The State has urged the Court to uphold the suspension of three judges who were suspended for suspected impropriety saying the Head of State has unquestionable powers to suspend a judge without consulting the Judicial Complaints Authority.
A full bench of the Supreme Court Judges yesterday heard and concluded the long awaited tribunal case involving the suspension of the three judges.
One of the respondents’ lawyers Milner Katolo asked the court to stay the appeal case proceedings until the appeal case involving JCN Holdings Limited, Post Newspapers Limited and Mutembo Nchito in which they were ordered to pay back K14 billion owed to the Development Bank of Zambia (DBZ) was concluded claiming, there was nexus (connection) between the two cases.
This is in a matter in which Attorney General Mumba Malila, has appealed against the Lusaka High Court‘s decision to grant Supreme Court Judge Philip Musonda and two High Court judges Charles Kajimanga and Nigel Mutuna a stay over their suspension and setting up of a tribunal to probe their alleged misconduct by President Michael Sata.
Acting Chief Justice Lombe Chibesakunda led the panel of judges which included, acting Deputy Chief Justice Florence Mumba, Supreme Court judges, Marvin Mwanamwambwa, Hilda Chibomba, Muyinda Wanki, Gregory Phiri and Elizabeth Muyovwe.
When the matter came up for hearing yesterday, Mr Malila and Solicitor General, Musa Mwenye urged the court to uphold their appeal against Lusaka High Court Judge Fulgeance Chisanga’s ruling because the learned Judge misdirected herself when she granted Dr Justice Musonda, Justices Kajimanga and Mutuna, a stay over their suspension.
Mr Malila and Mwenye said the Judicial Code of Conduct cited by the judge could not be used to dilute the Presidential powers vested in him under the Constitution.
They said if Judge Chisanga had directed her mind to the fact that President Sata was executing his powers as vested in him by the Republican Constitution when he suspended the Judges, she would have come to an inescapable conclusion that there was no prima facie for further consideration.
The two said if Judge Chisanga had applied serious weight to the fact that the President had applied public policy documents in suspending the judges, she would have known that the same could not be diluted with the Judicial Code of Conduct which was an ordinary Act enacted by Parliament.
He said allowing for the diluting of Constitution provisions by subsequent enactment of ordinary statutory in Parliament set a dangerous precedent which threatened the principle of Constitutionalism.
“The effect of allowing such law to amend the provisions of the Constitution is a very dangerous precedent. The public policy requires that the principles of Constitutionalism be jealously guarded and not lightly amended by an ordinary Act of parliament,” Mr Malila said.
He said if Judge Chisanga had critically analysised the issue, she would have come to an inescapable conclusion that Judges Musonda, Kajimanga and Mutuna failed to establish a prima facie to warrant them a stay against their suspension.
Mr Malila said Mr Sata was not expected to abide by the Judicial Code of Conduct provisions which were the subsidiary of Article 98 (3) of the Zambian Constitution and such the appeal by the state should be allowed to hold.
But respondent lawyers urged the court to dismiss the appeal with costs saying Judge Chisanga was terror firm (on firm ground) when she granted their clients a stay against their suspension.
Lawyer Abyudi Shonga urged the court to dismiss the appeal case on grounds that the appellants (State) had raised four new grounds in their appeal case which they did not raise before the High Court and the same could not be raised at appeal stage.
Mr Shonga said the State failed to attack all the arguments which were brought before the High Court by the judges.
Earlier the respondent lawyers among them Eric Silwamba, Milner Katolo, Paul Katupisha and Sakwiba Sikota raised three preliminary issues on which they urged the court not to entertain the appeal by the state.
Mr Katolo urged the court to stay the State’s appeal until the appeal case involving JCN Holdings Limited, Post Newspapers Limited and Mutembo Nchito and DBZ was concluded because its judgment would have an implication on the tribunal case.
But the state opposed to the objection saying the judges commenced the judicial review proceedings when they knew that the JCN Holdings Limited, Post Newspapers Limited and Mutembo Nchito case was already before court.
