IN THE HIGH COURT FOR ZAMBIA
AT THE PRINCIPAL REGISTRY
HOLDEN AT LUSAKA

(Civil Jurisdiction)
IN THE MATTER OF  :  THE CONSTITUTION OF ZAMBIA, CHAPTER 1, VOLUME 1 OF THE LAWS OF ZAMBIA AND IN THE MATTER OF ORDER 53 OF THE RULES OF THE SUPREME COURT 1965, (WHITE BOOK), RSC 1999 EDITION) VOLUME 1 AND VOLUME 2

AND IN THE MATTER OF : ARTICLES 18 (9) AND 91 (2) OF THE CONSTITUTION OF ZAMBIA, CHAPTER 1 VOLUME 1 OF THE LAWS OF ZAMBIA AS READ WITH THE PROVISIONS OF THE JUDICIAL (CODE OF CONDUCT) ACT NO. 13 OF 1999 AS AMENDED

AND IN THE MATTER OF : ARTICLES 95(1), 98(2) AND (3) OF THE CONSTITUTION OF ZAMBIA, CHAPTER, VOLUME 1 OF THE LAWS OF ZAMBIA AS READ WITH ARTICLE 139(2) AND (7) THE CONSTITUTION OF ZAMBIA, CHAPTER 1 VOLUME 1 OF THE LAWS OF ZAMBIA AN IN CONSONANCE WITH THE PROVISIONS OF THE INQUIRIES ACT, CHAPTER 41, VOLUME 4 OF THE LAWS OF ZAMIBA

AND IN THE MATTER OF : ARTICLE 91(3) OF THE CONSTITUTION OF ZAMBIA, CHAPTER 1 VOLUME 1 OF THE LAWS OF ZAMBIA JUDICATURE ADMINISTRATION ACT, CHAPTER 24, VOLUME 3 OF THE LAWS OF ZAMBIA

AND IN THE MATTER OF : ARTICLE 123 OF THE CONTITUTION OF ZAMBIA, CHAPTER 1 VOLUME OF THE LAWS OF ZAMBIA AS READ WITH THE PROVISIONS OF THE SERVICE COMMISSIONS ACT, CHAPTER 259, VOLUME 15 OF THE LAWS OF ZAMBIA

AND IN THE MATTER OF : ARTICLES 92 91) AND 94(1) AND (6) OF THE CONSTITUTION OF ZAMIBA AS READ WITH THE PROVISIONS OF SECTIOSN 23, 24 AND 25 OF THE SUPREME COURT ACT, CHAPTER 25, VOLUME 3 OF THE LAWS OF ZAMBIA

AND IN THE MATTER OF : SECTION 12 OF THE STATE PROCEEDING ACT, CHAPTER 71, VOLUME 6, OF THE LAWS OF ZAMBIA

AND IN THE MATTER OF : AN APPLICATION FOR JUDICIAL REVIEW

AND IN THE MATTER OF :  A DECISION BY HIS EXELLENCY THE PRESIDENT OF THE REPUBLIC OF ZAMBIA MADE ON THE 30TH DAY OF APRIL, 2012

BETWEEN:

NIGEL KALONDE MUTUNA (MALE)                                       1ST APPLICANT

CHARLES KAJIMANGA (MALE)                                               2ND APPLICANT

AND

THE ATTORNEY GENERAL                                                      RESPONDENT

Before Hon. Mrs. Justice F. M. Chisanga sitting at Lusaka this 24th day of May, 2012

For the 1st & 2nd Applicants: E. Silwamba S.C., A. J Shonga, Junior State Counsel, J. Jalasi, Mr. Linyama

For the Respondent: Mr. M. Mwenye SC Solicitor General, Ms M Ndhovu Assistant Senior State Advocate, Mrs. P. Hlazo Acting Assistant Senior State Advocate, Mrs. J. Tamba State Advocate

RULING

Cases referred to:

