) did not require ratification by the National Assembly went against the objectives of the Constitution and undermined the concept of separation of powers. That the holding of the Court gave the President absolute power to grant retired Judges of the High Court and Supreme Court a fresh judicial mandate thereby abolishing the National Assembly's power of veto in judicial appointments. He did not see any reason why, the appointment of judges meeting the qualifications in Article 97 should be subject to ratification, while those appointed under Article 98(1)(b) should not. He argued that the framers of the Constitution wanted the President to work in conjunction with the National Assembly when it came to the appointment of judges. 565 The learned Counsel for the Appellants also referred us to a portion of the judgment of the Court below appearing on pages 42 and 43 of the record of appeal, in which the Judge observed, inter alia, that ratification was necessary to ascertain the qualifications and competence of a candidate on first appointment to the High Court or Supreme Court. The Judge also stated: "when the National Assembly has satisfied itself that a particular candidate has sufficient qualities to be appointed to the respective post, it must be reasonably assumed that at the time of reappointment, he still has the same qualifications and other qualities and that in fact he will be more experienced than he was at the time he was first appointed ratified by the National Assembly ... " Counsel submitted that this statement by the Court had no regard to the historical facts leading to the formulation of Article 93 which requires ratification of all presidential judicial appointments by the National Assembly. That ratification gives effect to the separation of powers, checks and balances between the organs of government in the exercise of their respective powers. Counsel however argued that the assertion by the lower Court, that a judge who is up for reappointment will be more experienced than he was when he was first appointed, had no basis and defied logic and common sense. 566 According to Counsel, the Court, being a court of law, should have arrived at its decision on the basis of law and evidence before it and not to speculate on the interpretation of the Constitution. The learned Counsel for the Appellants also raised issue with the statement by the lower court that: " .... even if it was the intention of the people to ensure that the President should not have exclusive power of appointing judges, I still believe that the President is Head of State and he is expected to retain certain residual powers on reappointments. These are done simply to allow continuity in the office of the judge concerned and to minimize costs." According to Counsel, this statement by the Judge is dangerous because a judge's belief has no place in the construction of the constitution. He submitted that by the statement, the court in effect conferred powers on the President that were not provided for in the Constitution, thereby ignoring Article 1 (2) of the Constitution which provides that: "All power resides in the people who shall exercise their sovereignty through the democratic institutions of State in accordance with this Constitution." Counsel submitted that the issue of continuity and saving costs, does not equally arise because every judicial officer ought to know 567 that once appointed, their mandate will expire upon the attainment of the age of 65. On the observation by the judge that upon reappointment for a further period not exceeding 7 years, the President will reappoint a judge whose curriculum vitae has been accepted by the National Assembly as being suitable for the position, the learned Counsel for the Appellant submitted that this statement was unfounded because the curriculum vitae in question would be of the candidate when he was first appointed and met the qualifications in Article 97; that the National Assembly has no record of how well the retired judge performed up to the time he retired. That such information would only be available if Article 93 (2) were to be complied with. On the view by the Judge that a reappointment takes care of the possibility of a gap being created in the judge's duties and that subjecting a retired judge to ratification would imply incompetence, lack of qualification and failure on the part of such judge, Counsel submitted that the issue of a gap being created does not rise because the Constitution does not guarantee a judicial officer office after retirement. That the obligation of a judge to perform his 568 duties expires upon attainment of 65 years. He contended that the constitutional requirement of ratification was designed to guarantee transparency and accountability of the judiciary. On the observation by the Judge, that the fact that Article 98 did not envisage ratification could be discerned from the fact that the said Article together with Article 99 do not apply to the Chairman and Vice Chairman of the Industrial Relations Court who by law, do not require ratification on first appointment; Counsel submitted that Article 98 has to be read together or in harmony with Article 93(1). He submitted that a constitutional provision cannot be construed in such a way as to undermine or destroy the other. That the positions of Chairman and Vice Chairman of the Industrial Relations Court do not require ratification because they are governed by Article 95(2) which does not provide for ratification. That the two judicial officers are appointed by the President on the advice of the Judicial Service commission. Counsel further submitted that it is not equally correct for the Court below to have held that the provisions of Articles 98 and 99 do not apply to the Chairman and Vice Chairman of the Industrial Relations Court 569 because Article 95 (3) specifically provides that the provisions of the these two articles shall, with the necessary modification apply to the Chairman and Vice Chairman of the Industrial Relations Court. He stated further that there is no provision in the current Constitution that governs the appointment of the Chairman and Vice Chairman of the Industrial Relations Court which supports the proposition that the appointment of a judge pursuant to 98(1) does not require ratification by the National Assembly. On Article 99, Counsel submitted that this provision provides that a judge of the Supreme Court or High court shall not enter upon the duties of his office unless he has taken and subscribed to an oath of allegiance. It has a proviso which stipulates that " .... a person who has once taken and subscribed to the said oaths may enter upon the duties of any such office without again taking and subscribing such oaths." Counsel drew an analogy between this Article and Article 98 (l)(b) and submitted that unlike in the case of Article 99, which qualifies the general proposition requiring a judge to take an oath of office before executing the duties of his office, Article 98 (l)(b) has no similar provision 570 exempting those who had already been ratified from being ratified upon reappointment. He submitted that had the 1st and 2nd Respondents been ratified, they would have assumed office immediately without subscribing to an oath of allegiance as they had already done so. He argued that if the framers of the Constitution wanted to exempt from ratification by the National Assembly, persons appointed pursuant to Article 98(1)(b), they would have made an express provision to that effect in the Constitution just as they have done in relation to the taking of an oath of