THE State has lodged a notice of appeal against the High Court ruling of a stay granted to two High Court judges, Nigel Mutuna and Charles Kajimanga.
The two judges had applied for judicial review and a stay of their suspensions and proceedings of a tribunal set up by President Michael Sata to investigate them on allegations of impropriety.
Attorney-General, Mumba Malila in a notice of appeal filed in the Supreme Court yesterday stated that the State was not satisfied with the ruling by High Court Judge, Fulgence Chisanga.
“Take notice that the appellant here in the Attorney-General being dissatisfied with ruling of Judge Chisanga delivered on May 24 this year, intended to appeal to the Supreme Court against the whole ruling dismissing the appellant’s application to discharge leave to apply for judicial review,” he said.
Justices Mutuna and Kajimanga have dragged the State to court claiming that their suspensions and subsequent appointment of the tribunal by President Sata were illegally done.
The two were granted a stay to prevent the tribunal from sitting pending full determination of the matter by the High Court.
Ms Justice Chisanga had also granted the duo leave to apply for judicial review which would operate as a stay of Mr Sata’s decision to appoint the tribunal.
In her ruling, Justice Chisanga dismissed, with costs, the State’s application to set aside the stay, saying the purpose of judicial review was to ensure that the individuals were given fair treatment.
“The respondents have not demonstrated that the application hearing for judicial review is fundamentally misconceived and bound to fail at the substantive hearing. I, therefore, dismiss the application with costs,” she had said.
[Times of Zambia]
lol… we shall executive vs judiciary
Pliz Malila just swallow the humble pie and cancel your appeal, it will fail again.
Every day PF just make me nauseated I feel lie throwing up . Why is Sata busy protecting thieves bene membe and nchito and this ka Malawian guy is busy chewing our tax payers money I can’t wait for2016 so that HH or Mumba take over we need some form of education for one to b president not this drummer w see everyday
Keep on dreaming about HH and Mumba. I wish you well in wishful thinking. Why is it that its only fair for others to be heard in court while it is not fair for M’membe and Nchito to be heard too. Such reasoning sucks.
Who said Mnemba and Nchito are the ones who are appealing? These clowns did not appeal to the Supreme Court – they instead appealed to Uncle Satana who then constituted the illegal Tribunal. It is the State which is appealing to the Supreme Court against the Stay granted to the two judges. Iwe kaponya learn to read! Or do you want the story to be written in Bemba for you to understand it?
the appeal will be dismissed in the supreme court. the state’s way it wont happen!
This is really bad judgement by the legal team around the president. The case is clear, the president violated procedure and that is what the judgement was about. Can’t they accept that and do the right thing?
The Sensible thing and work around this issue will be to just lift the suspension of the judges and then make the tribunal goal ahead as as investigation into the whole judiciary and Mnembe and Nchito’s case can just be one of the submissions.
These guys are making a simple situation unnecessary complex. The Supreme court is going to throw this case out. Judge Chisanga judgement was solid and sound unless there is something we don’t know and certainly the AG has not clearly said it apart from hide behind legal jargon
exactly… we wait and see!
You r right!!…Perfect analysis and observation. Sata should fire Mwenye, JustJustice Minister-Zulu and this Malila who does not read law updates in a democracy, they are misleading the president!!
Does Moosa, Malaila, Mmombo, Mutombe sisters, et al have wives and children – I am just wondering why their immediate families have not spoken to these guys over this matter.
Oh dear! Why don’t you want the two judges to have their case heard in the high court? Why are so intent on short circuiting the legal process? Amuikete, eiish!
Mumba Malila, SC, yours is a legally hopeless case and cause. It can only make sense in PF politics not legally. Are you trying to gain the new status of “State Cancel” which your colleague Hon Sebastian Zulu recently acquired? Remember that the accolade is only given to those whom the Post have condemned as corrupt Ministers. Please don’t sink so low, you are one of our respected legal brains.
When this case fails again in Supreme Court Malila will cry for he will be fired for incompetence ,bacause his boss Cycle Mata will not stomach the emabarrasment.Now for how long will Chikopa be drawing our tax payers money for doing nothing,after 2016 someone will personally pay from his/her pocket for Chikopa’s expenditure in Zambia.