• Fredrick Jacob Titus Chiluba vs Attorney General 2003 Z.R. 153.
• Shilling Bob Zinka vs Attorney General 1990-91 ZLR P.73.
• C and S Investments Ltd Ace Car Hire Ltd, Sunday Maluba vs Attorney General SCZ judgment 2004 Z.R. 216.
• Aaron, Chungu Faustin Kabwe vs The Attorney General SCZ/8/51/2012.
• Inland Revenue Commission vs National Federation of Self-employed and Small Scale Businesses Ltd 1982 AC page 617 at page 653.
• Mpulungu Harbour vs Attorney General.
• Kasai Mining & Exploration Ltd vs The Attorney General SCZ Appeal No. 195 of 2006.
• Kasote vs The 1977 ZR P. 75.
• Nyampala Safaris Zambia Ltd & Others vs Zawa & Others 2004 Z.R. 49.
• Godfrey Miyanda vs Attorney General 2009Z.R.
• Mwamba and Another vs Attorney General of Zambia 1993Vol 3 P. 166.
• R vs Secretary of State for Education & Science Ex-Parte Avon Country Council (1991) 1 ALL E.R. 282.
• Kabimba vs Attorney General & Lusaka City Council 1995-1997 Z.R 152.

Legislation referred to:

• The Constitution of Zambia.
• The Judicial (Code of Conduct) Act No. 13 of 1999 as Amended by Act No. 13 of 2006
• Other works referred to:
• Judicial Review by Michael Copperstons QC James Gondie QC Butter Works 2nd Edition.
• Halsbury Laws of England, Vol. 37, 4th Edition, paragraph 520.

This is an application by the Respondent to set aside an Ex-parte order granted to the Applicants on the 16th May, 2012, for leave to apply for Judicial Review. The Judicial Review sought is in respect of the decision of His Excellency The President of the Republic of Zambia, made on the 30th day of April, 2012, to appoint a Tribunal to investigate the Applicants and to suspend the said Applicants. The leave granted to the Applicants operated as a stay of the Decisions of His Excellency the President of the Republic of Zambia 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 serving in the High Court of Judicature for Zambia pending the full determination of this matter or until any further decision by this Court.

On the 17th day of May, 2012, the Respondent filed a Summons to Discharge Leave to Commence Judicial Review Proceedings pursuant to order 53/14/4 and 53/14/62 of the Rules of the Supreme Court (White Book) 1999 Edition. The ground on which it is sought to discharge the said leave is as follows:
That the substantive application will clearly fail in view of the Provisions of article 98 (3) of the constitution of the Republic of Zambia and particularly;
That His Excellency the Republican President acted within his express constitutional powers as contained in Article 98 (3) of the Constitution of the Republic of Zambia when he decided to appoint a Tribunal to inquire into conduct of the Applicants. The decision of the Republican President was therefore intra vires his express constitutional powers.

That there is no procedural impropriety whatsoever on the part of the Republican President as Article 98 (3) of the constitution does not require the President to hear the Applicants before he decides that the question of removing them ought to be investigated. Article 98 (3) (a) and (b) mandates the Tribunal to be the medium through which the Applicants will be heard. The Applicants have therefore come to the Court prematurely contrary to the provisions of the constitution.

That further to the above the Judicial (Code of Conduct) Act No. 13 of 1999 is Subsidiary to the provisions of Article 98 (3) of the Constitution and cannot be used to fetter the Republican President’s power under the Constitution.

That the decision of the Republican President to suspend the Applicants and to appoint a Tribunal to inquire into their conduct is not unreasonable in the Wednesbury sense or at all and the Applicants have not displayed anything to exhibit unreasonableness in the Wednesbury sense.

That the power to appoint a Tribunal by the Republican President is a constitutional check on the judiciary and the judiciary cannot hear a matter touching on the check on its power at the time and in the manner suggested in the application because it will become a judge in its own cause endangering the well established principle of nemo judex in sua causa or no man should be a judge in his own cause.

