Constitutional Court Judges
Constitutional Court Judges

The Green Party Media Team has said that the Judicial Complaints Commission on Friday last week made a finding of fact that the five Constitutional Court Judges who presided over the 2016 Presidential Petition filed by UPND Presidential Candidate Hakainde Hichilema, and his Vice President Geoffrey Bwalya Mwamba, failed to properly interpret Articles 101(5) and 103(2) of the Constitution in relation to the time-frame for hearing of Presidential Petitions. Green Party President Peter Sinkamba said this at a press briefing held in Kitwe yesterday.

According to Sinkamba, the Commission also found that the bench made contradictory or flip-flop decisions on at least three occasions in relation to the lapse of the 14-day period provided under Articles 101 (5) and 103 (2) for hearing of presidential election petition.

Furthermore, the Green Party leader said the Commission also found that the bench abruptly terminated the hearing of the Petition thereby contradicting its earlier commitments that it would not do so.

Sinkamba said that the Commission established further that from three possible scenarios on the interpretation of 14-day timeframe for hearing of presidential petitions, the abrupt termination of the proceedings, as the bench did on 5 September, 2016 was wrong because only 10 days lapsed instead of 14.

The Green Party leader said the Commission made these pronouncements when it delivered its ruling on a complaint he filed last year on 6 September 2016 seeking the removal of five Constitutional Court Justices, namely, Justices Hilda Chibomba, Annie Sitali, Mungeni Mulenga, Margret Munalula and Palan Mulonda from office of judge on grounds of incompetence and gross misconduct pursuant to Articles 143 and 144 of the Constitution.

Sinkamba complained to the Commission that the bench issued contradictory orders on the timeframe to hear the petition, which bordered on breaching Rules of Constitutional Court and the Constitution of Zambia. According to Sinkamba, the flip-flop orders were not only clear manifestation of incompetence but also prejudicial or inimical to the economy of the country as well as threatened the security of the State. He feared, as a consequence, the President was likely to invoke Emergency Provisions and thereby declare the State of Emergency.

Sinkamba also complained that probably in the history of Zambia, it was the first time that the entire teams of very senior lawyers representing a petitioner or petitioners walked out in protest due to the behaviour of the bench. And that probably, this was the first time too that an entire team of lawyers representing a respondent or respondents boycotted appearing before the bench. He contended that the walk-out and boycott by “officers of the Court” was a sign that the manner in which the bench presided over the matter before it was fundamentally wrong and thereby the Constitutional Court had been brought into disrepute, ridicule or contempt. He tendered evidence to the Commission of commentaries featured in public and private print and electronic media, where the Constitutional Court was ridiculed and contemptuously written or talked about.

Despite most of his allegations being ascertained in its findings as stated above, the Commission nonetheless ruled that Sinkamba did not establish a prima facie case against the judges to warrant their removal from office.

Briefing the press yesterday, Sinkamba wondered why multiple contradictory decisions which were actually proven by Commission cannot be prima facie.

“I thought a prima facie case of professional misconduct is based on the first impression accepted as correct until proved otherwise. Now in this case, the allegations went beyond first impression stage but were actually proven correct by the Commission after a series of hearings,” the Green Party leader charged and added “I therefore cannot surmise what the Commission means by prima facie case.”

Sinkamba also wondered why the Commission appeared to be reluctant to consider multiple proven evidence of flip-flopping as proof of incompetence. He said it does not necessarily need to take flip-flopping in several cases to prove incompetence. “Even in a single case, as it were in this case, incompetence can be proven.

“Take for instance the case of the game of soccer. A player who has been cautioned or shown a yellow card may continue playing in the game. However, a player who receives a second caution or shown a yellow card in the same match or the immediate next game, is sent off. When one repeatedly make bookable offences whether it is in the same game or the immediate next game, is a red card case. So multiple contradictions in the same case, is incompetence deserving a red card,” Sinkamba said.

Additionally, Sinkamba wondered why the Commission held that behaviour which brings the Constitutional Court into disrepute, ridicule or contempt is not one of the grounds provided under Article 143 for the removal of judge from office when Article 266(a) of the Constitution defines “gross misconduct” as “behaviour which brings a public office into disrepute, ridicule or contempt”.

“According to Article 266 of the Constitution, the office of the judge is a public office since emoluments and expenses of that office are a charge on the Consolidated Fund. This being the case, any behaviour that brings the office of the judge into disrepute, ridicule or contempt is gross misconduct,” he added.

