Lungu must suspend Constitutional Court judges

Filed under: Politics,Special Comments |
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By Isaac Mwanza

 

Shortly after the Presidential Petition that lapsed on September 2, 2016, two members of the public, Alfred Chims Mbewe of House No. 17/39 Matero in Lusaka and Emmanuel Jackson Mtonga of House No. 38/06 Foxdale, Chelston, Lusaka, wrote a complaint to the Judicial Complaints Commission  (JCC) to complain about the conduct of the Judges, citing misconduct and incompetence, as per Article 143 (b) and (c) of the Constitution of Zambia (Amendment) Act No. 2 of 2016. This was followed by another complaint by Progressive Citizens, a group of citizens within Zambia and abroad, also filed a formal complaint with the JCC on the alleged incompetence of 5 Judges of the Constitutional Court. YALI  supported the complaint as submitted by Progressive Citizens. Later, the Green Party through its President Peter Sinkamba followed up with another similar complaint dated 6th September 2016. Lusaka Times reported that the Mutati-led MMD was in support of the filing of the such a complaint to the Commission. Earlier in the year and before the appointment of the Constitutional Court Judges, one of Zambia’s finest Constitutional Lawyer, John Sangwa, had alerted President Lungu that the Judges are ill – qualified to be appointed as Constitutional Court Judges.

 

It is now almost 3 months after the first complaint was submitted to the JCC. The JCC, on its part, had informed the complainants that the Commission was now ready to begin hearing the matter against the judges on the grounds specified in Article  143  (b), (c) and it’s sittings should have taken place on the dates it had set in December 2016 as communicated to complainants.

 

The procedure for the removal of the Judges is expressly provided for under Article 144 of the Constitution of Zambia and the Judicial  (Code  of  Conduct)  Act No. 13 of 1999. Before hearing the matter against Judges, certain steps ought to be fulfilled. Article 144 is instructive and outline steps as follows:

 

Step 1:

Complaint is made to the Commission  or the matter is initiated by the JCC itself. The step was fully adhered to as demonstrated by the number of complaints initiated by different persons. This is in accordance with Article 144 clause 1.

 

Step 2:

JCC finds a prima facie case as provided by Article 144 clause 2. What is a prima facie case? If we are to go by the standards in criminal matters, a prima facie case can be defined as the sum total of evidence at the close of the prosecutions case sufficient to warrant the putting of an accused person on his defence. But this is not a criminal matter but a Civil matter and an investigation. The presentarion of evidence in this matter or hearing of witnesses only comes up during step 5. The requirement therefore is for the JCC itself to decide that a prima facie case has been established.

 

But how then can a prima facie case be decided? Section 25 (4)(c) of the Act No. 13 requires that the complainant provides a  “detailed  statement including  the  facts  of  the  incident  or circumstances  giving  rise  to  the  complaint.” This, as i have said is what was done by the complainants. The JCC therefore ought to evaluate EITHER (1) facts of the incident or (2) circumstances giving rise to the complaint. (Probably, if I was a member of the JCC, I would also kindly request Judges, although not a requirement, being complained against to give a rebuttal so as to help the Commission arrive at the decision. I could also kindly ask complainants to supply witness statements although the law does not require complainants to supply such statements to the Commission and the Commission cannot compel the complainant to supply such).

 

A prima facie case, before an investigation commences into the conduct of the Judicial officer, can therefore be said to be “a cause of action that is sufficiently established by a party’s statement of facts or circumstances  to justify a verdict in his or her favor, provided such evidence is not rebutted by the other party. It appears lower than in the criminal case where evidence has to be adduced. This is an investigation and the Court has explained in the many appeals by Mutembo Nchito that an investigation remains an investigation.

 

So if any of the parties who have complained to the JCC have shown they have a cause of action that is sufficiently established by a party’s statement of facts or circumstances which gave rise to the complaint, the JCC would to decide whether the prima facie case has been established. Bear in mind that the JCC already informed parties that the hearing of the matter will commence, thereby implying that Commission did establish a prima facie case.

 

Step 3:

The JCC cannot begin hearing the case without submitting the report to the President whose action is needed in step below. Article 144 clause 2 therefore demands that the JCC reports to the President.

 

Step 4:

President suspends judges. According to Article 144 clause 3 and before the hearing of the matter, the President must within 7 days after receipt of the report of the JCC suspend the judge or judges being complained against. This is an essential step and Mutembo Nchitos legal battles against his suspension comes into play as a good case study. Suspending the Judges does not mean the Judges are guilty just as it was deemed in Mutembo Nchitos case. It’s a requirement which was well explained by the Court. So if it was good for Mutembo Nchito, it must be good for the Constitutional Court Judges.