allegiance. Counsel contended that ratification of appointments by the National Assembly was specifically demanded by the people in order to secure the independence of the Judiciary. In his view, a judge who has been ratified by the National Assembly will not owe allegiance to the President or the National Assembly but to the Cons ti tu tion and the law, as stipulated in Article 91 ( 1 )(2). That ratification by national Assembly is the only way of ensuring that a person appointed as a Judge is suitable for the job. According to Counsel, the appointment of the 1st and 2 nd Respondents is 571 shrouded in secrecy in that it is no known when they were appointed; the period they were expected to served; the reasons why the President deemed it necessary to appoint them; and, who initiated the process. The learned Counsel for the Appellant also submitted at length on Article 138 of the Constitution. This Article provides:- "Where any person vacated any office established by this Constitution, he may if qualified, be appointed or elected again to hold that office in accordance with the provisions of this Constitution." Counsel submitted that the 1st and 2 nd Respondents held offices that were created by the Constitution and they vacated their offices upon reaching the age of 65. That Article 98 (l)(b) makes them eligible for reappointment despite reaching 65 for periods not exceeding 7 years. That under the provisions of Article 138, the Respondents could be appointed again to the same offices but they have to follow the procedure that is laid down in the Constitution governing their appointment. In case of judges, he argued, there is only one procedure and this is outlined in Article 93 of the Constitution; which is that the President has to appoint and the National Assembly has to ratify the appointment. Counsel 572 submitted that the holding by the Court below, that the appointment by the President under Article 98(l)(b) does not require ratification, negates the provisions of Article 93(2) and Article 138( 1). That one provision of the Constitution cannot be construed in such a way as to undermine other provisions of the Constitution because all the provisions have to be construed in harmony with each other. He went on to state that the holding by the Court also undermined the foundational values and principles of accountability and transparency in the appointment of judicial officers. On the interpretation given by the Court to Article 138(1) of the Constitution that the words "in accordance with the provisions of this Constitution" should be read within the ambit of Article 98, as that is the Article which is relevant on reappointment of judges, Counsel maintained that the procedure for appointing persons to judicial office is the one stipulated in Article 93(2) and should have been applied to the 1st and 2 nd Respondents. He stated that the provisions of Article 138(1) are of general application in that they apply to all instances in cases 573 where a provision allows any officer to occupy the same office once his initial mandate has expired. According to Counsel, the words "to be appointed again" to hold that office in accordance with the provision of the Constitution, do not mean in accordance with Article 98(1)(b), but in accordance with the provisions of Article 93(2). Counsel submitted that Article 98(1)(b) provides an exception to the general proposition that a judicial officer's mandate expires upon attaining the age of 65 by providing that one can still get another term not exceeding seven years, and the procedure to secure this appointment is that outlined in Article 93(2), which requires ratification by the National Assembly. He argued that ratification is crucial for the independence and integrity of the Judiciary as it enhances public confidence in judges and ultimately in the judicial system. Counsel found no logic as to why a person who qualifies to be appointed as a judge under Article 93 of the Constitution would need to be ratified, while the one who qualifies under Article 98 ( 1) {b) would not. 574 The learned Counsel for the Appellants drew an analogy between the provisions in our Constitution on the reappointment of judges and the provisions in the Constitution of Uganda on the reappointment of the Government Inspector General and Deputy Inspector General. The Constitution of Uganda provides, in Article 253, that a person who has vacated an office established by the Constitution may be re-appointed or hold that office "in accordance with the provisions of this Constitution." The Inspector General of Government and his deputy are appointed by the President with the approval of Parliament. There is a provision in Article 22 (3) that the Inspector General of Government and his deputy shall hold office for a term of four years but shall be eligible for reappointment only once. In the case of DHIKUSOOKA MAJIDU & 21 OTHERS VS ATTORNEY-GENEAL20 , the Constitutional Court of Uganda was called upon to decide whether the second appointment of the said officers needed Parliamentary approval. The court found, after considering the relevant provisions of the Constitution, that parliamentary approval was a constitutional requirement under 575 Article 22(3) of the Constitution if the said officers were to serve a second term. It observed that "to hold otherwise we would be strongly at variance with the spirit of the Constitution." The learned Counsel for the Appellant submitted that similarly in the case now before us, ratification by the National Assembly was necessary for the reappointment of the 1st and 2 nd Respondents for them to occupy and discharge the functions of Judge of Supreme Court under the provisions of Article 98( 1 )(b) of the Constitution. In response to the submissions on behalf of the Appellants under Part Two 1 the learned Counsel for the Respondents submitted that the gist of the Appellants' argument under this part is that the Court below wrongly answered the question as to whether on reappointment, a Judge of the High Court or Supreme Court requires ratification by the National Assembly. They also argued all the eleven grounds of appeal together. In their arguments, Counsel formulated two questions for the resolution of this Court. The first one was whether the Constitution of the Republic of Zambia requires the reappointment of a judge of the High Court or Supreme Court by the President to be subjected 576 to ratification by the National Assembly. The second question was; what is the purpose of ratification of judicial appointments. In answer to the first question, the learned Counsel for the Respondents submitted that there appears to be no dispute as regards the need for ratification of judges of the High Court and Supreme Court upon first appointment to such office. These are appointments that are made pursuant to Article 93 of the Constitution. Counsel submitted that the thorny issue taking centre stage 1n this constitutional controversy is on the reappointment of the same judge upon attaining the age of 65 years. Should such a reappointment be subjected to a second ratification process? Counsel for the Respondents submitted that reappointments to the office of the Judge of the High Court or Supreme Court after attaining the age of 65 years is provided for in Article 98 of the Constitution. According to Counsel, the issue in difference arises out of the fact that while the Appellants are of the view that upon reappointment, a judge should be subject to the provisions of Article 93 and therefore undergo a further process of ratification; 577 the view of the Respondents is that on reappointment no such ratification is required. Counsel referred us to the case of ATTORNEY-GENERAL AND MOVEMENT FOR MULTIPARTY DEMOCRACY VS AKASHAMBATWA MBIKUSITA LEWANIKA AND OTHERS7 in which a constitutional provision fell to be interpreted by the High Court. Counsel submitted that the High Court took refuge in the literal interpretation of the relevant clauses of the Constitution, but on appeal, this Court found that the use by the learned High Court Judge of literal interpretation was sound and correct. That the Court went on to take cognisance of the trend by other courts to adopt a purposive approach in order to promote the general legislative purpose underlining the provisions. That where a statute or constitutional provision is clear and unambiguous, the literal interpretation should be utilized. According to Counsel, Article 98 ( 1) of the Constitution is so clear and unmistakable in its framing that it is not capable of more than one meaning. That on account of this fact, it qualifies to be construed in line with the literal interpretation. 