What does Aginast mean LT?
what are the grounds for this appeal????
not all rulings will satisfy you ba AG. If you expect to be satisfied all the time, mukalashokwafye.
MR Malila can you please share with us the grounds for appeal. dont just say we are disatisfied, explain the points of Law that judge chisanga misinterpreted to make you disatisfied
In the mean time Judge Chikopo is having a holiday there @ your expense.AG that is so risky a decision if the Supreme Court upholds the decision of the High court then you are back on the streets.
useless
#11 and #13 , that is my question as well. What are the grounds of appeal, can this Attorney General inform the nation the basis for his appeal than just say he was not satisfied. He should not treat the citizenry who pay his salary as if they are kids. Already this case was dismissed with costs and it is tax payers money to pick up the tab and why should he take this failed thing further and incur even more costs in the name of he is not satisfied, he needs to explain to us the citizenry the grounds of his appeal than abuse tax payers money. No doubt if this thing fails at Supreme court, there will be costs there too. This irresponsibility in the name of patching egos by the so called State Counsel (SC) or is it State Cancer is an abomination and needs to be confronted
Once again i say, our illiterate judge flatulence chisanga errored at law, morality, common sense. She was more interested in embarrasing the learned justice minister than delivering good judgement that would not be disputed by both sides. The language she used in her shit judgement left much to be desired. she spoke as if the learned justice minister disappointed her for some good looking lady. the illiterate judge’ s judment was so malicious that only cheap minds are claping.
All you Zambians above are just wallowing in vexatious arguments that lack not only legal basis but also clearly devoid of any intellectual substance. Section 16 of the State Proceedings Act states, & quote: “An INJUNCTION may not be grunted against the state.” Now, by ordering that the tribunal should not take off as Chisanga did, even an ***** with very basic legal knowledge will attest to the fact that this order of stay is effectively tantamount to a mandatory INJUNCTION. That is clearly in contravention of the Act, it’s simply unlawful. To therefore root for Chisanga & the suspended judges is equal in effect to engaging in the the
most stupidous thing I have ever heard, & you call yourselves learned! Linja tuni!
read the Kabimba case. A stay can be granted against the state. Don’t embarrass yourself
You got it all wrong bro…. Section 16 of the state proceedings Act states” the words MAY ….the catch word is MAY NOT ……meaning it can be allow. It’s different if the section expressly said SHALL NOT. Meaning never to be allowed. Therefore Judge Chisanga is right and her judgement is on solid ground. Revisit your English grammar(May and Shall ,don’t hold the same meaning, )
Mulenga, sort out your English before you begin to understand Law!
Plz ba mulenga . . . . mwenye himself representing the AG agreed tthat this is not an injuction. U look f00lish man!
King Sata should suspend Judge Fulgence Chisanga for bad ruling, and set up a tribunal. I just wonder which other dull nation can send a judge to understand Zambian fiasco.
Where is Judge Musonda?
be wise
# 3, CHI OCTOPUS paul BWALYA, U BACK AGAIN RANTING. THE WORLD CUP IS VERY FAR AWAY, NO ONE NEEDS YOUR DEMONIC RESULTS PREDICTIONS USING VOODOO. IF U A TARGETING THE EURO 2012, SOOORRY! THEY ARE GOING TO USE AN ELEPHANT COZ OCTOPUSES A SMELLY AND TOO DEMONIC
The Govt taking itself to court. This is comedy. There are three arms of Govt. The legislature, execuitive and the legal one. He the triple heritage taking itself to court.
Pop corn please! Am watching Ukwa. Can come and join me if you do not mind.
I want to ask all bloggers to give me an honest answer, does the constitution give the president such powers or not. If it does what is the argument? Ist a question of procedure or mare politiking by narrow minded people.
The president is not above the law. He may have the powers to set up a tribunal but he must go about it without violating the procedure established by the constitution otherwise you will have anarchy or dictatorship. If he had follwed the procedure the tribunal would be up and running without calling for judicial review.
The president can not just wake up and do a piki piki na piki doli and settles for poor Mr tony Blair – then signs an execution order . . . then u are hanged ! .he can only do it after other processess have taken place ..uli chikopo
Bold statements at the expense of common sense make a man look stupid. It is the same with vexatious court rulings, they leave judges stack naked (njenje, chintako, ubuchende etc). Looking at the postings above, trying too hard often comes with perils. One such is this MMD Chiefbootlicker, he clearly manifests signs of insecurity by deviating too far from his limited intellectual comfort zone purely for the sake of attracting attention. If you do not know the government’s appeal basis, you have no right wallowing in this domain. But then, the likes of the Bootlicker unfortunately want to make a fashion statement (politic) at the expense of style (legal). It’s like taking a knife to a gunfight, sure way to die.
