Maravi

Sata has powers to suspend a judge, Malila tells Supreme Court

Sata has powers to suspend a judge, Malila tells Supreme Court
By Namatama Mundia and Agness Changala
Wed 19 Sep. 2012, 10:30 CAT

THE Attorney General yesterday told the Supreme Court that President Michael Sata has powers to suspend a judge without consulting the Judicial Complaints Authority.

This is in a case where Attorney General Mumba Malila appealed against Lusaka High Court judge Fulgence Chisanga's ruling where she stayed President Sata's decision to appoint a tribunal to investigate the misconduct of Supreme Court justice Philip Musonda and two High Court judges Charles Kajimanga and Nigel Mutuna.

The long awaited tribunal appeal hearing was heard before a full bench of Supreme Court justices who included acting Chief Justice Lombe Chibesakunda, acting Deputy Chief Justice Florence Mumba, Marvin Mwanamwambwa, Muyinda Wanki, Elizabeth Muyovwe, Hildah Chibomba and Gregory Phiri.

Malila urged the court to allow their appeal saying judge Chisanga made a ruling from a wrong premise namely an inappropriate interpretation of Article 98 (2) of the Constitution, adding that if she had placed a correct interpretation of that provision, she would have come to know that the application for judicial review would fail.

He 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 the Article.

Malila said 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 misdirecting herself.

He said in dealing with the application to discharge leave, judge Chisanga inevitably dealt to an extent with the main judicial review application.

Malila added that judge Chisanga did not also take into account all the issues which were brought before her.

And Solicitor General Musa Mwenye also submitted that judge Chisanga 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.

He said had judge Chisanga directed her mind to three considerations namely, illegality, procedural impropriety and unreasonableness, she could have come to the inescapable position that there was in fact no prima facie case established.

Mwenye said there 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.

He said there was nothing that dilutes the constitutional powers of the President in Article 98.

Mwenye said the matter in the court below had gone behind the stage of leave because judge Chisanga had already granted leave for judicial review.

"The learned judge had different considerations before her from the considerations which she ought to have directed her mind at the stage of the application to discharge the leave," he submitted.

Mwenye further submitted that at the stage of discharging the leave, it was unavoidable to delve in the merit of the application, adding that had the judge directed her mind to the powers of the President, she could have come in the inescapable consideration that there was no prima facie.

He added that judge Chisanga in deciding whether prima facie had been established, she should have directed her mind to whether the decision by the President was executive or quasi judicial.

Mwenye said had the judge considered the serious weighty public policy consideration, she would not have come to inescapable conclusion that there was no prima facie.

And one of the respondents' lawyers, former Attorney General under the Rupiah Banda regime, Abyudi Shonga urged the court to dismiss the appeal with costs saying judge Chisanga was on firm grounds when she granted his clients a stay against their suspension.

He said the appeal should be dismissed because the appellants had raised new grounds which they did not raised in the lower court.

Labels: FLORENCE MUMBA, JUDICIARY, MICHAEL SATA, MUMBA MALILA

posted by MrK @ 1:48 PM