Maravi

Judge Chisanga reserves ruling on stay of tribunal

Judge Chisanga reserves ruling on stay of tribunal
By Mwala Kalaluka
Sun 20 May 2012, 12:20 CAT

LUSAKA High Court judge Fulgence Chisanga yesterday described as unnecessary former Attorney General Abyudi Shonga's arguments in the court contested matter involving two judges suspended by President Michael Sata.

This was after Shonga veered into arguments that the state, through the Attorney General's Chambers, did not contest in the action that urged the court to discharge leave to apply for judicial review granted to the two judges.

And Chisanga yesterday reserved ruling in the matter where the state applied for a discharge of a stay granted to suspended High Court judges Charles Kajimanga and Nigel Mutuna to on or before May 24, 2012.

This is a matter based on President Sata's decision of April 30, 2012 where judges Kajimanga and Mutuna are the applicants while Attorney General Mumba Malila is the respondent.

Judge Chisanga on Wednesday granted justices Kajimanga and Mutuna leave to apply for judicial review after they filed affidavits through their lawyers, Eric Silwamba & Company and Shamwana & Company on Tuesday to the effect that their suspension was premature, illegal and irrational.

But in his summons to discharge leave to commence judicial review proceedings filed in the Lusaka High Court principal registry on Thursday, Solicitor General Musa Mwenye argued that there was no procedural impropriety in the President's action against the two justices.

Judge Chisanga on Thursday afternoon heard the submissions from the government in Chambers and the judges' lawyers, who included Shonga, Joseph Jalasi and Lubinda Linyama were to respond yesterday.

When the matter came up in Chambers yesterday, Shonga from Shamwana & Company submitted the judges' opposition to the application by the state to have the leave to apply for judicial review discharged.

"On behalf of the judges we oppose to the application to discharge leave to commence judicial review. We rely on documents already filed on behalf of the applicants," Shonga said in his oral submission. "The starting point as we respond is perhaps to consider the question of whether the decision made by President Sata as he discharged his official duties fell under the scope of those decisions capable of being inquired into under judicial review."

Shonga then took his assertions to the nature of the stay that judge Chisanga granted to judges Kajimanga and Mutuna.

"When the High Court granted the stay against the state or the decision of the state in judicial review proceedings, does that amount to an injunction? Does it offend the State Proceedings Act? We submit that it does not," Shonga said. "The court said that the order staying the decision did not amount to an injunction. We submit that the law on this issue is settled."

At this point, Mwenye came in and asked judge Chisanga to guide the proceedings following Shonga's submission.

"I seek the court's guidance that we did not submit on whether or not the court has jurisdiction to grant a stay in these proceedings. I see nothing wrong in raising the issues I have particularly raised," Mwenye said. "What is in issue before you is whether or not leave granted by this court should be discharged."

Judge Chisanga said she had observed that Shonga was addressing issues that Mwenye had not contested.

"I observe that the learned Solicitor General did not address the issue of whether or not the leave granted amounted to an injunction," she said. "His silence on the point purports that he has no issue to raise on this point. That being the case the arguments advanced by the learned State Counsel for the applicants may not be necessary at this stage but it is my considered opinion that it does not prejudice the state. I however, guide that State Counsel...leaves these uncontested issues and proceed to submit in the contested issues."

And reserving ruling in the matter, judge Chisanga said she was mindful of the outstanding pressing matters she had to deal with in relation to the hearing.

"I am mindful of the outstanding pressing matters I have to deal with and that the matter is of utmost urgency and requires to be disposed of expeditiously," said judge Chisanga.

Mwenye said after the hearing that he would not say much on the matter because it was before the court.

"The ruling is reserved, other than that I can't say anything else. The matter is in court," said Mwenye.

One of the lawyers for the two judges described the proceedings as a wait and see situation.

Labels: ABYUDA SHONGA, JUDICIARY

posted by MrK @ 3:14 PM