578 Counsel further submitted that it is normal for legislation to be expressed to be subject to either another Section or Article within the same legislation or a totally different piece of legislation. That for Article 98(1), the framers of the Constitution explicitly expressed it to be subject to itself. Counsel argued that it would have been easy for Article 98 ( 1) to have been expressed to be subject to the provisions of Article 93 (1) of the Constitution, but that that was not what was intended by the framers of the Constitution. According to Counsel, what flows from this argument is that the President may reappoint judges who were initially appointed and ratified by parliament without the requirement of further ratification. On the reference to the case of DHIKUSOOKA MAJIDU & 21 OTHERS VS THE ATTORNEY-GENERAL,20 the learned Counsel for the Respondents submitted that this case is distinguishable from the case at hand. That while the Petitioners in the Uganda case petitioned on the issue as to whether the reappointment of the Government Inspector General and his deputy, required parliamentary approval for them to serve a second term of office 579 under Article 22 (3) (7) of the Constitution of Uganda, there was no separate clause in the Ugandan Constitution on the reappointment of the Investigator General of the Government. That reappointments in that case were caught by the umbrella clause which stated that all reappointments are subject to the provisions of the Constitution. That in the case of the Constitution of Zambia, on the other hand, there is a separate and distinct provision, Article 98 ( 1 )(b), on reappointments of Judges and it vests power in the President alone to make the appointments. Counsel referred to Article 138(1) of the Constitution which allows a person vacating an office established by the Constitution to be appointed or elected again if they qualified in accordance with the provisions of the Constitution. Counsel agreed with the learned trial Judge that Article 98( 1 )(b) specifically provides for the reappointment of Judges and in accordance with Article 138(1), such reappointments are subject to that Article. Counsel also agreed with learned trial Judge that the Uganda case did not deal with appointment to judicial office. 580 Coming to the second question, which was on the purpose of ratification of judicial appointments; Counsel submitted that it is clear from the relevant provisions of the law that on reappointment, a Judge does not require any ratification. That ratification is essentially an interviewing process. In this respect, they referred to the report of the Parliamentary Select Committee that was appointed to scrutinize the presidential appointment of one of the Commissioners at the Electoral Commission of Zambia in which after receiving submissions from various stake holders, the Committee found that the nominee was eminently qualified for the position. Counsel submitted that it is very clear from the report of the Select Committee, that the National Assembly considered qualifications, competence and character of the candidate. They contended that even with regard to judges, nominees must possess qualifications stipulated in Article 97 of the Constitution. In their view, the learned trial Judge was correct to state that none of the qualifications to become a Judge would change at the time of reappointment but that they would in fact be enhanced. 581 Counsel submitted further that the Appellants' concerns appear to be that a judge may become "a bad apple" after appointment. They argued that such a rare eventuality is well catered for under Article 98 (2) of the Constitution which sets out the procedure through which a serving judge may be removed from office. On the views expressed by Counsel for the Appellant that the Court should have taken into account the views of the past Constitutional Review Commission when considering the reason for the inclusion of the provision for ratification of the appointment of Judges in Article 93 of the Constitution, the learned Counsel for the Respondents submitted that the said Commission was not a law making body as envisioned by the various authorities on Constitutional interpretation. It is their view that the learned judge in the Court below correctly found that the reappointment of a Judge of the High Court or Supreme Court does not require ratification. We have considered the very eloquent and spirited arguments that have been advanced by the parties on the eleven grounds of 582 appeal in Part two. We will deal with all the grounds of appeal together. The main contention in this Part and indeed the contention on which this whole appeal is anchored is the reappointment of the 1st and 2 nd Respondents to the offices which they held upon reaching the retirement age of 65 years. The learned Counsel for the Appellant has outlined the history of the mode of appointment of judges of the Zambian superior courts from the 19th century up to date. This expose has shown that the mode of appointment and even the retirement age has been changing from time to time. Counsel has shown that up to 1991, only High Court judges were permitted an extension to finish pending work. There was no similar provision for Supreme Court Judges. The current Constitution allows the President to permit High Court and Supreme Court judges under Article 98(1)(a) to continue in office in order to finish pending work. In Article 98(l)(b), the President is allowed to appoint a High Court or Supreme Court judge for a further term of up to 7 years in the office 583 that the judge holds upon retirement. It is this latter appointment which is now in contention. The learned Counsel for the Appellants has contended that the Court below ignored the rich history of the process of appointing judges and that this was a serious dereliction of duty on its part. To buttress his position, he has relied on the case of S VS MAKONYANE & ANOTHER20 in which CHASKALSON J expressed the view that the background to the South African Constitution, that is, the multi-party negotiation process, could provide a context for interpreting the Constitution. CHASKALSON J cited the United States, Canada and the Germany as some of the jurisdictions where legislative history is resorted to when interpreting provisions of a Constitution. We have no doubt that the history of the making of a Constitution can provide valuable insight as to the intention of the framers of the document. In most processes of constitution making, the debates and negotiations