 

Step 5:

JCC begins to hear the matter in accordance with Article 144 (4)(c) while article 4 provides that the matter ought to be heard within 30 days from time the Judges are suspended. Looking at the volume of proceedings that may lay ahead of the 3 solid complaints and the number of witnesses that ought to testify, the JCC must not repeat what happened in the 14 days intepretation of the Presidential petition. The 30 days are inclusive of the weekends and the JCC can even sit in the night, if need be, bearing in mind that Judges would have been suspended. The JCC must also consider consolidating the three complaints into one.

 

Step 6:

If found guilty, JCC recommends removal.

Article 144 clause 5 reads:

 

(5) Where the Judicial Complaints Commission decides that an allegation based on a ground specified in  Article 143(b), (c)  and (d)  is—

(a)  not substantiated, the Judicial Complaints Commission  shall recommend, to the President, the revocation of the judge’s suspension and the President shall immediately revoke the suspension; or

(b)  substantiated, the Judicial Complaints Commission  shall recommend, to the President, the removal of the judge from office and the President shall immediately remove the judge from office.

 

Step 7:

President must remove the Judges or they lift suspension.

 

Conclusion

The JCC, as I have already indicated is already on Step 5 although steps 3 has not been taken. So why is President Lungu not suspending the Constitutional Court Judges out of respect for the Constitution? I hate to talk about this but this is what happened to Mutembo Nchito and many others before these Judges. Mutembo used all available means to legally fight his suspension but not even the Judges could protect him from the requirement. We also know other Judges Kajimanga and Musonda who were in  the same position. Why is the media silent over this matter, anyway.

 

The case against the Constitutional Court Judges is not a politcal matter but borders on serious allegations of incompetence which left both the Petitioners (HH and GBM) and Respondents  (ECL and Madam Wina) speechless. The lawyers acts from both sides also were shocked by what was happening in the ConCourt. The fact that now President Lungu is enjoying power shouldn’t make him close his mind to what happened during the Presidential petitions. The petitioners, Respondents, lawyers from both sides, and members of the public have to address this matter and the JCC is an opportunity to help understand what happened during the Presidential petition.

 

Since the Commission has already set dates for hearing of complaints against Judges, its either the President received a report and has not acted as required of him by the Constitution or if has not, then the JCC is itself incompetent and must be dissolved.

 

Also, we need to amend Article 144 which requires the JCC to decide whether a prima facie case has been established. Drafters wanted to sound more learned by introducing words that are so heavier.

 

Finally, what remains of the Constitutional Court if the Constitution is obeyed and the 5 Judges are suspended? This is where the President ought to have appointed the minimum required number of Judges of of the Constitutional Court which is 11 Judges Plus President and Deputy President of the Constitutional Court. Imagine if a dispute arises on interpretation of Article 144 between the JCC and those who filed complaints against Constitutional Court Judges, will the same Judges hear their own case?

 

Good afternoon.

 

(DISCLAIMER: This remains my personal opinion and does not reflect the position of any organisations or groups I may be be associated with. It must not be taken as conclusive legal advice. Those wanting legal advice must approach practising lawyers in Zambia).

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4 Responses to Lungu must suspend Constitutional Court judges

  1. It’s very difficult for Lungu to suspend the judges as they were working under his instructions.

    Luciano Mulilo
    December 23, 2016 at 7:21 pm
    Reply

  2. Isaac Mwanza is daydreaming. Lungu appointed these Judges for reasons. The main reason is to protect his misrule. So far Concourt has not disappointed. The Petition was threatening his illegal hold on power. Hearing the Petition would have exposed how Lungu stole Election Victory from HH but with enormous help from Esau Chulu and his Team at ECZ Lungu is steal in power. Without ECZ’s creative Accounting of votes Lungu would have lost power.Concourt sat on the UPND Application compelling Lungu to step aside and handover power to the Speaker of Parliament to act as President while the Petition was being heard at Concourt. Had this happened Lungu would have lost control of the process possibly leading to him being disqualified as President Elect.To Lungu Concourt, especially the three muskateer Judges, did very well for Lungu and deserve a Bonus and promotion to Senior Judges. Without the sterling work by three Concourt Judges Lungu’s fortunes could have changed. On this basis ba Mwanza u can see why Lungu needs these Judges at Concourt to do his bidding. Its therefore unthinkable for Lungu to dismiss his hard working and compliant Judges at Concourt.

    Chamu
    December 23, 2016 at 8:36 pm
    Reply

  3. This is what they call a done deal,done and dusted!The rule of law was tossed out the window of this moving car called Zambia and is only visible in our rear view mirror,we can only gnash our teeth and pray that our driver high on Scotch doesn’t crash us into the Zambezi before we cross the bridge in 2021,talk of JCC ?my foot! That is now like a relic or a fetish mask,used only to conduct eveil rituals at appropriate times by the sangoma’s,sivintu!

    manluche
    December 25, 2016 at 9:26 pm
    Reply

  4. Isaac Mwanza read my lips,CAN’T NEVER,WILL NEVER!

    manluche
    December 26, 2016 at 2:46 am
    Reply

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