The summons are supported by an affidavit sworn by the Learned Solicitor General, Mr. Musa Mwenye, state counsel in which he has deposed that he verily believes that the application for Judicial Review will clearly fail on the basis of the Law and the authorities. A certificate of urgency was filed with the application and on that basis, it was listed for hearing at 14:30 hours on the 17th May 2012. At the hearing Mr. Shonga Junior State Counsel sought guidance from the Court in view of the statements being made and made particular reference to the Honourable Minister of Justice who had given a press conference on the matter. The Learned State Counsel expressed his clients’ concerns and sought the protection of the Court.

When asked to comment on the issue the Learned Solicitor General Mr. Musa Mwenye informed the Court that he was not privy to the statements allegedly made by the Minister of Justice and left it to the court to deal therewith. I accordingly directed that no press statements be issued on the matter, it being subjudice and advised the Solicitor General to impress upon his clients the need to refrain from making any comments on the process before the Court.

In arguing the application, the Learned Solicitor General informed the Court that the application is premised on Order 53/14/4 as well as 53/14/62 of the RSC White Book of 1999 and submitted as follows: That the Republican President has constitutional power to suspend the applicants and appoint a Tribunal under the provisions of article 98 which is complete in itself as far as the Republican President is concerned. He submitted that it could not be argued that the exercise of power by the President was coloured by illegality for neither the constitution nor any other law limits the powers of the President under Article 98: Reliance was placed on the case of Fredrick Jacob Titus Chiluba vs Attorney General 2003 Z.R. 153.[1]

On the grounds of procedural impropriety, learned counsel contended that the Republican President is under no obligation whatsoever to give the Applicants a hearing before he decides whether an inquiry is necessary. According to counsel, the discretion conferred on the President is wide. He placed reliance on the case of Shilling Bob Zinka vs Attorney General 1990-91 ZLR P.73[2] and went on to state that the Tribunal is mandated to receive evidence from the applicants and that it has not yet been decided that the Applicants be removed from office of High Court judge nor has the tribunal made any recommendations. He went on to contend that the tribunal process is an investigation and it is not tenable to employ judicial proceedings to curtail investigations and to support this proposition reliance has been placed on the case of C and S Investments Ltd Ace Car Hire Ltd, Sunday Maluba vs Attorney General SCZ judgment 2004 Z.R. 216[3] and Aaron, Chungu Faustin Kabwe vs The Attorney General SCZ/8/51/2012.[4]

He contended further that the Applicants have not shown that the President’s decision was Wednesbury unreasonable. The Court has been urged to take judicial notice of the fact that by virtue of his office, a Republican President may be seized with information that is not in the public domain. He has pressed the Court to discharge the leave granted ex-parte as the case had no merit at the substantive hearing.

The application was opposed and reliance was placed on the documents filed on behalf of the Applicants. Learned State Counsel Mr. Abyudi Shonga remarked that while five points had been raised in the summons only three were argued and he would therefore restrict his arguments to the three points argued by Mr. Mwenye. Learned Counsel observed that the Solicitor General appeared to be responding to the main Judicial Review matter and yet the matter was at leave stage. He referred to order 53/14/21 of the white book and submitted that the Court is required to form a prima facie view based on the evidence available before it as to whether there is a prima facie case fit for further investigation and that at that stage, the evidence would not be as detailed as that expected at a full inter-parte hearing. He drew the Court’s attention to the cases of Inland Revenue Commissioner vs National Federation of Self-employed and Small Scale Businesses Ltd 1982 AC page 617 at page 653,[5] as well as Mpulungu Harbour vs Attorney General Appeal No. 100/2006.[6]

He contended that the Court was on firm ground, having relied on the available documentation before it, in granting leave to move for Judicial Review. In distinguishing the first from the second stage, counsel asserted that both parties were required to submit extensively and provide the Court with requisite evidence in support of their positions at the second stage. He referred the Court to the case of Kasai Mining & Exploration Ltd vs The Attorney General SCZ Appeal No. 195 of 2006[7] as well as order 53/14/62 (ii) and  (iii).