of what is to be contained in the constitution is done outside the legislature; usually in a wider and more representative body. Upon completion of the discussion, 584 the resultant document is then presented to parliament for the legislative seal to usher it into law. We agree with the sentiments of CHASKALSON J, in the case of S VS MAKONYANE to the extent that when faced with the interpretation of ambiguous provisions of a constitution, a Court can resort to the legislative history of the provisions in order to decipher the meaning and intention of the framers of the Constitution when they came up with the provisions. The record of appeal shows that the learned Counsel for the Appellants gave a detailed submission to the lower court in which he recounted the origins of the constitutional provisions governing the appointment of judges of the superior courts in Zambia. The Judge stated however, on page 38 of the record of appeal that '~ .... No inference should be drawn from legislative history where all the provisions, as in this case, are expressed or incorporated in one document namely, the Constitution." In our view, this statement by the learned trial Judge may be found wanting where there is ambiguity and the question to be resolved does not fit into the straight jacket of the Constitutional provisions. As we have stated above, the Court may have to resort to the 585 legislative history to understand the spirit and intention of the framers of the Constitution when they came up with the provisions. The Judge, in this case, however found no ambiguity in the provisions in issue. He stated that "the provisions of Article 93 and Article 98 are very clear.'' He also found that the ''two Articles are not in any way in conflict." As has been alluded to under Part One, where provisions of the Constitution are clear and unambiguous, they must be given their ordinary meaning unless this would lead to absurdity. In the case of AKASHAMBATWA MBIKUSITA LEWANIKA, we encouraged a purposive approach to interpreting provisions of a Constitution where the 'strict and literal interpretation of a statute gives rise to an unreasonable and an unjust situation. ' It is clear to us that the learned trial Judge did not find any absurdity or an unreasonable or an unjust outcome from his interpretation of the provisions in question. We consequently do not agree with Mr. SANGWA, that there was any dereliction of duty on his part. Another contention by the Appellant under Part Two is that the Court narrowly construed Article 98 ( 1 )(b} of the Constitution. 586 It is contended that the said Article should have been construed in the context of all the relevant provisions on the subject matter, namely, Articles 93, 95, 99 and 138. Our perusal of the judgment of the lower Court from page J 16 shows that in trying to ascertain the parameters of Article 98(1)(b), the learned trial Judge actually considered other Articles on the subject matter. He referred to Articles 93, 95, 99 and 138. The Judge also specifically addressed his mind to the contention by the Appellants that the power of the President to appoint a Judge for a further term under Article 98(1)(b) should be considered in the context of the provisions of Article 93 on the issue of ratification. In our view, it is therefore not correct to state that the Judge narrowly construed Article 98 (1) (b). The learned Counsel for the Appellant further contended that the Court below misdirected itself on a point of law and fact when it stated, on page 27 of the record of appeal that on first appointment, the Chief Justice, Deputy Chief Justice and Judges of the Supreme Court and the High Court, ratification is required. Counsel also submitted that the Court also misdirected itself when it held that Article 93 specifically provided for new appointments. 587 On page 27 of the record of appeal, the Judge did state that "it is common ground that on first appointment of the Chief Justice and Deputy Chief Justice and Judges of the Supreme Court under Article 93 and of the Judges of the High Court under Article 95, ratification by the National assembly is required." This statement, on its own cannot amount to a misdirection. Anyone who is appointed as a Judge under Articles 93 and 95 for the first time, must be ratified by the National Assembly. But the Court went further to state on page 40 of the record of appeal that Article 93 provides specifically for new appointments. The question resolved therefore is whether all appointments under this Article have to be maiden appointments. It is trite and we have accepted that all relevant provisions of a Constitution relating to the same subject must be considered. When it comes to appointment of Judges, Article 93 is on the appointment of Supreme Court Judges while Article 95 is on the appointment of High Court Judges, the Chairman and Deputy Chairman of the Industrial Relations Court. Article 97 outlines the qualifications of those to be appointed under Article 93 and 95. 588 Article 98 provides for the tenure of office for those Judges appointed under Articles 93 and 95. It stipulates in sub-Article 1 that the persons so appointed shall vacate office at the age of 65 years. There is a proviso allowing Judges to go beyond 65 years of age to complete pending work or to be appointed for a further appointment for a period not exceeding seven years. The same Article 98 contains provisions governing removal of judge from office. This is the whole picture of the appointment, holding of office and vacating of office by a Judge. Is it conceivable that a person who has been appointed as judge under Articles 93 or 95 can leave office before attaining the age of 65 and be reappointed? This is the implication of the argument being advanced by Mr. SANGWA. To hold that Article 93 is not necessarily for maiden appointments is to imply that one could leave the office of Judge before attaining the age of 65 as provided in Article 98 and be given a fresh appointment only to vacate office upon reaching the retirement age. We have stated above, that a constitution is not only for the present time, but also for the future; that it is capable of being 589 stretched and having different meanings at different times with each meaning being correct for its time; and hence the need for a broad interpretation. In our view, it would not be farfetched that a situation may arise that a Judge who left judicial office before the age of 65, for example through resignation, could be persuaded to accept a fresh appointment on the bench. Such an appointment can only be made under Articles 93 or 95 of the Constitution. The provisions of Article 98 will only come in to play to require such a person to vacate office at the age of 65 years. The Presidential re appointment under Article 98(1)(b) can only be invoked in respect of a judge who has reached the age of 65 to continue in the office in which they were ratified. From the foregoing, we agree with Mr. SANGWA and hold that the interpretation of Article 93 should not be restricted to maiden appointments. We find that it was a misdirection for the trial Judge to have stated that Article 93 is only for maiden appointments. As stated above the main contention in this appeal is the interpretation of Article 98(1)(b). We agree with Mr. SANGWA that there are only two pools of candidates who are eligible for 590 appointment to high judicial office; those appointed to the Supreme Court or the High Court under Articles 93 or 95 respectively and meeting the qualifications stipulated in Article 97; and retired judges who are appointed pursuant