You sound dull . . .compared to chief bootlicker. You are better off licking sata’s assss you foool
@Tony Blair… you are a big ignoramus and you seem to be an educated mposa mabwe. it is not the judge’s comments about Sebestian Zulu (State Cancer) that are the core of this ruling. it is the facts as presented. those comments were a by-the way. it is a pity that a “white man ” like you could be economical with the truth. try using names like Sata Chakomboka Mbulamano.
If you are in a rush to fix judges like mmembe and nchito did, you will crush on the curve of law. So says the court. Now the AG is cruising at spaceship speed to appeal with laying down the grounds of appeal…another sequel of flu by winter kabimba flopped cases has contaminated the SC and AG
without laying down the grounds of appeal
Malila, no surprises there, the state lost so they are suppose to be dissatisfied.
Now what are you appealing for? Just to confim you ‘dissatisfaction’? When we all already know?
The problem with this current executive is that they are bent to self fulfilment, hence this case will continue even when the public is happy with the ruling. Since they are not happy with the ruling they will appeal just to ensure their egos are met. What a govt for cadres and by cadres only.
management crisis in zambia.
Mulenga Senama apart from the merits or otherwise of a matter one should also consider expediency.The State would have been better off proceeding with the main matter tomorrow as opposed to appealing and they would then have considered appealing after the court’s final judgement.Obviously our colleagues have taken the wrong route.
@ TONY BLAIR…the president has all the powers in his hand thats the reason he is the chief commander of the armed forces,nothing can pass above him including the judge read article 97 of the zambian constitution
The Judgement by Judge Chisanga about whether the High Court can stay the action of the state to suspend the Judges pending hearing the main case-which is the Judicial review. Since the state lost this one and in the interest of time, why cant they go ahead to the main case rather than waste time with these preliminary issues? Does the state have a strong case against the judges? Is this not the reason Judge Mutuna proceeded to rule against Mutembo and company because they kept buying time? Are we not (as Zambians) being taken for a ride?
The state is avoiding to categorically say what the two judges are being cited for…hence we will be chasing our tails in speculation for along time to come unless somehow the Executive gets its way soon!
The appeal to the supreme court has been dismissed with heavy cost. Sata now should be impeached and taken back to opposition where he plays a good job only. His a disgrace not only to zambia but to the international community.
Mulenga Senama @ 18 and 24. I hear your arguement; however, they do not stand up to close scrutiny at law. Yes indeed the president has constitutional powers to apoint a tribunal which he did. He also has powers to declare war and sign death warrants. But these powers can not be exercised in isolation. Are you suggesting that whenever the president wants to declare war or kill somebody he could just do so because the constitution allows he to? No article in the constitution is a stand alone. Laws and bylaws have been established to help in the interpretation of the constitution and one of them is to do with judges. Injuctions against the state have been issued before both in Zambia and UK, remember we follow British law, so precidence has already been set. Consider Miyanda Vs the State.
so kuyafye ati shisekelemo chapwa this is nice ka the pf way
Atase iwe ka Malila…ok ChiLiato has appealed..he has the right mwe….Let the state appeal they have the right nabena. but ndelanda ati Chi Liato and the ka state will suffer the same fate.Atase amano kwati mbesuma fi shekaz mu mutwe!
MMD Chief Bootlicker! You are spot on. I always look forward to your postings; unfortunately rarely come out. I support how you come out to logically argue your case without insults to opposing views. For the case at hand; its evident the leaders in power have no better offer to the zambians. They are busy playing to the gallery and hiding behind their fingers. Worse still; Zambians we are not pro-active. Meanwhile the economy is on ancient wheels & no policy direction
Remember Kabimba is not far from these legal workings of PF and he continues to fail even when his party is in power. Why cant the granting board withdraw his qualification as a lawyer? Kabimba cant practice, let alone advise anyone on matters of law.