The Green Party leader however commended the Commission for giving the complainants a hearing adding that “the decision is clearly a win-win kind of a decision”.

He said the State benefitted from the decision in the sense that the State “was going to be very embarrassed had the entire bench been removed from office. On-going cases before the Constitutional Court would have been thrown into disarray, and it is no wonder that the Attorney General sided with the judges throughout the proceedings,” he added.

Sinkamba also said the judges benefitted greatly from the decision in the sense that “it would have been extremely embarrassing on their part to be removed from office for incompetence and gross misconduct,” adding “it does not auger well for the future when one is removed from office on such grounds.”

“As for we the citizens, our benefit from this whole episode is that we have practically shown that sovereign power of the State vests in we the people,” the Green Party leader said.

“We have shown that the people have power to directly and indirectly hold office bearers accountable,” adding “though the system requires some panel-beating to perfect it,” he added.

He said based on the lessons learned from this case, there will be need to review the Judicial (Code of Conduct) Act so that Commissioners serving on the Commission are not allowed to represent clients in courts of law. In this case, the Chairman of the Commission Professor Patrick Mvunga and the Vice Chairperson Mwangala Zaloumis declared interest to sit during hearings because they were lawyers for respondents and petitioners respectively. This scenario left three Commissioners to handle the petition and when one of them died shortly after closing submissions, only two remained to conclude the work.

“Ethically and morally, it does not auger well for a Commissioner who is supposed to preside over the discipline of judges to be appearing before the same judges,” Sinkamba said. “This has potential to compromise the decisions,” he added.

“Also, we need to address the aspect of procedure. The Commission should not be at liberty to choose which procedure to adopt. For example, the procedure adopted by the Commission in the determination of the case of ConCourt judges was rather queer. How on earth can one prosecute a person who is not suspended? All over the world, when one is facing disciplinary charges, they are supposed to be suspended from work to facilitate unencumbered investigations,” Sinkamba charged.

“However in this case, in the morning the judges were appearing before the Commission on allegations of incompetence and gross misconduct, and in the afternoon, the judges were presiding over the other cases in court. Where then are ethics and morality?” Sinkamba asked.

The Green Party leader said the other key issue that needs to be addressed is the aspect of judicial review.

“If, for example, a judge is dissatisfied with the outcome of the Commission’s decision on points of law, and wishes to appeal, the question is: appeal before which forum?”

“How can a serving judge appear before another serving judge in judicial review proceedings and expect fair play, especially so if the litigant judge is from a superior court? We need to thoroughly think through these issues before we find ourselves cocoon at the end of the day,” Sinkamba said.

The complaint to the Commission was submitted pursuant to Article 144(1) of the Constitution and Section 25(1) of the Judicial (Code of Conduct) Act, where it is provided that any member of the public who has a complaint against judge or a judicial officer or who alleges or has reasonable grounds to believe that a judge or judicial officer has contravened the Constitution and the Act should inform the Commission.

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55 COMMENTS

  1. Okey, so what ever vegetable they smoke at Green Party works and enhances cognitive function.

    The challenge is that the Judicial Complaints Commission has no teeth of it’s own and must borrow those of the Attorney General who (by the way) is a presidential appointee.

    Systemic failure.

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    • Now he should sue the Judicial Service Commission in the Constitution Court. Hehehe. Lawyers in Zambia are making a fool of us all.

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  2. I arrive at exactly the same conclusion: the flip-flop decision-making is not only confusing but very detrimental to the entire judicial system. It sends a dangerous message that we can no longer rely on the decisions they make – system malfunction.

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  3. MOST of the judges in the Concourt are not experts in Constitutional law. The appointing authority made a grave error in appointing people with zero track record in Constitutional law. Imagine one of these judges was actually a Company Secretary in Lusaka Water and Sewerage. Why the appointing authority settled for such mediocre people is a mystery. We can only speculate that it was a calculated move on his part but you have to put the interest of the nation above self. Taking into account that judges can work up to 65 years, it will take decades to have competent people to replace this bunch.

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    • These people like IG of ZP have been promoted leapfrogging their senior all due to who they know…look at that picture!!

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    • Exactly the point as none of the appointees to the ConCourt met the prerequisite qualifications to sit on the bench. These are a bunch of clowns who do not cherish integrity for benefit of their stomachs! The govt would have done better to request assistance from the Commonwealth Club to temporarily fill the bench while capacity was being built for takeover by then would be qualified Zambians!