to Article 98(l)(b). As stated above, the latter essentially continue in the judicial office in which they had been ratified prior to retirement. The contention by the Appellant is that even this appointment to continue in the same office must be ratified. Mr. SANGWA's argument is that we are in a democracy anchored on the separation of powers, checks and balances between the organs of State. That under the Constitutional arrangement, the President, acting alone, has no authority to confer judicial authority to anyone. The learned Counsel for the Appellant in his argument has brought in Article 99, which exempts a Judge, who has already taken an oath of office from taking another oath. He has argued that likewise, if the framers of the Constitution had intended to exempt appointments under Article 98( 1 )(b) from the requirement of ratification, they would have expressly stated so. Counsel has also referred to Article 138 which provides inter alia, that a person who 591 vacates an office established by the Constitution, may, if qualified, be appointed again to the same office in accordance with the provisions of the Constitution. Counsel has argued that in case of Supreme Court Judges, there is only one procedure and this is outlined in Article 93. He contended that this procedure should have been applied to the 1st and 2 nd Respondents. According to Counsel, one provision of the Constitution cannot be construed in such a way as to undermine other provisions. In dealing with the arguments raised by Counsel, the learned trial Judge found that the provisions of Article 98 were very clear and not in any way ambiguous. He accepted the submission of the Respondent that Articles 93 and 98 should be interpreted separately. That if the framers of the Constitution had intended that there be a process of ratification upon the reappointment of a judge under Article 93, they could have expressly stated so or subjected Article 98 to Article 93. To illustrate the point, they referred to, among others, Article 64 of the Constitution which commences with the words "subject to Article 65." 592 The learned trial Judge observed that Article 98 starts with the words, "subject to the provisions of this Article ... " According to the Judge, these words were not accidental or casual but were carefully chosen by the framers of the Constitution to deal with the two issues in the proviso to Article 98( 1}; that is, empower the President to extend the tenure of a Judge to finish pending work or to extend the judge's appointment for a further period not exceeding seven years. In his view, it could not, by any stretch of imagination be argued that such an appointment must be subject to ratification. The question to be resolved is whether the provisions of Article 98 can be said to be ambiguous and not in harmony with the other provisions on the subject. Can the intention of the framers of the document be derived from the express words that have been used in the Article? As we have alluded to above, we are dealing with constitutional . . prov1s1ons. All the relevant . . prov1s1ons that pronounce an appointment and reappointment of judges must be brought into focus and harmony. We agree with Mr. SANGWA that our constitutional democracy is anchored on separation of powers, checks and balances between 593 the organs of state. The limits of such checks and balances must be gleaned from the document itself. We have already noted above that appointments to the superior bench are done under Articles 93 and 95. The persons so appointed must possess qualifications stipulated in Article 97. Article 98 comes in to provide for the tenure of the Judges; that is that the persons so appointed must vacate office upon attaining the age of 65. They can be removed from office before attaining the age of 65 in accordance with the procedure outlined in Article 98(2)(3)(4) and (5). Under Article 98 ( 1 )(b), the President can appoint a judge for a further period of seven years. The appointment is to an office to which the judge was earlier ratified before they reached retirement age. This appointment is seemingly without any reference to another process of ratification by the National Assembly. The Appellants have spiritedly argued that such an appointment is caught by the provisions of Article 93. Article 98(1) opens with the words c'subject to the provisions of this Article ... " It was demonstrated in the Court below that there are other provisions in the Constitution which have been 594 made subject to a different article. Article 64 is couched 'subject to Article 65". Article 80(1) refers to Article 62. Indeed Article 98 (6) itself refers to Article 96 when it comes to acting appointments of judges. Can it therefore be seriously argued that the framers of the Constitution inadvertently forgot to bring the provisions of Article 93 on ratification into Article 98 (l)(b)? We do not get that impression. In Articles that were intended to be subjected to other provisions, there has been an express statement to that effect. The clear intention of the framers of these provisions to us is that they intended to give absolute discretion to the President to decide whether to retain a judge who was earlier ratified in their position to continue in office for a further period not exceeding seven years. Had the intention been otherwise, Article 98(1)(b) would have been made subject to Articles 93 and 95 as has been done in the other Articles. We therefore cannot fault the trial Judge for concluding that the words 'subject to the provisions of this Article' were not accidental or casual but carefully chosen to deal with re appointments as provided for in Article 98(1), which appointments are different from those provided for in Article 93. Those 595 appointments under Article 98 (l)(b)are of persons who have already been ratified for the positions in which they are reappointed. We also agree with the trial Judge that the provisions of Article 138( 1) should be read within the ambit of Article 98 because that is that provision that specifically deals with the question of reappointment of judges. It is our considered view that it was not the intention of the framers of the Constitution that on reappointment under Article 98(l)(b), a judge should go through another process of ratification. Such a reappointment is at the exclusive pleasure of the President. We are mindful that a lot can be said for and against such unfettered powers of the President, but the preferred situation can only be attained by an amendment to the provision. The learned Counsel for the Appellants expressed reservations on a number of comments that were made by the Judge in his judgment. Among these were the observation by the Judge that the President is the Head of State and is therefore expected to retain residual powers on reappointments to allow continuity and 596 minimise on costs; that on reappointment, a judge's curriculum vitae would already have been accepted by the National Assembly as being suitable; that subjecting a retired judge to ratification would imply incompetence, lack of qualification and failure on the part of the judge; and, the reference by the Judge to the provisions of the law which do not require ratification for the office of Chairman and Vice Chairman of the Industrial Relations Court. In our view, most of these observations by the Judge were obiter dicta and did not form part of ratio decidendi of the case. The main contention was on the import of Article 98(1)(b); whether the Presidential appointment under the said Article required ratification. The Judge found the Article