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The Judiciary is panicking - Zulu

The Judiciary is panicking - Zulu
By Kombe Chimpinde, Namatama Mundia and Mwala Kalaluka
Thu 17 May 2012, 14:00 CAT

MINISTER of Justice, Sebastian Zulu, yesterday said the granting of the stay of President Michael Sata's suspension of justices Phillip Musonda, Charles Kajimanga and Nigel Mutuna showed that the Judiciary was panicking. And Zulu has ordered Solicitor General Musa Mwenye to immediately apply to the High Court to have the stay of execution of the tribunal revoked.

Lusaka High Court judge Flugence Chisanga yesterday stayed proceedings of a Tribunal appointed by President Sata to investigate the misconduct of a Supreme Court judge and two High Court judges after arguments that it was illegal and premature.

In an interview shortly after the state received the order served on the Attorney General, Zulu said he was surprised by the development because it was unlawful and in contravention of the state proceedings Act.

The matter has been instituted by High Court judge Nigel Mutuna and judge Charles Kajimanga who are contesting the legality of the their suspension as judges last month and the subsequent setting up of a tribunal to probe their alleged misconduct.

"I have ordered the Solicitor General to immediately have that stay revoked on the ground that under Section 16 of the state proceedings Act. An injunction may not be grunted against the state," he said.

"An order of stay is in fact a mandatory injunction which is ordering that the tribunal should not take off. That is what the law does not allow. It (law) doesn't allow such an order as far as I am concerned."

Zulu said he was shocked at the order passed by the judge, in which the reinstating of two involved parties as judges has also been ordered, stressing that it was clear that the Judiciary were panicking.

"The order further goes on to say that they (judges) should be reinstated and that the tribunal should not sit, that's a mandatory injunction, the law says you cannot do that," he said.

"Your know that I was Solicitor General before. I know what I am talking about."

"I am very surprised that they have done that. They cannot issue a mandatory injunction against the state," Zulu said.

Suspended High Court judges Mutuna and Kajimanga applied for leave to apply for judicial review in the High Court and cited the Attorney General Mumba Malila as the respondent in the matter.

In a ruling delivered yesterday in chambers, judge Chisanga granted the applicants leave to apply for judicial review after reading their affidavits in support of ex parte application for leave to apply for judicial review.

"It is hereby ordered that the applications be and are hereby granted leave to apply for judicial review," judge Chisanga said. "And further ordered that the leave so granted shall operate as a stay of the decision of His Excellency the President of the Republic of Zambia to appoint a Tribunal, to suspend the applicants and any adverse measures against the applicants who are citizens of the Republic of Zambia in relation to the performance of their constitutional duties as duly appointed puisne judges serving the High Court of judicature for Zambia pending the full determination of this matter until any further direction by this honourable court."

The application was granted after the two judges' lawyers Eric Silwamba & Company and Shamwana & Company filed it on May 15, 2012.

The application was made based on The Constitution of Zambia, Order 53 of the Rules of the Supreme Court, Article 18 9 and 91 2 of the Constitution of Zambia as read with the provisions of the Judicial Code of Conduct among others.

In their affidavit in support of an ex parte summons for leave to apply for judicial review, judge Kajimanga and judge Mutuna said they were currently serving as a High Court judges.

They said they received a letter from the President on April 30, 2012 suspending them from performing their duties pending proceedings of the Tribunal.

The duo said at no time had the allegations leveled against them been lodged before the Judicial Complaints Authority JCA as prescribed by the Constitution.

"I am advised by counsel and verily believe that His Excellency the President had prematurely invoked the provisions of the Constitution of the Republic of Zambia by establishing the Tribunal as the complaint authority of first instance," judge Kajimanga said.

Judge Kajimanga said the defendants in the Development Bank of Zambia v Post Newspaper Limited, JCN Holdings Limited and Mutembo Nchito had since appealed in the Supreme Court and that he was of the belief that they would not be prejudiced if he was granted leave to apply for judicial review.

He said conversely in the interest of justice could be served so that his intended application which he believed possessed the requisite merit is considered accordingly.

According to the two judges notice containing the statement in support of leave to apply for judicial review, they urged the court to quash the President's decision to suspend them and appoint a Tribunal to investigate them saying it was illegal, premature and consequently null and void.

The duo argued that President Sata erred in law and usurped the statutory powers of the JCA and those of the Chief Justice when he purported to assert the role of an investigator.

The two judges also submitted that their suspension was tantamount to procedural impropriety as they were not accorded procedural fairness of being heard as dictated by the basic rules of natural justice.

"Further, the decision of His Excellency the President of the Republic of Zambia on the 30th day of April, 2012 by modus operandi of a public address to the nation is and mala fides in bad faith as he proceeded to make pronouncements of the misbehaviour and corrupt disposition before an investigation was conducted," they submitted.

They further stated this was designed to influence the subsequent decision of the purported Tribunal contrary to the law that dictates that any complaint against a judicial officer would be investigated and conducted in a confidential manner.

The two judges said the President's decision was also irrational as it was premised on improper motives characterised by political consideration and actual bias without proper investigations but anchored on unsubstantiated reports made by persons that enjoy particular relationship with the President.

Hearing in the matter has been set for May 30, 2012.

Labels: JUDICIARY, MICHAEL SATA

posted by MrK @ 6:18 PM