Mr Mwenya and Malila argued that there was no connection between the tribunal case and JCN Holdings Limited, Post Newspapers Limited and Mutembo Nchito to which the Supreme Court judges agreed.
Judge Chibesakunda who later announced the conclusion of the hearing gave the state 10 days to respond to some heads of argument which were filed before court yesterday while judgment date would be communicated later.
[Times of Zambia]
The argument is very clear that Serpent Cobra Ukwa Sata CNP is bent to abuse our constitution going by his defence team. I feel sorry for Mumba Malali to be used in such a manner. The case is clear, we want our money back from the thieves who duped Zambians. The three judges should not be victimised for protecting Zambians interest. No one is above the law and Serpent Cobra Ukwa Sata CNP time will come to dance to kalela when out of power. In Chewa we say “chapita mawa chili pa iwe” and my Bemba cousin say “ubuchenjeshi wa koko phugwa tasakamana”.
sure?
ok
Circus!!!
this is what we call democracy now but can a poor woman fro Kwa do the same against the state money speaks
We really need a new constitution….PF way of thinking is really causing depression
And what is Mutembo Nchoto still doing as DPP? Banana republic,no morals or whatsoever
Lets see
the state will loose the appeal
Cry my beloved country
Betty Kaunda has died in Zimbabwe where she went to visit the daughter, sad development for KK.
Mumba Malila has stooped to the lowest of indecency. Cannot just believe it that he has sunk this deep in kitchen sink PF political myopia. Where is the separation of powers if the AG is propagating an imperial presidency with concocted absolute powers of the Executive over the Judiciary and Legislature? How do you then arrest dictatorship and anarchy?
Posterity will judge Malila harshly.
why would anyone want to suspend Judges that are independent and learned…than him..?
This is bs of the highest order.Head of state having unquestionable powers over means the judiciary is not independent.Its a tool of intimidation and abuse of power.
Mama Betty Kaunda ran a good race, fought a good fight and and she has distinctively finished. Condolences to Dr. Kaunda and entire family. We have lost an icon who lived an exemplary life worth of emulating.
Again condolences.
Lawyers on this blog, sokoleni data kaili; we await your analysis and citation of legal documents and all so that we learn from you. Cho-chise; no data will not solve the problems.
Kwena the president really loves Mmembee and Nchito.
MALILA HAS JUST CONFIRMED TO THE MASSES THAT Satan HAS AN UNQUESTIONABLE POWERS AND CAN DO WHAT EVER HE WANTS IN THIS NATION. FOR YOU WHO DOUBT THE PF DICTATOR CAN YOU NOW COMMENT ON WHAT HIS LEGAL MEN ARE RECOMMENDING FOR THIS NATION?
SURELY ZAMBIA IS ON FIREOOOOOOOO
Gentleman let us not be oblivious to reality. Judges need independence quiet okay but they are human and bound to be driven by emotion and loose focus. These have to be checked as well. Remember the state machinery has intelligence structures supporting it. The information we have about these judges goes beyond the JCN Holdings Limited, Post Newspapers Limited and Mutembo Nchito saga. They are scared to face the tribunal because of what will come out, taking from an informed position. Let the judges go to the tribunal and you will hear for yourselves.
True
You cant have a president with absolute power over judges.Where is the indepedence of the courts then?The states argument is typical of pf way of doing things
Clearly this is not the way to fight a case, how do you come out and say ” i am king i can do what i want” makes me think of “the lion king” ahhh yes SCAR it is.
Everyone knows the president has a lot of power but they should be seen not to abuse it, in this case they are hiding behind a constitutional power which can still be challenged by the way.
The constitution also requires that you work in the best interest of the people
Answer lies in chopping such presidential powers in the new constitution. In the meantime Sata continue excersing your given powers.