to be clear, self contained and unambiguous. We have upheld his finding. Other than the second ground of appeal, we find no merit in all the other grounds of appeal. PART3 Part three relates to the preliminary issue raised on behalf of the Respondents. That is, whether, as judges, the 1st and 2 n d Respondents are liable to be sued for actions taken, things done or 597 omitted to be done by them in the discharge of their functions, or alternatively; whether the first and second Respondents are the right parties to be sued. There are two grounds of appeal that have been advanced under this part. The first ground of appeal is that the Court below misdirected itself on a point of law and fact when it held that the motive behind the petition was to demoralize, embarrass and demean the honourable judges and that it amounted to vexation; and that the court 'takes umbrage at such conduct.' The second ground of appeal is that the court below misdirected itself on a point of law when it held that the 1s t and 2 nd Respondents cannot be sued in their personal capacity, neither can the Attorney-General be sued vicariously for their decision in dismissing the Petitioners' appeal. In support of these grounds of appeal the learned Counsel for the Appellants submitted that no evidence was led in the Court below to suggest that the Petitioners had moved the lower court simply to demoralize, embarrass and demean the 1st and 2 nd Respondents. According to Counsel, this accusation demonstrates that the court below misdirected itself on the import of Article 598 1 (3)(4) of the Constitution. He argued that the Constitution, as Supreme law of the land, binds all persons in the Republic and all legislative and executive judicial organs of the State at all levels. That the pronouncement by the Court encapsulates the fundamental values and principles of the Constitution that the 1st and 2 nd Respondents, as judicial officers exercising the adjudicative power of the Republic, have a duty to scrupulously adhere to the provisions of the Constitution. The learned Counsel for the Appellants further submitted that moving the court by way of petition, contending that the two Respondents violated Article 93 (2) of the Constitution by assuming judicial offices without ratification by the National Assembly cannot be designed to embarrass and demean them. Counsel contended that every person in Zambia is subject to the Constitution as the supreme law of the land. To this effect, he referred us to the words of MUSUMALI JS in the case of MWAMBA & ANOTHER VS THE ATTORNEY-GENERAL2 ' where the Judge stated, inter alia, that: "my firm belief is that a citizen has a right to sue on constitutional issues unless the constitution itself explicitly or by necessary implication has taken away that liberty .... " 599 The learned Counsel for the Appellants submitted that it was in fact the Court below that demeaned the Petitioners with this allegation. That the only viable consideration in this case is whether the Petitioners had locus standi in the matter. That the Petitioners were entitled to a free and fair trial as guaranteed by Article 18(9) of the Constitution and the said right was violated against them because the appointments of the two Respondents were not ratified by National Assembly and that consequently, the Court that heard and determined their appeal was not a court within the meaning of Article 18(9) of the Constitution. Counsel again relied on the words of MUSUMALI, JS in the same case of MWAMBA VS ATTORNEY GENERAL"' when he said: "There may be provisions in the Constitution where only such firmly interested persons may sue on them. In the absence of such provisions in respect of constitutional provisions, a citizen has the liberty to come to the High Court and on appeal to this Court and seek redress .... '' Counsel also submitted that the lower Court misdirected itself when it suggested that the Petition by the Petitioners was vexatious. According to Counsel, this contention was never raised by the Respondent. 600 The second ground of appeal is centred on the question as to whether the first and second Respondents could be sued in their individual capacity. The learned Counsel for the Appellant submitted that the Court misdirected itself on a point of law when it held that the two Respondents could not be sued in their personal capacities and neither could the Attorney-General be sued vicariously for the action of the Respondents to dismiss the Petitioners' appeal. Counsel submitted that a constitutional petition is not a suit. The Petitioners had called upon the High Court to exercise its power of review conferred on it by Article 94( 1) of the Constitution. They asked the Court to look at the constitutionality of the occupation and performance of duties in the office of Judge of the Supreme Court by the 1st and 2 nd Respondents after retirement, without their appointment being ratified by the National Assembly, as provided in Article 93(2) of the Constitution. Counsel submitted that given the provisions of Article 1 (4) of the Constitution, no one is exempt from its binding effect. The 1st and 2 nd Respondents being public officers, their actions in relation to their constitutional 601 offices that they occupy are amenable to judicial review. The said Article 1(4) of the Constitution states: "This Constitution shall bind all persons in the Republic of Zambia and all legislative, Executive and Judicial organs of State, at all levels." According to Counsel, the holding that the petition against the 1st and 2 nd Respondents was wrong suggests that their actions are not reviewable by courts to ensure that they comply with the provisions of the Constitution. He contended that such a suggestion had no cons ti tu tional foundation. Counsel further submitted that in holding that the 1st and 2°d Respondent cannot be sued, the lower Court relied on the provisions of the STATE PROCEEDINGS ACT4 • He argued that the provisions of this Act cannot override the provisions of the Constitution and that there is nothing in the Constitution which suggests that the action of the 1st and 2 nd Respondents either in their official or personal capacities cannot be reviewed by the Court. According to Counsel, the court has power of review under in Article 139(10) of the Constitution. This Article reads: "Provisions of this Constitution that any person or authority shall not be subject to the direction or control of any other person or 602 authority in the exercise of any functions under this Constitution shall not be construed as precluding a court of law from exercising jurisdiction in relation to any question whether that person or authority has performed those functions in accordance with this Constitution or any other law." Counsel consequently submitted that no prov1s1ons of the State Proceedings Act can be construed so as to undermine the court's power of review but can only be construed in a manner that is consistent with the provisions of the Constitution. He went on to state that the petition in this case is not a challenge of judicial decisions of the 1st and 2nd Respondents, but the constitutionality of their occupation of the office of judge of the Supreme Court after their retirement, without ratification by the National Assembly. Counsel contended that the two Respondents are the right parties to these proceedings. That since they are likely to be affected by the outcome of the proceedings, they should be given an opportunity to be heard. Counsel submitted that this point was canvassed by NGULUBE CJ in the majority opinion of this Court in the