Mr. Shonga went on to state that whereas leave granted could be discharged, a serious caveat was placed on that power, suggesting that the Respondent was required to say that the application will surely fail and not that it is likely to fail. He urged the Court to approach the application in the manner outlined in Judicial Review by Michael Supertone QC and James Goldy QC, Butterworths 2nd Edition and stressed the point that the need to submit in detail did not arise at this stage because all the Court needs to satisfy itself is that there are questions to be investigated. He expressed the view that the Applicant need not satisfy the Court that it will succeed on all the grounds, but that it has brought to the Courts table questions that prima facie appear legitimate enough and therefore warrant further investigation.

Learned Counsel contended that to successfully parry this application, all the Applicants needed to show is that there were questions and substance in these grounds fit for the Court’s consideration at the main hearing. He reasoned that regarding the grounds of illegality, questions that arise and require the Court’s determination are:

Is article 98 (3) a stand alone clause in the Republican Constitution?
If the powers under article 98 (3) of the constitution are not subject to any other clause, why is this article not expressed in terms akin to the words employed in article 98 (1) which starts with the words “subject to the provisions of this article?
Is article 98 (3) intended to be read together with article 91 (2)?
What bearing do the provisions of article 139 sub articles 7 and 8 have on article 98 (3)?
Is there a connection between article 91 (2) and the Judicial Code of conduct Act No. 13 of 1999?
Does the Judicial Code of Conduct present itself as an essential ingredient or sine qua non as the President exercises his jurisdiction to appoint a tribunal?
Is there more that must happen before the President appoints a tribunal?
Has the President lawfully and properly exercised his jurisdiction to appoint a tribunal?
Has the question of the removal of the applicants from office arisen?
When and how would the question of removing the applicants from office arise?
Was it lawful for His Excellency to appoint a tribunal to investigate misbehavior or incompetence on the part of the applicants when there are two appeal pending in the Supreme Court?

Learned Counsel claimed further that the following were some of the questions that arise on the second ground:

Do the rules of natural justice apply given the facts of this case?
Should the applicants have been heard through the Judicial Complaints Authority before the tribunal was set?
Was there bad faith exhibited by the Republican President when he made pronouncements of misbehavior and corrupt disposition before an investigation was undertaken?
What bearing does the provision in the Judicial Code of Conduct Act requiring that any complaint against a judicial officer shall be investigated and conducted in a confidential manner have on this matter?
Mr. Shonga submitted further that the following are some of the question that will arise on the third ground.
Is the decision by the Republican President to appoint a tribunal to investigate the applicants premised on political considerations?
Is the decision unreasonable in the Wednesbury sense?

Learned counsel contended that all the above questions were directly related to the grounds before the Court and they clearly cannot be determined at this stage. That to obtain the order discharging leave, the Respondent should be able to demonstrate that none of these questions are fit for consideration. He submitted with respect that there were already sitting before the Court real questions whether it be the interpretation of the constitution or the provisions of the constitution and that this is not an appropriate time to consider discharging leave and preventing the issues raised by the applicants from seeing their day in Court, the respondent having not introduced new evidence with was not before the Court at the time the Court granted leave. He has urged the Court to dismiss the application with costs and confirm the return date of 30th May, 2012.

Mr. Jalasi, co-counsel with Mr. Shonga set out to distinguish this case from the Fredrick Jacob Titus Chiluba case and contended that in the Chiluba case cited by the Solicitor General, what was in issue was the provisions of Article 43 (3) of the Constitution. That the difference with this case is that there is another article referred to, being article 91 (2) which makes reference to another piece of Legislation which would regulate the code of conduct of members of the judiciary.

