Maravi

Malila appeals stay of tribunal

Malila appeals stay of tribunal
By Ernest Chanda and Mwala Kalaluka
Tue 29 May 2012, 13:25 CAT

ATTORNEY General Mumba Malila says the state is highly dissatisfied with Lusaka High Court judge Fulgence Chisanga's decision to sustain a stay of proceedings of a tribunal appointed by President Michael Sata to probe the misconduct of three suspended judges.

In a notice of appeal filed by Malila in the Supreme Court registry yesterday, the state indicated that its appeal to the Supreme Court was against the whole ruling delivered by judge Chisanga on May 24, 2012.

Judge Chisanga's ruling emanated from an application filed on May 17, 2012 by Solicitor General Musa Mwenye for her to set aside an ex-parte order granted to two suspended High Court judges, Nigel Mutuna and Charles Kajimanga, on May 16, 2012 for leave to apply for judicial review.

The judicial review sought, according to judge Chisanga's ruling, was in respect of the decision made by President Sata on April 30, 2012, to appoint a tribunal to investigate the applicants and to suspend them as well, together with Supreme Court judge Philip Musonda.

Judge Chisanga in dismissing the state's application last Thursday said she does not agree with Mwenye that the investigations to be conducted by the tribunal ought not to be stayed simply because the process is investigative in nature.

"My firm position is that the investigations, being non-criminal in nature, are amenable to be stayed. It would totally defeat the course of justice not to stay the President's decision," she said.

"The purpose of Judicial Review is to ensure that the individual is given fair treatment by the authority to which he has been subjected."

Judge Chisanga said Mwenye delved into the merits of the case, through his application, prematurely.

"I therefore dismiss the application with costs. Leave to appeal is granted.
In the event that no appeal is lodged, the substantive application will be heard on the 30th May, 2012 at 09:00 hours," said judge Chisanga.

But Malila in his notice of appeal in the Supreme Court, which was filed yesterday morning, said he was dissatisfied with judge Chisanga's ruling in its entirety.

"Take notice that the appellant herein the Attorney General being dissatisfied with the ruling of the Honourable Madam Justice F.M Chisanga sitting at Lusaka and delivered on the 24th day of May 2012 intends to appeal to the Supreme Court against the whole ruling under cause number 2012/HP/0515 dismissing the appellant's application to discharge leave to apply for judicial review," Malila's notice read.

And Mike Mulongoti says the Judiciary should be amenable to public scrutiny.

Commenting on the resistance by judges Charles Kajimanga and Nigel Mutuna to the setting up of the tribunal by President Michael Sata against them, Mulongoti said the Judiciary was a public institution which should be checked by the people.

He said if the other two arms of government could be scrutinised by the public without any problem, the same should happen to the Judiciary.

"There's this assumed misfit where the corporate veil must never be removed. But you see, checks and balances are for everybody. And I would like to believe that at some point in as much as we would like to protect the sanctity or whatever you call it, of the Judiciary, they should be amenable also," said Mulongoti yesterday.

"I still insist that we must go to the original intention. The President's original intention was to do an inquiry by setting up that tribunal. Now it would appear that it discomforted people; and so many things have come in between. I do not think we should lose sight of the original intention because that original intention is supposed to lead us to the truth. So those who are fighting the original intention which is an inquiry are the ones I'm finding difficulties with. Whether the circumstances surrounding that decision are questionable, I think you cannot throw the baby with the dirty water. The original intention is what I stand for; it was supposed to be an inquiry. There was no indication of guilty; it was supposed to be an inquiry."

And foreign affairs minister Given Lubinda says if his proposal to have a law that would compel members of the Judiciary to declare their assets had been accepted by parliament, the current problems in the Judiciary would not have risen.

Lubinda said he was threatened by some senior members of the Law Association of Zambia when he pushed for judicial checks and balances.

In 2006, Lubinda presented a private member's motion which sought to bring a law that would compel Judiciary workers and other senior civil servants to declare their assets and liabilities.

"In 2006 I presented a private member's motion to Parliament, where I was seeking the introduction of a law that would compel three groups of people to declare their assets and liabilities. I wanted that law to compel all members of parliament, all members of the Judiciary and all senior civil servants to declare their assets and liabilities annually," said Lubinda.

"But this motion was stopped by the late Republican vice-president George Kunda when he was justice minister through an engineered MMD majority. And prior to that I was summoned and later held up at Hotel Intercontinental by very senior members of LAZ. They threatened me that if I went ahead with that motion, all members of the judiciary would resign, and that there would be chaos in the nation. I was in the company of my friends former PF members of parliament Lazrous Chota and Lombe Mulenga [for Lubanseshi and Kwacha respectively."

And communications deputy minister Col Panji Kaunda said judicial reforms could not be done without outside help.

Col Panji said Zambia needed outside help in reforming the Judiciary especially now that Zambia was about to have a new constitution.

He said currently there was a lot of suspicion and people had no confidence in the judicial system hence the need for outside help.

Col Panji said there was need to lay off the judges and expatriates hired while the reformation process was going on.

He said later, individuals that were cleared would reapply while new positions could be filled up by other lawyers.

Col Panji said in its current form, the Judiciary could not carry out reforms to review itself.

Labels: COURTS, MICHAEL SATA, MUMBA MALILA

posted by MrK @ 3:24 PM