The President having UNQUESTIONABLE POWERS????? That’s a JOKE ALRIGHT!!! Even with the outdated constitution – THERE ISN’T AN ARTICLE WHICH GIVES HIM UNQUESTIONABLE POWER!! With the separation of powers between the Executive, Legislature & Parliament, JUST AS the PRESIDENT CAN’T TELL PARLIAMENT WHAT TO DO, HE CAN’T TELL THE LEGISLATURE WHAT TO DO!! this is the whole basis of separation of powers. THE PRESIDENT CAN’T WAKE UP ANYONE MORNING & SUSPEND ANY JUDGE except for THE CHIEF JUSTICE ONLY!!! THE REST, a recommendation FROM THE JCC, IS THE ONLY ROUTE for Presido to suspend the others!! This is there to PROTECT FREEDOM OF THE JUDICIARY! This is the problem for the state lawyers, as THEY ARE APPOINTEES AT presidos mercy! The NEBULOUS ARGUMENT of “vested powers” is a non-starter!!
This makes sense! The Judiciary must be independent.
You Sata haters, when you are invited to participate in the constitution making process, you decline. Even the so called learned people also don’t see anything to such laws until MCS comes into power they say it is bad. Since it is law, there nothing wrong in applying it.. When such a law is used on them that is when you cry foul. This law will be in place as long as you don’t condemn it.
President Sata is not a war time President for Malila and Mwenya to illegally shove on Zambians an imperial Presidency. There is absolutely no cause shown for such mirth to hold in a constitutional republic under a nascent democracy. Their motion in court is a nothing but an illegal political pandering act inimical to our constitution and democracy. If we exercise our civic duties rationally, you will realize that something is wrong with Malila.
Therefore, the peculiar delicacy of this case on the side of Government, the novelty of some of Government lawyers, circumstances clouding it, and the real difficulty for the bench to attend to the illegal points being advanced by Malila, require a complete exposition of the constitutional principles on which constitutional Governments operate, opinion to be given by the court should equally be founded and established as a precedence.
What Malila and Mwenya are doing are dangerous acts.
10 Days !!!! To scour the constitution with TOOTHPICKS for LOOPHOLES to justify Chikopo’s stay!!! “PUBLIC POLICY DOCUMENTS???? I take these to be JCN & Mmembes Complaint???
The Constitution is SUPREME TO ANY OTHER DOCUMENT IN THE LAND!! I guess we have to take our hats off to the AG & SG for employing their “legal gymnastics” in trying to confuse the rest of us that never saw the four walls of law school – UNFORTUNATELY CERTAIN THINGS ARE BLACK & WHITE, almost set in stone!!
The purpose of a Constitution is to regulate the excursion of power by the Executive so as to avoid abuse the President cannot hold unquestionable powers in a democratic dispensation. Its typical of CNP
Betty Kaunda- dead
Zambia currently has a vindictive and incomprehensible constitution put in place by FTJ. You can batter his grave if it serves you any good.
:-\”:-\”:-\”:-\”:-\” we call it kissing CNP’s A’ss
@12 chinya citizen, u a back mouthing dung, seperation of power doesnt mean the executive stops funtioning. Dont support lawlessness
#1, DON’T MIX UP CASES. THOSE THREE JUDGES WERE CORRUPT AND THEY SHOULD BE DELT WITH AS SUCH. THE LET MANY CASES SLIP THROUGH BY ACCEPTING BRIBES. EVEN THE CHILUBA CASE WAS SPOILED BECAUSE OF THEM. MEMMBE AND NCHITOS’ CASE MUST ALSO BE DELT WITH SEPERATELY. THE PEOPLE OF ZAMBIA NOT ONLY WANT BUT NEED JUDICIAL REFORM. MMD’S JUDICIARY EVEN UNDER LEVY MWANAWASA WAS SO CORRUPT. IT’S HIGH TIME ZAMBIA HAD A DIGNIFIED JUDICIAL SYSTEM.
#16 YOU HAVE SOME WISDOM AND RESPECT FOR FACTS. PANTU JUST TALKING FROM UNAUTHORITATIVE STAND-POINT TRULY WILL NOT MAKE ANY LEGAL SENSE. WE NEED LEARNED BLOGGERS TO CONTRIBUTE WITH FACTS.