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    • They are a waste of tax payers money and should never have been allowed near any court because of their incompetence . They were appointed to please their appointing authorities’ as evidenced by the fact that they cannot enforce their judgement on ministers overstaying in office and drawing up salaries and allowances which worked to the advantage of PF.

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  4. Unlike the famously independent Kenyan court ,our Zambian constitutional court is beholden to the appointing authority a.k.a the presidency.

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    • So, for you in the Kenyan case independence of the Judiciary is because the ruling went against the Party in power?

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    • And it will be the same until we wake up forget about the opposition they are disorganised..that photo above will be the norm..most of those Judges are merely grateful just being appointed by the President.

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  5. I think the Judicial Complaints Commission ruling is a recipe for a constitutional crisis! if only 10 days had lapsed instead of the 14 days what does this mean with regards to the petition? is HH right to insist on being heard? Is the JCC’s ruling going to be part of evidence to HH’s pending High Court cases? How do we redeem the Judiciary now with all these contradictory rulings within the judiciary? Where do all these rulings leave the legitimacy issue with the President? too many questions and no answers, confusion, confusion, confusion pa Zambia.

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    • If lungu won those elections there was no need for all this, there was no need to be ruling over a divided country, there was no need for people to be calling him a theif , he could have simply let UPND show what evidence they had safe in the knowledge that 14 days will not change the numbers….

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    • The JCC has no jurisdiction to hear on decisions of the ConCourt. The ConCourt is the highest court in the land on constitutional matters. The Green Party guys mustave come fro smoking that herb when they made that announcement.

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  6. No confusion here. If truly commission established only 10 of 14 days were used, hh case is alive. It seems the whole ball game, hastely ending petition, quickly swearing the president was a conspiracy, a constitutional coup. Perptrators may be protected but not for long. A dark cloud is gathering!

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    • Mr. Sinkamba is telling lies, there is no dispute on the expiration of 14 days. He wasting time and being an alarmist.

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    • This commission looks at complaints only and can not be equaled to a court you donkeys. No consequence. your God hh is a natural loser!

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  7. I’m impressed with Sinkamba… he actually sounds very informed and articulate, much better than most politicians who are leading the major parties.

    The question now is what is the implication of this ruling on the petition and the legitimacy of one Lungu’s presidency?

    And can the other issues that he’s raising be looked at by someone. They need to be addressed as they make sense.

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  8. THese concourt judges are bunch of incompetent id1ots who can’t make decisions against Lungu. very disappointing to be a zambian in this era of a convicted thief as president.

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  9. I could’ve told you the courts ,the ACC ,the DPP and so many other independent bodies in Zambia are a joke.Lets end the all powerful presidency if we hope to have a functioning system of govt’

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  10. If Concourt prematurely “dismissed” the Petition b4 the 14 working days expired what then is the remedy to the Presidential Petition? The Petitioners were not heard and therefore need to be heard. Did JCC consider the HH Petition on the “handing over Power to the Speaker”clause. Lungu abrogated the Constitution when he refused to resign and handover Power to the Speaker. What is the remedy to this breach? What is happening at the High Court on the Right to be heard Petition? #We need justice in this. The Petition must be heard without fail.

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  11. I fear for her lordship Irene Mambilima’s legacy! The earlier she stands up to defend the Judiciary the better, otherwise we shall reach a time when people will be refusing judges to preside over their cases or to be taken to court altogether

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    • No need to fear @jocyline.
      Failure is Irene Mambilima’s legacy.
      She is in the grandstand watching the demise of the judicial system.
      They need to look far and wide for a credible chief justice when her contract expires.
      The question though is who are they? The same mob – PF. YOU ARE SREWED…..

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  12. The JCC made a finding that Concourt abandoned the Petition b4 the 14 working days had lapsed and 4 working days could have been used to dispose off the Petition.This means the Petition is alive. Is there a clause which mandates Concourt to”dismiss” the Petition b4 time had expired? Did JCC recommend a Remedy for their finding? In the case of Ministers staying in their posts illegally in 2015 Concourt found the Ministers illegally stayed in their posts and that they should pay back the money earned. Thru the AG Concourt was asked to review its decision and this Petition is still b4 Concourt and Ministers have not paid back the moneys. It is strange that the AG sided with the Judges against the very people they are supposed to serve. The AG and his Officials are employees of the State…

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  13. Since Concourt erred on the interpretation of the 14 days. It should review its decision and allow the Petition to be heard. Justice has to be served in this.The High Court should expedite their decision making on the Right of Petitioners to be heard Case now that JCC says only 10 working days were used and Concourt had 4 working days which they chose not to use.The Petition is still unfinished business.