case of MWAMBA & ANOTHER VS THE ATTORNEY~GENERAL3 ' in which the appointment of ministers was challenged. The ministers were not parties to the case. NGULUBE, CJ observed: 603 ''Although the motion ostensibly questioned whether there was dignity and leadership in the exercise by the President of his Constitutional power to appoint the two Ministers, the blows were landing on the two individuals who have never been heard and who stood to be condemned unheard and stripped of office." Counsel submitted that the decision of the lower Court on the whole, has no foundation at all and should, therefore, not stand. He urged us to allow the appeal and set aside the judgment of the Court below and direct that:- a) The appointment of the 1st and 2 nd Respondent by the President not having been ratified by National Assembly, the occupation and performance of the functions of the office of Judge of the Supreme Court were ultra vires Article 93(2) of the Constitution and hence null and void; b) That the hearing of the Petitioners' appeal on 2 nd June 2009 and delivery of judgment on 9 th July 2009 by a panel consisting of thelst and 2nd Respondents and Madam Justice CHIBOMBA was ultra vires Article 18(9) of the Constitution because the panel did not constitute a court established by law and was therefore null and void. c) That the appointments by the President of the 1st and 2nd Respondents as Judges of the Supreme Court not having been ratified by National Assembly, the hearing of the appeal aforesaid on 2nd June 2009 and delivery of judgment on 9 th July 2009 was ultra vires Article 18(9) of the Constitution in that the said panel was not independent and impartial, and hence null and void; d) That the 1st and 2nd Respondents should vacate the office of Judge of the Supreme Court. 604 In response to the submission of the Appellants in Part three, the learned Counsel for the Respondents dealt with each ground of appeal separately. On the first ground of appeal, Counsel found it intriguing, that the Appellant would have this Court believe that the Court below made its pronouncements devoid of any basis. Counsel submitted that prior to the filing of the petition 1n the Court below, the Petitioners had challenged the decision of the magistrate putting them on their defence in a criminal matter where the Appellants were standing trial. That when the Magistrate ruled against them, they appealed to a judge of the High Court who rejected their appeal, giving rise to an appeal to this Court. That a panel of this Court comprised partly of the 1st and 2nd Respondents determined their appeal. According to Counsel, it is curious that the Appellants acceded to the jurisdiction of the Supreme Court and only cried foul after the Supreme Court had handed down its judgment rejecting their appeal. That it was at that point that the Appellants claimed that the Court that heard their appeal was improperly constituted and hence the petition in this case. Counsel referred us to the observation of the lower court on page J 51 that: 605 "I note that in this matter, the Petitioners took out this petition after they lost their appeal. Clearly, the motive was to demoralize, embarrass and demean the Hon. Judges and amounts to vexation. The court take umbrage at such conduct. It holds grave doubts that the Petitioners would have sued the first and second Respondents if their appeal to the High Court had succeeded." The learned Counsel for the Respondents submitted that with the knowledge of facts prior to the presentation of the petition, which facts have not been disputed, the Court was entitled to formulate its opinion as to the reason why the Appellants acted in the manner that they did. Counsel argued that even if it was to be assumed that the Court below had no footing for the pronouncements it made, the decision of the Court in so far as it relates to the issues raised under Parts One, Two and the remainder of Part three, would not be affected. Submitting in response to the 2 nd ground of appeal, the learned Counsel for the Respondents, stated that the Appellants were seeking to rely on the procedure utilized during judicial review proceedings. This, in their view, is inappropriate and wrong at law. That notwithstanding the provisions of the STATE PROCEEDINGS ACT4 and the provisions of Article 138 (10), the argument of the 606 first and second Respondents is that they enjoy the protection of the law from actions such as the one commenced by the Appellants. Counsel went on to state that the Court below was correct to refer to three foreign cases and one local case when determining whether judges may be sued for judicial acts done in office. According to Counsel, all these authorities say that a judge cannot be sued in their personal capacity for acts done in their exercise of the official function. They submitted that the Court below was correct when it found that on a proper construction of Section 4(5) of the STATE PROCEEDING ACT4, the Attorney-General cannot be sued vicariously for the Judges' decision in dismissing the Petitioner's appeal to the Supreme Court. On the reference by the Appellants to the dicta of MUSUMALI, JS in the case of MWAMBA VS THE ATTORNEY-GENERAL"' Counsel stated that the learned trial Judge was correct to cite various authorities which support the position expressed by MUSUMALI JS. According to Counsel, the only exception to judicial privilege as stated in the case of SIRROS VS MOORE AND OTHERSaa (cited by the Judge in the Court below) may be where the 607 Judge "exercises his jurisdiction from malicious motives and has been guilty of gross dereliction of duty." According to Counsel, this has not been argued in this case and the Court below was therefore correct to call the Appellants' action frivolous and vexatious. They urged us to dismiss this ground of appeal. It is the position of Counsel for the Respondents that the judge 1n the Court below considered all the relevant authorities before coming to his decision. He decided that upon reappointment, under Article 98 ( 1 )(b) of the Constitution, Supreme Court and High Court Judges do not require ratification of the National Assembly. The Judge also found that the said Judges cannot be sued in their own personal capacities for acts done in the performance of their duties. Counsel urged us not to disturb the judgment of the court below but to dismiss this appeal with costs to the Respondents. We have considered the submissions of the parties on the grounds of appeal in part three. The first ground contends with the remarks of the trial Judge that the Appellants' petition was vexatious and that it was aimed at embarrassing, demoralizing and demeaning the 1st and 2 nd Respondents. The argument of the 608 Appellants in the main 1s that they have a constitutional right to come to Court to seek redress and litigate on constitutional issues; that if anyone was demeaned by the allegation, it was themselves. The response by the Respondents is that the pronouncement by the lower Court was not devoid of any basis. This is a matter that started in the Magistrates Court and went on appeal to the High Court where a further appeal was made to this Court. That the Appellants submitted to the jurisdiction of the Court and only cried foul after losing their appeal. In our view, the context 1n which the Court made the pronouncements complained against is crucial. The Judge said: "I note that in this matter the Petitioners took out this Petition after they lost their appeal. Clearly, the motive was to demoralize, embarrass and demean the honorable judges and amounts to vexation. The Court