#18, IT’S IN THE CONSTITUTION. THAT’S WHY ZAMBIA NEEDS A NEW CONSTITUTION WHICH SOME ARE EVEN TEARING WITHOUT THINKING. A LOT OF THINGS MUST CHANGE AND IT’S THE PEOPLE OF ZAMBIA TO CHANGE THEM. CURRENTLY, THE CONSTITUTION EMPOWERS THE PRESIDENT IN THE SAME WAY KK WAS EMPOWERED.
#19, YOU HAVE JUST HIT ‘MY’ NAIL ON IT’S HEAD. I ALSO ALWAYS ASK WHY THE THREE JUDGES ARE SCARED TO FACE THE TRIBUNAL. WE ZAMBIANS MUST LET THEM FACE THE TRIBUNAL SO THAT WE HEAR WHY THE SO CALLED LEARNED MEN ARE SCARED OF IT. THESE JUDGES WERE CORRUPT WE HEAR THEY EVEN ACQUITTED OBVIOUS BUT SERIOUS MURDER CASES IN EXCHANGE FOR MONEY. SO, LET’S HEAR EXCULPATE THEMSELVES. AND LET’S ALSO HEAR WHAT WITNESSES HAVE TO SAY AGAINST THEM.
#22, GREAT. THAT’S WHERE THE ANSWER LIES. NOT THESE CHAPS WHO ARE JUST EMPTY TINS AND ARE JUST YAPPING. THE CURRENT CONSTITUTION ISN’T PF’s. IN FACT PF IS TRYING TO CHANGE THE VERY CURRENT CONSTITUTION. IN THE MEANTIME LET’S USE THE CURRENT CONSTITUTION. PERIOD.
THE SAME SUSPENDED JUDGES HAD NEVER SEEN ANYTHING WRONG WITH THE CURRENT CONSTITUTION BECAUSE PRESIDENTS USED TO USE IT AGAINST POOR CITIZENS BUT IN FAVOUR OF JUDGES AND OTHER RICH PEOPLES’ POCKETS. IT’S NOW THAT THE SAME LAW IS USED AGAINST THEM THAT THEY ARE SEEING A LOT OF WRONGS WITH THE LAW THEY LOVED. IT’S BEING STUPID OF US ZAMBIANS TO START PROTECTING THOSE FEW WHO ABUSED THE LAW AGAINST US COMMON PEOPLE. LET THEM FACE THE TRIBUNAL- AFTER IT’S THEIR LAW. THEY ARE (THE SO CALLED LEARNED) THE WHO ENGRAVED IT AND NO COMMON MAN EVER PARTICIPATED IN ENGRAVING IT. IT IS ONLY IN PF TIME THAT WE ARE NOW PARTICIPATING IN RE-ENGRAVING THE CONSTITUTION. MEANTIME THE SAME LAW CAN BE USED BY ALL AND SUNDRY.
#30, YOU ARE SO IGNORANT ABOUT THE CONSTITUTION OF ZAMBIA. FTJ NEVER PUT ANY LAW IN PLACE. ZAMBIA IS STILL USING THE SAME LAW FROM 1964, IF NOT BEFORE THAT. OUR LAW IS ARCHAIC TO SAY THE LEAST.
You are damn. The constitution has seen amendments during FTJ such as the restriction of persons who could stand for president. That was used to keep KK at bay.
You have no justification of using the word ignorant when you cannot produce facts!
Ignoramus!
Hmm! Unquestionable powers is more like being un accountable to any one. the judiciary needs to be totally independent.
I am not a Lawyer but the say the constitution is supreme. All other laws are subordinate the constitution, So Malila, the state and the Presisident are on firm ground. But of course Lawyers being the slippery creatures they are, makes anything(the opposite) possible
Read the constitution before you say they are on firm ground!!! It is on the internet for your information!!
