Tuesday, October 15, 2024

High Court Strikes Down HH’s Suspension of ConCourt Judges

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“The grant of leave shall operate as a stay pending proceedings before the Judicial Complaints Commission scheduked for hearing on 30th September 2024”

In a dramatic legal development, the Lusaka High Court has blocked President Hakainde Hichilema’s decision to suspend three Constitutional Court judges: Justice Anne Sitali, Justice Mugeni Siwale Mulenga, and Justice Palan Mulonda. This ruling underscores a critical showdown between the executive branch, led by President Hichilema, and the judiciary. At the center of this battle is the Judicial Complaints Commission (JCC), a vital body responsible for upholding judicial standards and safeguarding the independence of the judiciary.

In a sharp rebuke of the executive’s decision, a three-person committee of High Court judges, Charles Zulu, Chilombo Bridget Maka, and TS Musonda, has granted a stay of execution against the suspension of the three Constitutional Court judges. The injunction effectively freezes the suspension, with the stipulation that it will remain on hold until the Judicial Complaints Commission concludes its proceedings, scheduled for 30th September 2024. This legal intervention highlights the judiciary’s role in maintaining a balance of power, serving as a check on executive authority.

While the President holds constitutional authority to suspend judges, the Judicial Complaints Commission acts as an oversight body, ensuring no arbitrary actions are taken. The High Court’s decision reflects the importance of this balance, where the judiciary asserts its independence in the face of executive decisions.

The genesis of the suspension stems from President Hichilema’s controversial decision to suspend the three judges, although the specific reasons for their suspension remain unclear. Such suspensions are generally linked to accusations of misconduct or actions that cast doubt on a judge’s professionalism. However, under Zambian law, while the President has the power to suspend judges, the final say lies with the Judicial Complaints Commission, which reviews the legitimacy of such actions.

The judges did not accept their suspension quietly and swiftly mounted a legal challenge. Their efforts resulted in the stay of execution granted by the High Court, allowing them to continue their duties while awaiting the JCC’s ruling. The legal maneuver, spearheaded by High Court judges Zulu, Maka, and Musonda, has effectively put the President’s decision on hold, ensuring that the judges can return to work pending the Commission’s formal hearing at the end of September.

For the time being, Justices Sitali, Siwale Mulenga, and Mulonda remain on the Constitutional Court bench, their suspension temporarily frozen. The upcoming hearing is now crucial, as it will determine whether the suspension was legally justified or if the judiciary will prevail in its defense against executive overreach. The stakes are high, with not only the future of these judges hanging in the balance but also the integrity of Zambia’s judiciary itself.

This case highlights a fundamental struggle between executive power and judicial independence, as Zambia’s checks and balances are put to the test in a high-profile legal battle. The outcome will have lasting implications for the relationship between the branches of government and the broader political landscape in the country.

As Zambia waits for the Judicial Complaints Commission’s ruling, the High Court’s intervention has raised significant questions about the limits of presidential authority when dealing with the judiciary. The 30th September hearing will be pivotal in determining whether the President’s suspension of the judges was an appropriate use of power or an executive overreach. For now, the legal system has demonstrated its resilience, underscoring the importance of the rule of law as a counterbalance to the political elite.

58 COMMENTS

    • I have since seen the High Court order. It is only the JCC’s decision to start hearing complaints against the three judges on 30th September which has been stopped by the High Court until further orders from the High Court. There’s no mention of lifting the suspension of the judges.

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    • @Gunner now read this: “THE disciplinary hearing for three suspended Constitutional Court judges scheduled for September 30, has been halted by the Lusaka High Court. This is pending determination of the judicial review proceedings regarding the suspension of the judges.
      The three judges have instituted judicial review proceedings against the State, arguing that the cases on which the JCC relied on in asking President Hakainde Hichilema to put them on ice, have already been decided upon.

  1. WoW! Now our democracy is in motion. I am really impressed with our Judiciary. The past week, my drinking mates were shouting that without John Sangwa the Judiciary is a Pen house. A pen is where chickens are kept. They are now swallowing their words. I hope there’s a positive lesson in this for all of us, hope all rights will be fought for like the Judiciary’s. Iam alluding to that down trodden right called freedom of expression, freedom of speech freedom of the media

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    • The young man MWANZA expressed himself reminding HH of the election promises he made. MWANZA has been locked up. Are we in Lusaka or in Pyong Yang?

