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Sunday, January 29, 2023

Challenging the Powers of the JCC to Hear and Determine the allegations against the DPP

ColumnsChallenging the Powers of the JCC to Hear and Determine the allegations...


By McDonald Chipenzi

Reading through social media that some people are now challenging the powers and jurisdiction of the Judicial Complaints Commission (JCC) to HEAR and DETERMINE THE ALLEGATIONS lodged AGAINST THE Director of Public Prosecution (DPP) makes very sad readings and invokes questions. Which law premises such challenges.

Firstly, it is important to be clear that a person qualifies to be appointed to the office of the DPP if that person is qualified to be appointed as a judge (Art 180(2)(a). In essence, the DPP is a judge and is subject to all conditions of service and disciplinary procedures applicable to and on a judge.

Therefore, the removal of the DPP from the Office is on the same grounds and procedure as applied to a judge (Art 182(3). Art 144 guides that the removal of a judge may be initiated by the Judicial Complaints Commission (JCC) or by a complaint made to the Judicial Complaints Commission, based on the grounds specified in Article 143.

Art 143 specifies the grounds on which a judge or DPP can be removed as mental or physical disability, incompetence, gross misconduct and bankruptcy. Art 144 guides further that the JCC shall, where it decides that a prima facie case has been established against a judge, submit a report to the President which the President must act upon it within 7 days by suspending a judge.

After the suspension, the JCC is given 30 days to hear the grounds specified in the charge sheet against a judge or/and DPP and make recommendations either that the allegations are unsubstantiated or substantiated. If the charge (s)/allegation(s) are substantiated, the JCC recommends to the President for the immediate removal of the DPP/Judge from office.

If not substantiated, the JCC recommends for the judge’s immediate revocation of his/her suspension.
The Constitution further defines a Judicial officer in Art 266 to mean *a magistrate, local court magistrate, registrar and such officers as prescribed.

Art 236 establishes the JCC and spells out its functions among them *enforce the code of conduct for judges and judicial officers; ensure that judges and judicial officers are accountable to the people for the performance of their functions*

Other functions are to receive complaints against a judge [who includes the DPP] or judicial officer, as prescribed; hear complaints against a judge or judicial officer, as prescribed; make recommendations to the appropriate institutions or authority for action, among other functions.

From the foregoing, it is clear that the JCC is constitutionally and legally mandated to hear and determine all allegations against a judge or the DPP. These powers of the JCC are not only limited to the enforcement of the code of conduct for judges and judicial officers, no but as outlined above.

Therefore, it is strange to read that some people are questioning the loci standi of the JCC to hear and determine the fate of the DPP based on allegations against her/him.

I submit

16 COMMENTS

  1. No one can become an Attorney General unless he qualifies to be a judge of the High Court. Now, son of Donald Chipenzi, apply your reasoning to the removal of the Attorney General!

  2. Lusaka Times, what is there to moderate about this post?
    ‘No one can become an Attorney General unless he qualifies to be a judge of the High Court. Now, son of Donald Chipenzi, apply your reasoning to the removal of the Attorney General!’

  3. There is no need to be defensive; God defends the helpless. The Constitution is the basis of legal arguments. The powers of DPP includes discretion to under Art 180(4) (c) “discontinue, at any stage before judgment is delivered, criminal proceedings instituted or undertaken by the Director of Public Prosecutions or another person or authority.” On that basis, if judgment on Milingo Lungu had not yet been delivered, then the DPP was mandated to discontinue or continue the case. The question is: on what grounds is the impeachment of the DPP being argued? If it is specifically the nolle prosecui that was accorded to ML, then politicization cannot completely be ruled out. With regard to impeachment of DPP, under Art 182(3) “The [DPP] may be removed from office on the same grounds and…

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  4. One thing I like about life is that every body knows the true self. It is therefore better I work to uphold mine than being irritated by other people’s personalities. I doubt whether this country will ever learn to do away with politics of the stomach and focus on national development.

  5. ALL FORMS OF CORRUPTION SHOULD NOT BE ENTERTAINED. AND NO ONE SHOULBE ALLWED TO CAUSE ANY CONFUSION OR DELAYS IN THE FIGHT AGAINST CORRUPTION . WE SHOULD ALL PRINCIPALLY RALLY BEHIND OUR PRESIDENT AND ENSURE THAT THE CRUSADE TO RECOVER THE STOLLEN PUBLIC RESOURCES AND BRINGING THE PEPETRATORS , THE CORRUPT ONES TO BOOK. ANY Government OFFICIAL ENTERTAINING CORRUPTION SHOULD BE REMOVED WITHOUT DELAY SO THAT OUR COUNTRY MOVE FORWARD. CORRUPTION IS FOR DUNUNA REVERSE ONLY

  6. Welcome back to social media Dr Makasa Kasonde ( private citizen). The last I saw a posting by him was before the 2021 general election. There’s something that’s not normal with Milingo Lungu’s basis remuneration as provisional liquidator of KCM. His fees were fixed at 10% of gross sales of the company. This alone is suspicious and should attract the curiosity of any financial corruption investigators who know what they are doing. Who signed the contract with Milingo Lungu? Whoever they’re, they have something to explain.

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  7. Can not wait to hear the deal and what is in exchange for immunity. Who is ML throwing under the bus?

  8. @Angoni
    HH has declared his assets and liabilities for scrutiny 6 times in his political career. I hope you are old enough to remember.
    On 5 of those occasions 2005, 2008,2011,2015 and 2016 those declarations were made public according to constitution .The records are there for all Zambians to see.
    In 2021 he declared his assets for the 6th time . But ECL and his confused lot in PF changed the constitution to hide their unexplained accumulation of wealth.
    So its the PF’s fault that ECZ wont publish HH’s most recent declaration .

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