In as bad as it may sound, that is what our constitution offers in its current form. We have argued time and again including the current president when he was in the opposition then, that there was need to curtail some powers of the president. It wont be fair to blame the president but ourselves as Zambians.We have had opportunities during various constitution making process, unfortunately non of them has yielded a thing. Currently, the President does not have any other documents he can fall on when executing his duties.We have yet another chance now to the right thing. Those of you who are home, make submissions as you read the draft.So the issue is not about MC But the supreme law of our land,its outdated. On ther Judges, i do not see anything wrong in exonarating themselves.
Best line includes the words ‘terror firm’ which apparently means on strong ground. You’ve cracked me up with that one LT!
I think it is terra firma but I like yours better :)
@Peter (33- 39) YOU SEEM TO HAVE A LOT OF INSIDE INFORMATION REGARDING THE 3 JUDGES PERHAPS YOU CAN LET YOUR FELLOW BLOGGERS KNOW WHICH CASES THESE JUDGES THREW FOR MONEY,WHICH MURDERER WAS RELEASED FOR MONEY.HAS IT EVER OCCURED TO YOU THAT THE REASON THE JUDGES ARE REFUSING TO FACE THE TRIBUNAL ,IS (SIMPLY PUT ) BECAUSE IT IS ILLEGAL,BY REFUSING AND DEMANDING THAT THE WHOLE PROCEEDURE FOLLOWS THE CHANNELS LAID DOWN BY OUR CONSTITUTION THEY ARE PROTECTING YOUR AND YOUR CHILDREN’S CONSTITUTIONAL RIGHTS.OFCOURSE THE PRESIDENT MAY BE DEEMED TO HAVE UNQUESTIONABLE POWERS BY HIS GOVT, BUT DOES THAT NOT INDICATE THE HALLMARK OF DICTATORSHIP VS DEMOCRACY? IF THESE JUDGES HAVE ALWAYS BEEN CORRUPT WHY WAIT UNTIL K14 BILL. IS BROUGHT B4 THEM FOR JUDICIAL REFORMS TO BE COMMENCED?
Besides the poor Judges have been tried and found guilty by the POST NEWSPAPERS. How can they ever have a free and fair trial when the Post has run a campaign to denounce them ,even as the case is before the courts, almost on a daily basis. I Have never ever heard of a country where the defendant asks for a particular Judge and when turned down they cry corruption! who is more corrupt? why would you insist on a certain Judge unles you were certain he/she would rule in your favour. I am very hopeful that the panel of Supreme Court Judges will rule with their brains and not their bank accounts or job security. Remember next it could be you in the dock!!
President Sata or any republican president in Zambia hasn’t got absolute unquestionable powers in our country. We would not allow a single person to possess such powers because such power does not measure well in a democracy. To assert that Mr Sata has such powers is a desperate position by Malila to please his appointing authority and not by legal implications. Mr Sata has backtracked several times since he became president proof enough that he has powers that when used erraneously will always be challenged and such is the position of the courts today. The appeal should stay to correct circumversions of normacy and let Nchito amd Mmembe pay Zambians the K14 billion.
”terror firm” Roger that!
“Terra firma”, I suppose?
‘Unquestionable powers by the executive’ thats a joke. Where then is the principle of separation of powers. On the other hand there can never be a complete separation of powers as this may ground govt to a virtual stand still.
@44 and 45 emptytinsmake the mostnoise, thank you very much for your very good contributions.
“The President has unquestionable powers to suspend a judge without consulting-State” In what day and age was that statement made!!!
Sata is a dangerious wanker, and when he smokies weed,who know what he will do?
Dear Mr MMembe and the Post newspapers, I know you have read the bible front to back so you have seen the posted verse ”
Psalm 37:21
The wicked borrows but does not pay back, but the righteous is generous and gives; ” How have you turned into such wicked and vengeful people waging wars of false words against defenceless people ,people who cannot retaliate because of their professionalism. If you did not borrow the K14 billion well and good but if you did ask for forgiveness and pay it back even if it is in intalments.