Friday, May 10, 2013

No tribunal to investigate the three judges

THE Supreme Court has advised the State against proceeding with the tribunal to investigate the alleged professional misconduct of three Judges.
Delivering a four-hour judgment yesterday, acting Chief Justice Lombe Chibesakunda on behalf of a bench of seven, however, ruled that President Michael Sata did not breach his Constitutional powers when he suspended the trio and the subsequent setting up of the tribunal.
The three are Supreme Court Judge, Phillip Musonda and two High Court judges, Nigel Mutuna and Charles Kajimanga.
Ms Justice Chibesakunda sitting with her Deputy, Florence Mumba, Judges, Marvin Mwanamwambwa, Hildah Chibomba, Gregory Phiri, Munyinda Wanki and Elizabeth Muyovwe advised the State not go ahead with the tribunal due to the nature of the case.
“Although we agree that the President’s decision to appoint a tribunal was not ultra vires, we believe it would be advisable for the tribunal not to proceed due to the nature of issues raised and we make no
orders with regards to costs,” she said.
She said that this was a landmark judgment in the history of Zambia claiming that the outcome would instill the sense of responsibility in the judiciary, the court’s jurisdiction as well as the conduct of the
Judge Chibesakunda said the tribunal would have accorded the three judges to give the side of their story as it was not a prosecution.
She said High Court Judge Fulgence Chisanga misdirected herself when she granted the respondents leave to apply for judicial review which also acted as a stay to the proceedings because the President had already appointed the tribunal.
Justice Chibesakunda’s judgment was followed by three dissenting judgments by Judges Mwanamwambwa, Muyovwe and Chibomba who all said that the learned trial judge was on firm ground to stay the proceedings.
The judges argued that Article 98 (3) which the President used to suspend the tribunal could be challenged through a judicial review by anyone who was not agreeable with the action because law was not static.
Commenting on the judgment, Solicitor General Musa Mwenya said it was one of the landmark judgments where judges exercised their independent minds to come up with the judgment.
Mr Mwenya said the judges could not be faulted for coming up with different views on the case.
“This is one case where judges have exercised different independent views in a serious and extremely constitutional matter. In my view the judges have acquitted themselves and they cannot be faulted with the way they have decided on this case,” Mr Mwenya said.
Attorney General Mumba Malila had appealed against Judge Chisanga's decision to stay proceedings of the tribunal appointed by Mr Sata to probe the alleged misconduct of the three Judges.
Mr Malila had indicated in his notice of appeal to the Supreme Court that the State was dissatisfied against the ruling and as such it was appealing against the whole ruling delivered by Judge Chisanga on May 24, 2012.
The Judges had sought judicial review in respect of the decision made by President Sata on April 30, 2012, to appoint a tribunal to investigate them.
But Ms Justice Chisanga in dismissing the State's application stated that she did not agree with Mr Mwenya that the investigations to be conducted by the tribunal ought not to be stayed simply because the process was 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 had said.
Times of Zambia

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