Further, that parliament in its wisdom had gone further to enact a piece of legislation which regulates the conduct of members of the judiciary. Learned counsel proceeded to argue that in the Chiluba case, the only provision that was in question and on which the Court was asked to give an interpretation was article 43 (3) and there was nothing in the National Assembly (Powers and Privileges Act) CAP 12 of the laws of Zambia which made provision for the lifting of immunity and nothing in the standing orders to the National Assembly prescribed the removal of the Immunity. Learned counsel submitted that in that case, the Supreme Court was on firm ground to restrict itself to the provisions of Article 43 (3). Counsel’s contention is that in this case, there are questions which require further investigation relating to the provisions of the Judicial Code of Conduct.

Mr. Jalasi submitted further that the investigations of the tribunal were not criminal in nature and as such are amenable to judicial review, contrary to the Solicitor General’s submission that the Court has no jurisdiction to grant the relief sought.

In response to the opposing arguments, the Learned State Counsel argued that article 91 (2) is actually a prescription for judges and not the President. That the judges were the ones to conduct themselves in accordance with the code of conduct promulgated by parliament. Counsel insisted that there is nothing in article 91 (2) that limits the powers of the President as contained in article 98 (3) of the constitution. That the decision the applicants have applied to review is that of the President and not the judges.

In further response, the Solicitor General  submitted that precedent showed that it is not tenable for an Applicant to employ judicial review proceedings to curtail investigations of any kind and that this is seen in employment cases where leave for judicial review proceedings has not been granted because the Applicant has not exhausted the administrative channels open for being heard.
Mr. Mwenye’s argument was that the proceedings are not at leave stage but beyond, the Court having considered the questions listed by learned counsel on the 16th May, 2012, when the application for leave was made. Further that the Respondent had discharged the onus by showing that none of the grounds were tenable at law no matter what may be said about the facts. Counsel further submitted that having regard to order 53/14/4, the application before the Court had not been substantively opposed. That in view of the constitutional provisions and the very clear Supreme Court judgments by which the Court is bound, the review will clearly fail. He went on to add that it was not enough to simply state that there were questions fit for further consideration. Further, that the provisions under which this application has been made required the Respondent, of necessity, to very delicately delve into the merits in order to demonstrate that the Respondent has shown that the application will surely fail. Council reiterated his prayer that the Respondent’s application be granted.

I have considered the arguments advanced on both sides. Order 53/14/4 of the Rules of the Supreme Court 1999, vol. 1 empowers the Court to discharge leave granted to an Applicant on an ex-parte application for leave to move for judicial review. Such applications are discouraged and should only be made where the respondent can show that the substantive application will clearly fail.
The learned authors of the work Judicial Review referred to by Mr. Shonga S.C. state as follows at 18.5 and I quote the relevant portion:
“…….. The way in which the Court should approach an application to set aside leave has been considered recently in a series of cases. In R vs District Auditor No. 10 Audit District ex P judge J followed the Approach of Otton J in R vs West Minster City Council, ex p. Zest fair Ltd and stated that the power to set leave aside should be exercised sparingly and only in wholly exceptional circumstances where the proceedings that had been commenced were fundamentally misconceived.

On this basis, in the vast majority of cases the more appropriate course will be to proceed with the hearing of the application proper so that there can be an adjudication on the merits. Rose J went on to say that applications to set leave aside should be positively discouraged. However, the position would be different if it is clear both that the whole application is fundamentally flawed and that the respondent had or was likely to suffer detriment if the matter was not concluded as quickly as possible…… In R vs Secretary of State for the Home Department, exp Al-Nafeesi, a similar approach was adopted with Scheimann J saying that leave should only be set aside where a judge was satisfied that the applicant had absolutely no arguable case…..”

The above statements aptly illustrate the burden on a Respondent who proceeds pursuant to order 53/14/4. He must show that an Applicant’s case is totally hopeless and bound to fail and not worthy of further investigation at a substantive hearing. Leave may therefore be set aside on the following grounds:

Serious material non-disclosure;
Where an alternative remedy was available but not used by the applicant e.g an appeal;
Undue delay on the applicant’s part;
Where the proceedings are not properly constituted;
Failure to demonstrate an arguable case;

The Respondent must therefore show that the substantive application to seek Judicial Review is fundamentally flawed and bound to fail.