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    • @Seasure disciple. Arresting and locking up people won’t give the one giving orders eternal life. We have buried five presidents since independence…. some of these arrested, detained and even killed their opponents… but alas they have also joined those they murdered.

  2. My POV is that if you have to blame anyone, it’s the JCC, whose recommendation had to be acted upon by the president. To fail to act within 7 days would be usurping the powers of the JCC, which in itself is unconstitutional. Double edged sword!

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  3. I have argued elsewhere that the constitution of the Republic of Zambia has adequate protections for judges. If a judge has been behaving as a judge should, there’s nothing to fear in Zambia. However, the protection judges enjoy is not absolute and that is as good as it gets. The High Court has not stopped JCC action from going ahead and that’s a good thing. There are certain questions the three judges ought to answer satisfactorily regarding the 2016 presidential election petition. In fact the entire bench was a big let down, especially the now retired president of the court Hilda Chibomba.

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  4. “This legal intervention highlights the judiciary’s role in maintaining a balance of power, serving as a check on executive authority”.

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  5. Under normal circumstances, what this high court should have done was to challenge the report and recommendation of the JCC to the president. The President followed the procedure of acting on the report and recommendation of the JCC. Fortunately the high has not stopped the next actions of the JCC. Therefore those judges called to account for their actions and decisions have the opportunity to defend their actions.

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    • The High Court did what it was asked to do. It refused to take sides in the matter between the three Constitutional Court judges and the JCC. I hope the JCC is alive to the fact that there’s concern that the judges have appeared before it before on these same charges. It’s important to demonstrate that there are new issues that were not addressed last time for the latest proceedings to be seen as justified.

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  6. “However, under Zambian law, while the President has the power to suspend judges, the final say lies with the Judicial Complaints Commission, which reviews the legitimacy of such actions”

  7. In Zambia, it is ‘Chipante-pante’ as always. What this article fails to highlight is there are 2 separate things at play here: 1) The constitution as is currently written; 2) the Constitution as it ought to have been written. My understanding is with #1, the president complied with the Constitution as it is currently written, i.e. the JCC recommends the suspension of a judge to the president who must act within 7 days to suspend that judge so that said judge can be investigated further while they are on suspension. This is regardless of the merits of the case. So as things stand, this High Court ruling actually violates the Constitution.

    • I completely agree with you.
      The entire saga has now become convoluted, as if the President acted beyond the constitution, which is incorrect.

  8. The problem with our judiciary is the seed of corruption that was planted and watered by the previous regime of ecl. Cleaning the mess, is interpreted oppositely. Even just arresting and prosecuting famous economic plunderers, I either taken as political or tribal. Zambia can’t develop in this way. And generally most Zambian lawyers are a let down.

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    • Exactly……….

      To the point………

      They like to much drama and mulomo……..

      This is just to mask their laziness to work positively and develop this country…….

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    • That is not the way to clean up a corrupt judiciary. Unless you are too daft to manouver your way within democracy. Like Idi Amin was. There are plenty of democratic tools any intelligent and wise leader can peacefully use to clean up the system. If he doesnt know them he is not fit to rule.

    • Fresha waku ma ruins

      There are no other ways of cleaning up the rotten judiciary with the tribal labeling that follows all attempts at clearing the rotten, other than direct action……..

      The president is of the wrong tribe to enter any deals to clear the judiciary without heyteria being whipped up……..

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    • Spaka you love resorting to the tribe card all the time because of your village upbringing. The three judges are not even the Bembas you hate or want to accuse. One is married to a Bemba like many of us have married other tribes-unlike you who prefers to breed locally in Bweengwa.

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  9. In Zambia, it is ‘Chip@nte-p@nte’ as always. What this article fails to highlight is there are 2 separate things at play here: 1) The constitution as is currently written; 2) the Constitution as it ought to have been written. My understanding is with #1, the president complied with the Constitution as it is currently written, i.e. the JCC recommends the suspension of a judge to the president who must act within 7 days to suspend that judge so that said judge can be investigated further while they are on suspension. This is regardless of the merits of the case. So as things stand, this High Court ruling actually vi0lates the Constitution.

  10. Now with #2, the President should never suspend a judge… in a democracy, the Judiciary is one third (1/3) of the 3 arms of govt… the Legislature, Judiciary and Executive branches. They are one and equal, and the President is not any more powerful than the other two… and in this case, this ruling is in order. However, that’s not how our Constitution is currently written. This needs to be fixed.
    By the way who sits on this JCC, is it another Kangaroo court which can easily be manipulated and abused?

