Last week, President Michael Sata, prompted by numerous requests, suspended Supreme Court judge Philip Musonda and High Court judges Charles Kajimanga and Nigel Mutuna over their alleged professional misconduct in a civil case involving the Development Bank of Zambia against The Post Newspapers Limited, Mutembo Nchito and JNC Holdings Limited.
The President set up a four-man tribunal, led by Malawi High Court judge Lovemore Chikopa, to investigate the trio's alleged misconduct and recommend the way forward.
Although Sata's decision has won the support of legal practitioners like Rodger Chongwe and Ludwig Sondashi and organisations like the Law Association of Zambia and Transparency International Zambia, it has also attracted sharp criticism from mainly opposition political parties who have, inter alia, opposed the suspension of the judges 'for exercising their constitutional authority' on procedural basis, rejected the composition of the tribunal, and accused the President of protecting his perceived allies and interfering in the operations of the judiciary. What do we make of all this?
First is that the suspension of the judges, as pointed out by LAZ and TIZ, is most justified and the correct response from the President.
Whether or not the accused judges are guilty is another matter altogether. What is relevant for now is that, based on the evidence available in the public domain, the manner in which the three judges conducted themselves in relation to the case, clearly warrants a suspension and gives sufficient and legitimate grounds for the establishment of a tribunal to examine their conduct. Of course, there are some people who have argued that if the defendants were unhappy with Mutuna's final judgment, they should have appealed against the verdict to the Supreme Court, not to the President through the Minister of Justice. But this point is deeply flawed.
While a review of judge Mutuna's judgment is indeed one of the available options for the defendants, it is important to understand that the defendants are not contesting the actual judgment itself but the process that brought about or secured that judgement, including the uncharacteristic manner in which their case was transferred from one judge to another.
Acting Deputy Chief Justice Dennis Chirwa's reported response to the defendants' legitimate concerns was not only strange and unhelpful to the furtherance of justice; it was, more importantly, the basis upon which the defendants decided to seek other channels outside the Judiciary, having had their request for administrative settlement of their complaint blatantly denied or scornfully spurned.
Second is that although Sata's suspension of the judges and instituting of a tribunal to investigate their alleged professional misconduct represents a clash of the separation of powers between the executive and the Judiciary, at least in principle, it is important to understand that the President has not violated any law but merely exercised his powers as enshrined in the existing Constitution. The present Constitution gives the President express powers to be involved in the operations of the judiciary in the manner that President Sata has been.
Article 98 (3) of the Constitution states: "If the President considers that the question of removing a judge of the Supreme Court or of the High Court under this Article ought to be investigated, then (a) he shall appoint a tribunal which shall consist of a Chairman and not less than two other members, who hold or have held high judicial office; (b) the tribunal shall inquire into the matter and report on the facts thereof to the President and advise the President whether the judge ought to be removed from office under this Article for inability as aforesaid or for misbehaviour."
Part (5) adds: "If the question of removing a judge of the Supreme Court or of the High Court from office has been referred to a tribunal under clause (3), the President may suspend the judge from performing the functions of his office, and any such suspension may at any time be revoked by the President and shall in any case cease to have effect if the tribunal advises the President that the judge ought not to be removed from office."
If there is anything (pleasantly) surprising here, it is that President Sata has not only done everything according to the law but also taken a rather unusual but commendably respectful stance on a delicate issue.
Read against this constitutional provision, the President's decision to suspend the three judges and constitute a tribunal to probe them is legally correct. In other words, the law is clear in cases where substantiated evidence of misconduct is provided - a tribunal has to be set up and the President may suspend the judge from performing the functions of his office.
However, those who are unhappy with the status quo in relation to the involvement of the President in the Judiciary should be delighted that the latest draft constitution has recommended the removal of executive interference and left the power to investigate and remove a judge to the Judicial Complaints Commission with only a marginal role for the President.
Article 188 (1) of the draft constitution says "A person who has a complaint against a judge may…submit a petition to the Judicial Complaints Commission…". Part 5 continues: "Where the Judicial Complaints Commission determines that there are grounds for the removal of the judge on the grounds specified under Article 187 (b), (c), and (d) the Commission shall, within fourteen days of the determination, recommend to the President, the removal of the judge, and the President shall remove the judge from office forthwith". The challenge that arises is to ensure that there are adequate accountability mechanisms in place to curb the possible excesses of our women and men in robes and wigs in order to ensure that they do not become unchallengeable.
But the constitutional committee's recommendation is in line with what exists elsewhere in Africa such as Kenya where the removal of a judge is a preserve of the Judicial Service Commission. Article 168 (2) of the Kenyan constitution says: "The removal of a judge may be initiated only by the Judicial Service Commission acting on its own motion, or on the petition of any person to the Judicial Service Commission".
Parts 4 and 5 add that: the Commission shall in turn consider the petition and, if it is satisfied that the petition discloses sufficient grounds for removal, send the petition to the President who shall, within fourteen days after receiving the petition, suspend the judge from office and appoint a tribunal to investigate the alleged misconduct.
Our final observation is that we need to see more judges being removed for possible corruption. Surely, the suspended ones are not the only ones whose decisions are reducing public confidence in the Judiciary and bringing the institution into disrepute? There is need for President Sata to extend the review of the (mis)conduct of judges to other strange judgements that have come from the Judiciary in the recent past such as the controversial acquittal of former president Frederick Chiluba by magistrates Jones Chinyama and that of his wife by High Court judges Evans Hamaundu, Eddie Sikazwe and C. K. Makungu.
Other cases include judge Hamaundu's decision to throw out the application to register in the Zambian courts the London High Court judgment which found Frederick Chiluba and his fellow accused liable for theft of about US $46 million of public funds.
What the opposition political parties should do is to rise above their parochial and petty differences with The Post and Mutembo Nchito and provide legally sound, crucial and irrefutable grounds for judicial review of all the cases which have been handled controversially by our Judiciary and present them to President Sata for consideration. That will test President Sata's commitment to dealing with the sources of and addressing the alleged corruption in the Judiciary.
In the event that after being presented with solid grounds for review of these cases and the conduct of the judges who presided over them, the President is reluctant to act, then observations that he only succumbed to the suspension of judges in the present case because it affected his perceived allies may gain ground. But presently, opposition claims that President Sata suspended the three judges because they passed a judgment unfavourable to his perceived political allies are unconvincing.
This is because the arguments advanced by the President for the suspension of the judges for possible judicial misconduct and those outlined by the defendants for possible collusion of justice are not trivial issues that one may easily dismiss: they are credible and well-founded grounds worth establishing a tribunal for.
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