At the outset, it must be stated that the substantive application for Judicial Review herein is premised on the interpretation or construction of Articles 98 (2), (3) and (5) as well as Article 91 (2) of the Constitution of the Republic of Zambia.  The Applicants claim that the two Articles have to be read together and not in isolation.  That the provisions of the Judicial (Code of Conduct) Act No. 13 of 1999 provides for a sine qua non (condition precedent) for the exercise of the President’s Power in issue.  In other words, they claim that the Judicial Code of Conduct is an essential element or condition for the exercise of the President’s power under Article 98 (3).
Quite clearly, the Applicants seek construction of the Articles and the Law in issue. The Solicitor General asserts, in the face of these claims that the application for Judicial Review will fail because, according to him, Article 98 (3) and (5) are clear and should not be interpreted with glosses and interpolations as was held in the case of Frederick Jacob Titus Chiluba vs. Attorney General.

He has pressed the Court to discharge the Ex-parte order granting leave to the Applicants to move for Judicial Review. In so doing he has thereby delved into the merits of the matter.
Whereas I accept that this Court is bound by judgments of the Supreme Court of Zambia on points of Law as was held in the case of Kasote Vs The People,[8] yet I agree with Mr. Jalasi’s submission that in the Chiluba case only one Article of the Republican Constitution fell to be construed. That however, is not the case in this matter. The reason is that by Article 91 (1) the composition of the judicature is set out while Article 91 (2) provides as follows:
91. (2) the Judges, members, magistrates and justices, as the case may be, of the courts mentioned in clause( 1) shall be independent, impartial and subject only to this constitution and the Law and shall conduct themselves in accordance with the Code of Conduct promulgated by Parliament. (Underlining mine for emphasis).

The preamble to the Judicial (Code of Conduct) Act states that it is: “An Act to provide for the Code of Conduct for officers of the judicature pursuant to Article Ninety One of the constitution and for matters connected with or incidental” to the foregoing”.

The code that binds the Judges therefore is that prescribed in the Judicial (Code of Conduct) Act No. 13 of 1999 as amended by Act No. 13 of 2006.  Article 98 (2) states the following:
98. (2) A Judge of the Supreme Court, High Court, Chairman of the Industrial  Relations Court may be removed from office only for inability to perform the functions of office, whether arising from infirmity of body or mind, Incompetence or misbehavior and shall not be so removed except in accordance with the provision of this Article. (Underlining mine for emphasis).

The Judicial (Code of Conduct) Act aforesaid addresses the issue of competence and prescribes the conduct of Judges and it appears therefore that the conduct for which they may be removed is that which is contrary to the Law as in Article 91 (2) provided and the Law in issue is the Judicial Code of Conduct. Section 24 of the Judicial Code of Conduct sets out the functions of the Judicial Complaints Authority and these are:  To receive any complaint or allegation of misconduct, and to investigate any complaint or allegation against a judicial officer. After investigating the complaint, the Authority is required to submit its findings and recommendations to the appropriate authority. In the case of a Judge, it is the Chief Justice, who may admonish the Judge concerned, and in the case of a breach requiring removal under Sub Article (2) of Article 98 of the Constitution, the Chief Justice is required to inform the President who upon due consideration may then invoke the provisions of Article 98 of the Constitution.

Section 25 of the Judicial (Code of Conduct) is in the following terms:
25. (1) Any member of the public who has a complaint against the judicial officer or who alleges or has reasonable ground to believe that the judicial officer  has contravened this Act shall inform the Authority (underlining mine for emphasis).

These provisions suggest that there is an interplay between Articles 91 (2) and the Judicial Code of Conduct on one hand as well as Articles 98 (2), (3) and (5) on the other. That in fact, there could be a condition precedent for the President to invoke his power under Article 98 (3) of the Republican Constitution.