Inu a Mfumu a judge Chikopo pitani kumudzi kwanu pakalipano…zinthu zafika paja pakuti za minya ndithu…mwana wakana phala. Inu longani katundu mupite ku bwalo la ndege…..basi ulendo kwanu ku Lilongwe. Koma mupeleke moni kwa amai a Joyce Banda.
I think some people are confusing a few issues here. Firstly, Judge Chisanga was not yet considering whether the President has Constitutional powers to carry out the action in question. What she was looking at was the aplication by the two judges. The judges are the ones with an argument against the powers that Sata exercised. The juges are saying can you hear us out before this Tribunal begins, because we believe the President did not constitute it legally. Therefore, Judge Chisanga, by ordering a STAY (of proceedings), was merely saying in the interests of justice, let there be a review of the Presidents action first. After the review, a decision may be passed to the effect that the either Sata is right, or not. If he is right, the Tribunal goes ahead. Thus, in my understanding of the ..
law, this was not an injunction and does not breach the State Proceedings Act. It is a ruling that allows the other side to be heard as well in a matter of procedure. A stay has to do with proceedings, and it can later be lifted. An injunction usually refers to requiring a party to stop certain acts which are outside the court, e.g. the confistication of property, bullying, stalking etc. If I were the state, I would allow the court to review what the judges are challenging, rather than try and attack a stay of proceedings.
PF govt should not have dragged on with this case. This case is tarnishing the image of the country and is showing the international community how incompetent the new rulers are. Unfortunately the real cost of this circus will be borne by the guy in the street that has no job, health facilities, education. That is the problems when people allow lawyers to run the show. They started this problem and now they are wasting precious resources and national time doing their circus. This whole effort is not productive and the country can not afford it. Litigation is not the only way to solve problems and of course lawyers do not now that! If people respected one another, there would be no need for the whole legal profession. PF should try GOVERNING and not litigation.
Useless PF gimmick,you cant play with leant people,fake Attorney General Malila being used by PF for selfish gains, you will never succeed.This is above politics, its law. How can you be used by people who never went to school. Shame on you!!!!!
Useless PF gimmick,you cant play with learn t people,fake Attorney General Malila being used by PF for selfish gains, you will never succeed.This is above politics, its law. How can you be used by people who never went to school. Shame on you!!!!!
@18 mulenga sesana this is a STAY and not an INJUCTION….simple this is how the executive is missing the point…….just like you. I hope you are not the useless sebestian Zulu parading as Mulenga because even sebastian zule is hois shallow understanding of law he confuses the stay of proceeding to an injunction…we need to understand which law he has done maybe from congo or some part of the world which does not exist…..maila is also behaving like a fool…the two judges have the right to held in court and the law gives them the right to do so……
I feel pity for Malila.ULUSE.Working as Attorney General under a mad president can be highly daunting.First,you are instructed to appeal and then start fishing for grounds of appeal.
Silent Observer, I see your logic but please ask any lawyer & they will tell you that at it’s enactment, the State Proceedings Act was contentious because as you seem not to realise, it literally forbids injunction by the courts against a government (executive) process. No exceptions are provided for, ZERO. Whether legal or not is whence another matter but in this case & as far as the law in concerned, the reasons forwarded by Chisanga in her ruling lack legal basis, they are vexatious. As far as I see, Sata, in exercise of the powers constitutionally vested in him by the state set up the commission of enquiry. No court can stay the proceedings of this move as this will be in direct violation of Section 16 of the State Proceedings Act.
#46 Kolikoli – For your information, an Order of Stay is effectively an INJUNCTION, one & the same thing Mr. “A stay of proceedings is a stopping or arresting of a judicial proceedings by the direction or order of a court…; (a) a kind of INJUNCTION with which a court freezes its proceeding at a particular point, stopping the prosecution of the action altogether, or holding up some phase of it.
“A stay may imply that the proceedings are suspended to await some action required to be taken by one of the parties. Stay away from this case, it’s above your intellectual pay grade. It’s insulting to “puke” such stinking ignorant verbature in public like this, “Uno swaba sitimbi tuwe”.
