This is in a case in which Judges Nigel Mutuna and Charles Kajimanga have taken the Attorney General to Court asking it to quash President Michael Sata’s decision to constitute a tribunal to conduct investigations of their alleged misbehaviour or incompetence.
President Michael Sata on April 30th suspended Justices Philip Musonda, Charles Kajimanga and Nigel Mutuna and appointed a tribunal headed by Justice Lovemore Chipoka of the Malawi High Court to investigate the alleged misbehavior of the three Judges.The terms of reference of the tribunal were to be based on the allegations that the trio interfered with a case involving the Post newspapers, Development Bank of Zambia (DBZ and JNC holding limited and Mutembo Nchito.
High Court Judge, Fulgency Chisanga, in her ruling granted the duo leave to apply for judicial leave which would operate as a stay of Mr Sata’s decision to appoint a tribunal and suspend the judges and any adverse measures against the applicants.
“Upon hearing counsel for the applicants and reading the affidavits of Judges Mutuna and Kajimanga respectively, it is hereby ordered that the applicants be and are hereby granted leave to apply for judicial review.
“And it is further ordered that the leave so granted shall operate as a stay of the decisions of his Excellency the President to appoint a tribunal, to suspend the applicants and any adverse measures against the applicants in relation to the performance of their Constitutional duties as duly appointed Puisne Judges pending determination of this matter or further direction by this court,” Judge Chisanga said.
The applicants, through their lawyers from Eric Silwamba and Company and Shamwana and Company alleged that it was incompetent to appoint a tribunal to investigate a Puisne Judge regarding a judgment delivered in a civil case when an appeal was pending in the Supreme Court.
They claimed that they would demonstrate that the action taken by the President was unreasonable.
The applicants in their originating notice of Order 53 of the 1965 Rules of the Supreme Court 1965 (White Book) stated that the President’s decision to appoint a tribunal was illegal, premature and consequently null and void as his powers were premised on Article 98 (2), (30) and (5) of the Constitution.
They also contended that Mr Sata erred in Law and usurped the Statutory Powers of the Judicial Complaints Authority and those of the Chief Justice when he purported to assert the role of an investigator on complaints against the duo who were judicial officers because that was the preserve of the Judicial Complaints Authority.
“His Excellency also erred in Law and usurped the Constitutional functions of the Supreme Court when he appointed a tribunal to investigate them when the appeal in the said case is effectively subjudice,” the lawyers said.
They said the decision to appoint a tribunal to investigate the applicants and suspending them respectively was premised on improper motive and characterised by political consideration and actual bias without proper investigations but anchored on unsubstantiated reports by people enjoying particular relationships with the President.
And Judge Kajimanga, in his affidavit stated that he received his suspension letter on April 30 this year without indicating reasons and yet during a press conference on the same day the President made public allegations that he interfered with the retrieving of alleged cases from their fellow judge, Albert Wood and misbehaved jointly with Justice Phillip Musonda and acted incompetently.
“That at no material times had the allegations against me ever been lodged or made known to the Judicial Complaints Authority as prescribed by the Constitution as read together with the Code of Conduct. I am advised by my counsel that the President prematurely invoked the provisions of the Constitution by establishing the tribunal as the complaints authority of first instance,” Judge Kajimanga said.
And Judge Mutuna, in his affidavit also stated that he was not given any reasons for his suspension and that the action was premature and against the Law.
Judge Mutuna invited the Court to exercise its inherent jurisdiction to review the whole court record in the Supreme Court where a notice of appeal had been duly filed.
The matter has been set for May 30, 2012 for hearing of the judicial review.