The questions first presented to my mind at the time I considered and found the suggested interplay between Articles 91 (2) and 98 (2) (3) and (5), which persuaded me that there was an arguable case fit for further investigation at a substantive application for Judicial Review remain un addressed after the Solicitor General’s attempt to persuade the Court to discharge the Exparte Order for Leave to Move for Judicial Review. In view of the unresolved questions on my mind, I am not satisfied at this stage that Article 98 is a stand alone Article and must be interpreted as such.
In the absence of a full hearing with arguments from both sides, it would be premature to uphold the Solicitor General’s argument that Article 98 (2) (3) and (5) is complete and self contained when this has not been clearly established. The decision in the Chiluba case, prayed in aid by the Solicitor General in my considered view does not provide an answer to the application made by the Applicants. To take refuge in that decision at this stage, is to abdicate the court’s function to hear and determine the substantive application whether or not there was procedural impropriety on the part of the President when he invoked the provisions of Article 98 (2) without any preliminary investigations of the complaint as provided by the law promulgated pursuant to Article 91 (2).

It has been submitted that the Applicants cannot be heard to argue that the President’s decision to investigate the question of removal of the Judges is wednesbury unreasonable, nor can it be contended that there was irrationality on the part of His Excellency to decide as he did and to appoint the Tribunal to investigate the removal of the Judges as the President has a wide discretion in the matter pursuant to Article 98 of the constitution.

It is pertinent to state here the Applicants’ allegation on the ground of irrationality. They allege that the decision of His Excellency the President to appoint a Tribunal to investigate the Applicants and suspend them respectively, was premised on improper motives and characterized by political considerations and actual bias without proper investigations but anchored on unsubstantiated reports made by persons that enjoy particular relationships with His Excellency the President of the Republic of Zambia. This allegation relates to the provisions of the Judicial Code of Conduct promulgated pursuant to Article 91 of the Constitution of Zambia. That being the case, the prima facie impression formed on the material before me at Exparte stage remains undispelled due to the suggested interplay between Articles 91 and 98 as pointed out above.

I must emphasize that the test to be applied by the Court when presented with an application for leave to move the Court for Judicial Review is well settled. This is whether there is an arguable case presented by the Applicant. The learned Authors of Halsbury Laws of England Volume 37, 4th Edition para. 570, state that an Applicant need only show, that he has a prima facie or arguable case or reasonable grounds for believing that there has been a breach, or threat or failure to perform a public duty. According to Lord Diplock in the case of Inland Revenue Commissioners and National Federation of Self Employed and Small Businesses Limited cited above the “threshold” question is whether upon directing my mind to the application I can form a prima facie view in favour of the Applicants which view may alter on further consideration in the light of the further evidence that might be before the Court at the second stage. When considering the application for leave, I directed my mind to the application and formed a prima facie view in favour of the Applicants. That view remains undispelled even after the Solicitor General’s application. This therefore is a matter that calls for consideration after a full hearing.

It is elementary that Judicial Review is concerned, not with the merits of the decision but with the decision making process. The purpose of Judicial Review is to ensure that the individual is given fair treatment by the authority to which he has been subjected, and it is not part of that purpose, to substitute the opinion of the individual Judge for that of the authority constituted by Law to decide the matter in question. See Nyampala Safaris (Z) Limited and Others vs. Zawa and Others.[9]

My jurisdiction is therefore confined to the above stated parameters. The application lodged by the Applicants relates to procedural issues and not the decision itself. It is therefore competent for this Court to enquire into the issues raised by the Applicants although the decision in issue was made by His Excellency The President of Zambia. It was held by the Supreme Court of Zambia in the case of Godfrey Miyanda v The Attorney General[10] inter alia as follows: “………Notwithstanding the immunity granted by Article 43 to a sitting President, there is nothing to stop a court from determining whether the President in the discharge of his duties has acted within the Law, and granting any remedies found to be appropriate against the government. This position is fortified by the State Proceedings Act, which has brought the President within the realm of a public officer. The President is not above the Law….” The said court had earlier affirmed, in the case of Maxwell Mwamba, Stora Mbuzi v Attorney General,[11] that the exercise of constitutional power is reviewable by the courts in proceedings challenging compliance and validity. These decisions confirm the competence of these proceedings.

