Maravi

Sangwa petitions High Court for Chief Justice's removal

Sangwa petitions High Court for Chief Justice's removal
Written by George Chellah and Mwala Kalaluka
Tuesday, July 21, 2009 6:36:25 PM

SIMEZA Sangwa and Associates on Tuesday petitioned the High Court to order Chief Justice Ernest Sakala and justice Peter Chitengi to vacate their offices. According to a petition filed on behalf of their clients Faustin Kabwe and Aaron Chungu in the Lusaka High Court, Simeza Sangwa and Associates are praying to the court to grant them an order restraining Justice Sakala and justice Chitengi from occupying and performing their functions until after the hearing and determination of the petition.

Kabwe and Chungu are the first and second respondents while Justice Sakala, justice Chitiengi and Attorney General Mumba Malila are the first, second and third respondents respectively.

The petitioners stated that Justice Sakala is a judicial officer who had passed the constitutional retirement age of 65 years but that he had continued to hold and perform the functions of the office of Chief Justice.

They stated that justice Chitengi was also a judicial officer who had passed the constitutional retirement of 65 years but had continued to hold and perform the functions of a judge of the Supreme Court.

The petitioners pointed out that Malila, who is the principal legal adviser to the government, had been included to the proceedings by virtue of the provision of Section 12 of the State Proceedings Act, Cap 92 of the laws of Zambia.

"We have also spoken to a number of lawyers who believe that prosecuting this Petition while the First and Second Respondent are still in office and performing the functions of the Office of the Judge of the Supreme Court would lead to the independence and integrity of the judicature in Zambia being undermined and we have no reason to doubt this view," the petitioners stated. "Your Petitioners, therefore, pray that they be granted the following remedies: (a) An order restraining the First and Second Respondents from occupying and performing the functions of the office of judge of the Supreme Court until after the hearing and determination of this Petition. (b) A declaration that the appointments of First and Second 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 First and Second Respondents was ultra-vires Article 93(2) of the Constitution hence null and void."

They further prayed for a declaration that the appointments of Justice Sakala and justice Chitengi not having been ratified by the National Assembly, their hearing of the Petitioners' appeal at Ndola on June 2, 2009 and the delivery of "judgment" on July 9, 2009, sitting together with Madam justice Chibomba, 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," they stated in part.

The petitioners also stated that since the above hearing of the appeal by the two respondents and justice Chibomba was ultra-vires Article 18(9) of the Constitution and was presided over by a panel that was not independent and impartial it was hence null and void.

They further noted that at the time Justice Sakala and justice Chitengi were hearing their appeal, which was ultimately dismissed in Ndola, they were both beyond the retirement age of 65 as stipulated in Article 98(1) of the Constitution.

"The appointments of the First and Second Respondents by the President after their retirement to a further term not exceeding seven years, their assumption of office of judge of the Supreme Court and their performance of the functions of the office of the judge of the Supreme Court without ratification of the said appointments by the National Assembly violated Article 1 of the Constitution," the petitioners contended.

The petitioners, who stated that they were arrested and charged with other persons on various counts of corruption in 2004, also asked the court to grant them several remedies going by their petition.

"We have also made an application for an interim relief in the form of an Order restraining the First and Second Respondent from occupying and performing the functions of the office of the Supreme Court until after the hearing and determination of this Petition," the petition read further. "The said relief is necessary in that as long as the First and Second Respondents continue to occupy and perform the functions of the office of judge of the Supreme Court it is unlikely that this Petition will receive a fair hearing as the First and Second Respondents are likely to interfere and consequently influence the judge that will hear and determine this Petition. There is already evidence of the First Respondent working with the current Judge responsible for allocation of cases in the High Court interfering with Madam Justice C.B. Phiri who is hearing one of our cases No. 2008/HP/1339. The matter is now subject of a consideration by the Judicial Complaints Authority."

The petitioners further stated that the sources of their knowledge and belief were the documents, meetings and information, which came into their possession over the last seven years that they had been facing various criminal charges and also pursuing various civil claims against the state and other public institutions.

Labels: ERNEST SAKALA, JOHN SANGWA, PETER CHITENGI

posted by MrK @ 5:36 PM