Iwe ka mulenga . . this PF thing is clouding your big head! .The judges have a Constitutional right to be heard. The Constitution even provides for the misconduct of a judge to be reported to JCA and investigated b4 it can be recommended to the CJ who thereafter would have asked chi sata to take the action he took…. The Constitution is rated higher than this State Proceeding Act…Anyway who is the State? my view is that the State = executive+legislature+judiciary! The state is not only the executive you foool. The sooner you get it in your thick head that being a president is a job and its not above the law the less agony u will have .
Let us wait for the Appeal by the state.Am sure they may have some evidence which they do not want to share to the members of the public.The evidence may jeopardize the tribunals investigations.
Dollar
Please Mr Sata send Achimwene AChikopa back to malawi, he is not more qualified than our judges, Let him go and divorce the same sex marriages in Malawi, he is just consuming my money that should be used for other developmental programs other protecting Nchito, Chikwanda and Membe, I need my 14 billion Kwacha back, just like you gave me back my 2.1 billion from Liato although am not sure if he stole.
Shiiiiii shiiiiii donchi kudabwa!
Mulenga Senama – which document is supreme, the Constitution or the Sata Proceedings Act? The later was enacted because bailiffs were pouncing on govt departments and councils for non payment of dues. The Constitution over rules where there is a conflict between and Act and the Constitution. So the bone of contention in s98, which cannot be read in isolation and it starts with…..Subjcet to s91….. so s91 is critical in this argument.
Mulenga Senama @ 48
It is evident that you have not read all the cases against the state relating to injuctions. Here is a link for you to read for yourself. Injuctions against the state have been granted before inspite of the State Proceedings Act. Here is the link to satisfy yourself. http://www.saflii.org/zm/cases/ZMSC/2008/3.html. I hope you will realise that you were actually mistaken. Happy reading.
Mulenga Senena @ 48 &49: I do understand your argument but you are mistaken. It is evident that you have not read all the case laws on injuctions in Zambia. Please refer to the following case to satisfy yourself. When you read please respond to your lawyer friends and tell them they are wrong. Ref: Zambia: Supreme Court
You are here: SAFLII >> Databases >> Zambia: Supreme Court >> 2008 >> [2008] ZMSC 3
| Noteup | LawCite
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Attorney General v Law Association of Zambia (99/2006) [2008] ZMSC 3 (16 January 2008)
It is after reading this case law that I realised that Judge Chisanga was actually correct and the state is wrong. I rest my case
Number 40, Mai Dorika Ndaifulira neka.
Zinthu izi zangopita apo mukuti mwana wakana phala…Tsono zangofika pata timati..’Zinthu zikabvuta namwali aka ovula vula’
The supreme court job is to define exactly what the law meant when being enacted. Therefore they can pass a new definition in law that gives meaning to the saga. Sometimes it may be in favour of someone they wish. That is why the vote in odd numbers to ensure that there is no tie.
They can look for a loop hole to cover the president and squash the high court ruling , or they can craftly redefine justice chisanga ruling and uphold it as to what it exactly means.
This case is about the suspension of state proceedings to await judicial review requested for by the suspended judges is the crux of the subject matter you are all missing. We are not talking about injunctions to stop bailiffs from pouncing on govt property for failing to pay rent which the said Act does not provide cover for as precedent has proved. We are talking about State Proceedings, not indiscretions. We shall all know soon enough that Chisanga is wrong and Sata will have the last laugh, period.
Country men and women, this chi woman errored in her judgement. I can understand, its very cold nawadays and she is a single lady and no man to warm her up, therefore the frustration she is venting on the learned justice minister
# 55 Silent Observer, Please note that all the injunctions you have cited as precedent have to do with the enforcement of court verdicts obtained against the government. These are clearly not what Section 16 of the State Proceedings Act was intended for, NO! In the subject matter, we are dealing with a stay or rather suspension of tribunal proceedings to await one of the parties (the two suspended judges) to seek judicial review of the legality of the president’s decision to set up the tribunal to investigate their misconduct. Now, here comes the problem, this STAY or SUSPENSION of proceedings is effectively an INJUNCTION because it freezes the tribunal proceeding altogether pending review. This my unlearned friend is illegal under Section 16 of the State Proceedings Act.
Bane, what was lodged is an “intention of appeal” or notice of intention, the main appeal is yet to be made, this is done when one discovers they need to research more or understand the judgement that was delivered, but the main thrust is to ensure that they don’t lose out on the window period allowed for their appeal, no need for Malila to delve into the crust of the matter at this stage