Finally, I do not agree with the Solicitor General’s submission that the investigations that are intended to be conducted by the Tribunal ought not to be stayed simply because the process is investigative in nature. That proposition is not correct as the investigations pertain to the removal of the Judges from office and are not criminal in nature. The effect of the judgment cited in support of this proposition is that courts cannot be used to stop a criminal investigation. Nowhere in that judgement is reference made to investigations not criminal in nature.

The analogy drawn by learned Counsel between this case and employment matters is misplaced as employment matters fall in the realm of private law and are not therefore helpful on the point.  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 for if a stay is not granted, this matter will be rendered merely academic and the Applicants denied the very justice they seek from this court under these proceedings. Further, I am unable to see the administrative channels that the Applicants have not exhausted, it being clear that the Tribunals advice to the President after the said investigations concludes the matter.

The sum of the Applicants contention is that the procedure required to be followed before the President can invoke his power pursuant to Article 98 (3) of the constitution was not followed. That by reason thereof, procedural un fairness was occasioned to the Applicants as they were deprived of their right to be heard, which is always accorded by the Judicial Complaints Authority when conducting initial investigations upon a complaint received against a Judge or any other Judicial Officer pursuant to Section 24 of the Judicial Code of Conduct Act. That the President circumvented the investigatory statutory power of the Judicial Complaints Authority and extraneous considerations actuated the constitution of the tribunal.
There is force in these argument as regards the grounds of illegality ,procedural impropriety and irrationality, undeniably giving rise to a strong prima facie case fit for further consideration at a substantive hearing for Judicial review  It has not therefore been demonstrated  that the application for Judicial Review is fundamentally misconceived and bound to fail at the substantive hearing.

I wish to take this opportunity to comment on misguided statements made by the Honorable Minister of Justice through the media, judicial notice of which I take, following the grant of leave. The said minister has made pronouncements to the effect that decisions made by the state are not amenable to be stayed  in judicial review proceedings under 0.53. The correct position is  that although the effect admittedly is one restraining state actions yet, stays can and have been granted in Zambia and England in judicial review proceedings. Case law on the issue abounds. See R V Secretary of State for Education and Science Ex – parte Avon Country Council[12] and Kabimba vs Attorney General and Lusaka City Council.[13] The law is settled. It is likewise elementary that judges are entitled to enjoy fundamental human rights under the Republican Constitution. They may seek redress from a court of law when they have a justiciable grievance.

It is therefore misguided to characterize the consideration by the Court, of a matter duly issued out of the High Court as anarchy. It is of particular concern that the Honourable Minister of Justice, State Counsel, launched an attack on the court without verifying the applicable law on stay of state decisions in judicial review proceedings. This conduct is unbecoming of a person on whom the lofty status of state counsel has been conferred and in fact demeans that eminent status. The statements were un reservedly contemptuous of the court and the fact that the matter is subjudice was no deterrent at all .Professional ethics were seemingly sacrificed on the alter of expediency. Such conduct must be condemned strongly for it is demeaning to the Legal profession.
I revert to the application to discharge leave to move the court for judicial review.

No new material has been brought to the court as earlier observed. The merits of the case were delved into by the solicitor general prematurely as rightly pointed out by Mr. Shonga .Be that as it may the threshold test applied by the court when considering the exparte application for leave to move the court for judicial review remains satisfied upon considering the present application. I therefore dismiss the application with costs.

Leave to appeal is granted. In the event that no appeal is lodged, the substantive application will be heard on the 30th day of May 2012 at 09:00 hrs.
Dated the 14th day of May 2012
______________________________
HON. F. M. CHISANGA
HIGH COURT JUDGE