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  14. Stop boring us with endless legal stuff….14 days is not plus 4 days…thats why chamba smoking is ilegal jst like cultivating chamba.

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  15. Concourt has No Powers to “dismiss” a Presidential Petition b4 hearing and determining it. Now that JCC has made a Ruling that Concourt abandoned the Petition prematurely and b4 14 working days lapsed then the Petition is very much alive. Concourt erred and illegally dismissed the Petition on a Time Expiry technicality. Concourt only used 10 working days and still have 4 working days to dispose off the Petition. Concourt must Review its decision in the light of JCC Finding. The Petitioners were not heard and for the sake of Justice the Petition should be heard and disposed off. Concourt bungled the Petition and the Judges should be made to account for bringing the Court into disrepute and causing Tension and disharmony in the Nation.Malandu tauboli so the Petition must be heard.If a…

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  16. is he the spokesman.

    u5 is not opposition leader.

    he is tribal leader

    guy scot said u5 is a leader of a small tribe

    from the south on voice of America

    Kambwili said that. ………finish for your self

    if you believe me press red.

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  17. The only two excellent Justices in the concourt are Justices Chibomba and Munalula as they are the only ones who voted that the petition continues to be heard in the remaining 4 days

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  18. Clearly JCC has ruled that the Petitioners were Not heard and 14 working days did not lapse. Concourt only used 10 days and 4 days could have been used to hear,determine and dispose off the Petition.Did JCC recommend a solution to this problem? What does Ms Linda Kasonde and LAZ say? JCC has ruled on behalf of the High Court that the Right to be heard by the Petitioners was violated by Concourt so the Petitioners must be heard. Period.

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  19. Aren’t we supposed to hear from the Commission itself instead of, what’s the name again? Green Party? We really need serious opposition parties in Zambia!

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  20. JCC is not a court and can not over ride the decision of the constitutional court. decisions of the concourt are final and can not be applied. also those bring the name of mambilima in this she has no control over the concourt judges

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  21. How Sinkamba is speaking on behalf of the JCC? It appears now days all you need is to be a little contravetial and all the media will be all over you.

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  22. Sinkamba brings out a lot of pertinent issues, often times. But because the average joker cant see beyond the kaponya interpretation of his marijuana masterplan, a lot is missed.

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    • Agreed. Everything s lost in his marijuana crusade. But he is very intelligent and conversant man of national issues.

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  23. He has a report from them. He was the complainant and they responded and that is what he is telling the nation. The commission does not have to speak to the media or the public about their finding on the complaints it receives. So what is controversial here sir? May be you are the one being controversial.

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  24. It’s time to remove those Judges really. I have been a victim of enslavement, torture and harassment is the so many vexatious suits manufactured by 10 Zambian lawyers as methods of stealing whatever I came back with from the UN. It is so painful that preliminary inquiries should be able to dismiss all those vexatious suits on early assessment, but just because I am female and I became a UN Diplomat.mI have been tortured and extorted of substitute amounts of money when the national courts have no jurisdiction in money paid to me from the United Nations account. Such erring is serious and has taken its toll on our lives. My rights were grossly violated but I cannot even petition the constitutional court for the gross violation of my rights because the President of the Constitutional Court…

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  25. Now that it has been declared that the concourt sat for only 10 days and they flip flop happenings what is the way forward? Its now clear that the appointing authority put such judges at. Concourt to favour himself which is a gross abuse of office . Whereby the speaker could not take change when the petition was filed it can only be concluded that it was a planned move. No wonder there was no declaration who the winner was. Bakuwe basalangenefye nga bakapanga. Judge Chidyausiku of Zimbabwe though late night did not forget to declare the winner. We are now a laughing stock amidist Kenya and South Africa. How do these failure Judges feel now and their employer?

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  26. Losers will remain LOSERS! They will never stop to complain! If it is not Tonga, doesn’t’ cough in Tonga or cry in Tonga, to them it isn’t right! Well done Constitutional Court. All other instigators are LOSERS!

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