Malila appeals stay of tribunal

Malila appeals stay of tribunal
By Namatama Mundia
Sun 17 June 2012, 13:25 CAT

ATTORNEY General Mumba Malila says judge Flugence Chisanga misdirected herself and fell into grave error when she issued an order staying the decision by President Sata to appoint a tribunal to investigate the misconduct of a Supreme Court judge and two High Court judges.

Malila has appealed to the Supreme Court against High Court judge Chisanga's ruling to sustain the stay of proceedings of a tribunal appointed to investigate High Court judges Nigel Mutuna and Charles Kajimanga after defence arguments that the tribunal was illegal and premature.

Supreme Court judge Philip Musonda has since joined judges Mutuna and

Kajimanga, in challenging the tribunal appointed to probe their alleged misconduct after former deputy chief justice Dennis Chirwa allowed his application.

However, Chief Justice Ernest Sakala and justice Chirwa have proceeded on leave pending their retirement and President Sata has since appointed justice Lombe
Chibesakunda as Chief Justice while justice Florence Mumba is acting Deputy Chief Justice.

According to a memorandum of appeal filed in the Supreme Court on June 14, 2012, the state has filed nine grounds of appeal against judge Chisanga's ruling.

Malila said judge Chisanga misdirected herself by purporting to prescribe a condition precedent for the President's exercise of his Constitutional power.

He said it was misdirection of the serious kind for judge Chisanga to hold that the Republican President could only invoke his Constitutional powers under
Article 98 (3) of the Constitution, upon the advice of the Chief Justice given under subsidiary legislation passed later than the Constitution, namely the Judicial Code of Conduct Act No.13 of 1999.

Malila said it was serious misapprehension of Constitutional provisions and consequently a misdirection for the judge to suggest as she did in her ruling that there was an interplay between Article 91 (2) of the Constitution and the Judicial Code of Conduct on one hand.

He further said judge Chisanga grossly misdirected herself by interpreting Article 98 (1) of the Constitution in a manner inconsistent with the current meaning of the words used in that Article.

Malila added that by failing to construe the text of the Constitution according to its original understanding, judge Chisanga departed significantly from basic principles of constitutional interpretation and thereby fell into grave error.

He added that the judge erred when she held that Presidential powers given under Article 93 (3) of the Constitution were assailable on the basis of Article 91 (1)and 91 (2) of the Constitution.

"The learned judge in the court below misdirected herself in law and fact in finding as she did that on facts and the arguments advanced there was a prima facie and arguable case sufficient to justify refusal to discharge the ex-parte order granting leave for judicial review," Malila noted.

He said by issuing an order staying the decision of the President, which order was couched in mandatory terms and thus effectively reversing rather than merely staying the presidential decision, judge Chisanga fell into grave error.

"It was a travesty of justice for the learned judge below to have adopted an approach in her ruling which effectively prejudged the issues that should have been properly reserved for the main judicial review hearing," said Malila.