Resign, Banned Judges Told
LUSAKA lawyer Kelvin Bwalya has challenged the three suspended judges to retire on moral grounds before the tribunal determines their case if they are to save their faces and the integrity of the judiciary.
Mr Bwalya, in an interview yesterday in Lusaka, said the affected judges had an option to the whole episode if they felt hurt to either retire or,if they felt they could go through the tribunal, to wait for the outcome.
“There is nothing wrong in what the President decided to come up with as he has used the Constitution to put in place the tribunal.
“For now I can only ask the affected judges to be patient with investigations, trial and recommendations, but if they feel affected, they have an option to retire to save their faces and the judiciary. If there is nothing wrong, then they should just wait,” he said.
Mr Bwalya of KBF and Associates said those accusing Mr Sata of not using Act 13 of 1999 of the Judicial Complaints Authority should bear in mind that the President uses the Constitution in appointing judges and also used the same Constitution to suspend them.
He said the said Article stipulated that where an appointed tribunal advises the President that a judge should be removed from office for inability, incompetence or for misbehaviour, the President would?remove such a judge.
If the situation was the other way round, the President would revoke the suspension.
“Act 13 of 1999 is an Act of Parliament and it cannot be used to interpret the Constitution because the Constitution is the groomed norm of this country over other statutes.
“All other statutes must conform to the Constitution, and any other is invalid. So at the end, it is the President who chooses which prerogative to use,” Mr Bwalya said.
He said the President, having opted to use the Constitution, simply meant that Act 13 of 1999 fell away and that even if the President had decided to use this method, it would still eventually have gone to his office to set up a tribunal.
Mr Bwalya said the President’s decision to appoint a Malawian judge to chair the tribunal was according to Article 98 (3), (a) which stipulates that a President shall appoint a tribunal which would consist of a chairperson and not less than two other members, who hold or held high judicial office.
The Constitution does not specify who the chairperson should be but for purposes of transparency and fairness, Mr Sata decided to pick a judge who would understand the nature of the tribunal.
Another lawyer, Willy Mubanga said it was clear that President Sata opted to rely on the Constitution when he made his final decision to suspend Supreme Court Judge Phillip Musonda, and High Court judges Nigel Mutuna and Charles Kajimanga.
Mr Mubanga of Chilupe and Permanent Chambers said the President used the provisions of Article 98 to come up with the decision he deemed fit and advised everyone to visit the said article for better understanding.
He said the said Article clearly read that a judge of the Supreme Court, High Court, chairperson or deputy chairperson of the Industrial Relations Court, may be removed from office for inability to perform the functions of office, whether arising from infirmity of body or mind, inconsistency or misbehaviour and would be so removed in accordance with the provisions of this Article.
Mr Mubanga said Article 98 (3), (b) stipulates that the tribunal would inquire into the matter and report on the facts to the President and advise him whether the judge ought to be removed from office under this Article for inability or for misbehaviour.
He said the President was provided with certain information which he deemed needed investigations which could be done in two ways and in either way the constitutional one surpasses all.
“I think the process was clear as the President is obliged to do what he did when he suspended the judges and the truth will come out. Either way the law is very clear on the next course of action,” he said
[Times of Zambia]