takes umbrage at such conduct. It holds grave doubts that the Petitioners would have sued the tst and 2 nd Respondents if their appeal to the Supreme Court had succeeded.'' There is nothing in this passage to suggest that the Appellants had no right of recourse to courts of law or indeed that their actions are not reviewable by the courts. The Judge's remarks are anchored on the fact that the Appellants only took out their petition after they had lost their appeal. They subjected themselves to the bench that 609 heard their appeal without ra1s1ng any objection as to the constitution of the Court. It is indeed open to speculation as to whether the Appellants would have taken out the Petition had the appeal been resolved in their favour. After taking into account the background of the matter and finding against the Appellants on the issues raised, the Court was entitled to form an opinion as to the motive of the Appellants. As the learned Counsel for the Respondents have submitted, the pronouncements by the Court cannot be said to have had no basis but were informed by the background and the circumstances in which the Petition was brought. We find no merit in this ground of appeal. The issue in the second ground of appeal is whether the 1st and 2 nd Respondents are amenable to be sued in their own right. The thrust of the Appellants' argument is that the Constitution of Zambia binds all persons in the Republic; that the provisions of the STATE PROCEEDINGS ACT4 do not override the provisions of the Constitution. To buttress their argument, they cited Section 139 (10) of the Constitution as well as the case of MWAMBA AND ANOTHER VS THE ATTORNEY-GENERAL22 • The learned Counsel 610 for the Appellants submitted that the Petition in this case is not a challenge of the judicial decisions of the 1st and 2 nd Respondents, but the constitutionality of the occupation of their offices without having been ratified by the National Assembly. The Respondents' Counsel on the other hand, maintained that their clients enjoy the protection of the law from actions such as one commenced by the Appellants; that they cannot be sued in their personal capacities for acts done in the exercise of their official functions. At the outset, there is need to isolate the issues that are in contention in this ground of appeal. By virtue of Article 91 (2) of the Constitution, judges and other members of the Bench are "independent, impartial ad subject only to this Constitution and the law ... " This independence and impartiality 1s strengthened and upheld by the STATE PROCEEDINGS ACT4. Section 4(5) of the Act states: "No proceedings shall lie against the State by virtue of this Section in respect of anything done or omitted to be done by any person while discharging or purporting to discharge any responsibilities of a judicial nature vested in him or any responsibilities that he has in connection with the execution of judicial process." 611 It is in the public interest that members of the bench must be truly independent and impartial in their discharge of their duties. Such independence and impartiality can be inhibited or compromised where the adjudicator is overly cautious of being answerable for any mistakes made in the discharge of their functions. It is also in the public interest that every citizen has a right of recourse to courts of law for any grievances that they may have. In the delicate balancing act of affording citizens the right to sue this category of public officers and upholding the public interest of an independent and impartial bench, the right to sue has been allowed to give way. This is a trend in most countries where the judicial function of adjudicators is insulated from suit by aggrieved parties. Going back to our earlier question, what really is in contention in this case? Is it the judicial acts of the 1st and 2 nd Respondents in Appeal No. 17 of 2009 or the Constitutionality of their occupation of the office of the Supreme Court Judge? The Court below accepted the Respondents' submission that the Petition in this case emanated from the judicial functions of the 1st and 2 nd Respondents in Appeal No. 17 of 2009. According to the 612 Judge, the Petitioners had accepted this fact in their Petition. Before us, however, Mr. SANGWA has submitted that the Petition in this case '' ..• is not a challenge of judicial decisions of the 1st and 2 nd Respondents, but the constitutionality of their occupation of the offices of judge of the Supreme Court after retirement without ratification by the National Assembly." The principle that a judge cannot be sued personally or for that matter the Attorney-General vicariously, for acts or omissions of judges in the execution of their judicial mandate is well established. But can one question the constitutionality of occupation of office by a judge? We find Article 139(10) to be a useful guide. It states: "Provisions of this Constitution that any person or authority shall not be subject to the direction or control of any other person or authority in the exercise of any functions under this Constitution shall not be construed as precluding a court of law from exercising jurisdiction in relation to any question whether that person or authority has performed those functions in accordance with this Constitution or any other law." The assumption is that the office of a judge will be occupied by persons who are properly appointed in accordance with the law. To allege that a judge was not properly appointed is different from 613 challenging judge on account of his/ her decisional function as a judge. The issues in this case appear to be intricately intertwined because the Petition was filed after the loss of an appeal in Appeal No. 17 of 2009. In our view, one can question whether a judge is holding office lawfully, but neither the Judge nor the Attorney-General can be sued on account of acts or omissions of the Judge in the exercise of their judicial functions. The learned trial Judge came out clearly on the latter position when he stated on page 57 of the record of appeal that: ''Thus although the Attorney-General as the legal representative of the State may be sued vicariously for wrongful acts of other public officers, no such suit lies against him for anything done or omitted to be done by judicial officers in the discharge or purported discharge of their official functions despite that they are also public officers." The second ground of appeal is couched as follows: "The Court below misdirected itself on a point of law when it held that the 1st and 2 nd Respondents cannot be sued in their personal capacities; neither can the Attorney-General be sued vicariously for their decision in dismissing the Petitioners' appeal.'' Clearly, this ground of appeal contends with the action of the 1st and 2 nd Respondents to dismiss the Appellants' appeal. Such judicial actions cannot be questioned. In the manner that this 614 ground of appeal was couched, we do not find that the learned trial Judge misdirected himself when he held that the 1st and 2 nd Respondents cannot be sued in their personal capacities and neither can the Attorney-General be sued vicariously for their decision to dismiss the Appellants' appeal. That is the correct position of the law. From the foregoing, notwithstanding our finding on the second ground of appeal in Part Two, the sum and total of our decision is that this appeal has no merit. It is dismissed. Having raised important constitutional issues, we direct that all the parties bear their own costs. LC. Mambilima DEPUTY CHIEF JUSTICE . ft~~~ D. K. Chirwa SUPREME COURT JUDGE 114