    • Constitution and constitutional are two different things from my understanding.Learned lawyers it’s now your work to determine whether JCC was right or not.The president acted on the report sent to him from the JCC and the president suspended the said judges from their Offices (not firing them) meaning the case is under investigation.

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  11. What democracy are people celebrating? Legal Theatrics!! My foot!! We need a Paul Kagame to clean up the mess in this sh*thole called Zambia. Welensky must be laughing in his grave!! We are such corrupt, tribalist hypocrites who celebrate criminality, thuggery and corruption as longeras it dine by a tribesmate or regionmate.

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  12. The judges in Zambia are corrupt. The prosecutors at their office with Lusaka police central station move with files full of cases to approach and to receive bribes from those involved in crimes. What else can the President do?

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    • What else can the president do? Stay clear of things he doesn’t understand…by the way what did these judges do to deserve this? A Upnd cadre brings up some nonsense that happened in 2016 and HH jumps on it because these judges failed to hear his election petition? Come on people.. this is pure banana republic stuff.

  13. It’s a mission in futility, they will end up losing anyway. It was a highly mischievous act of these judges to rule the way they did in the UPND elections petition, had it been in Ghana’s Rawlings Judicial move, they would all be sleeping with fishes by now!

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  14. It’s a mission in futility, they will end up losing anyway. It was a highly mischievous act of these judges to rule the way they did in the UPND elections petition, had it been in Ghana’s Rawlings Judicial move, they would all be sleeping with fishes by now!!!!

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  15. ………..

    This so called democracy is not for everyone……….

    We are busy fighting over silly technicalities,………

    If you are corrupt, your are corrupt……..

    Mean while our friends in Asia are making sure factories are opening……

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    • Very very true! This so called Democracy isnt for you. But some of us love it
      Most dictators get revealed only when they are in power. We all can see UPND members who loved and used democracy to get to power now dont want Democracy.

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  16. Am not a fan of HH but i think we need to go back to the drawing board….lets get rid of corruption…Corruption is a serious cancer in our society….once we get rid of corruption then our economy will start to grow….The Anti Corruption Commission and the Judiciary should be in the front fighting corruption…

  17. Of course this is just a temporary reprieve just to show people that the judiciary is independent and not being controlled by HH. These judges will be history after 30th September.

  18. And voters will strike down HH from the State House in 2026….i always say HH is the master of corruption…he wanted to take over the Judiciary and intimidate the Judges…aloba ilyauma…HH should prepare for Jail come 2026

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  19. @ Lunga
    HH and Esther same whatsapp group…..and now they should subpoena HH and bring him to court so that he can be charged for corruption and trying to take over the Judiciary

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  20. A huge win for Zambian democracy and constitutionalism. Now we need to one day join Kenya & Malawi in striking down any flawed presidential elections (only if lawfully applicable)

  21. HH kulibonesha….he wanted to test his dictatorship capabilities….now this will definitely cost him his Presidency…he has been exposed and he can even be removed from office….what he did was unconstitutional and abuse of his office…if this was in the USA or UK…HH would have resigned on his own

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  22. Since the JCC has the finsl say as per Zambian law,then the JCC and not the President must suspend the judges found wanting,c onduct impartial hearings and if found guilty,then recommend to the President for their removal and must be non- contestable and if not they must be reinstated without the involvement the Executive.

  23. Now the Election commission should take a leaf from what the high court has done….they shouldn’t be push overs and bow down to the sitting President….WE NEED A VERY INDEPENDENT ELECTION COMMISSION AND INDEPENDENT JUDICIARY

  24. Remember i said No one wants to listen to African delegation at the UNGA….yes because of begger mentality….the Zambian Delegation leader was begging at the UNGA…like seriously!!….meanwhile they’ve spent millions of tax payers money traveling to go and beg with a massive entourage almost the entire Cabinet is in New York…today and tomorrow its serious shopping

  25. The President should fire His legal advisors for failing Him they should have done there home work before proceeding with the actions of meddling with the CONSTITUTIONAL COURT JUDGES who hold the Zambian constitution in there arm pits.

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  26. In all honesty, yes the President should never be suspending a judge but the ConCourt judges to be investigated while they are in charge or in power is also wrong. They (judges) should have and must have taken extended self imposed leave or even self suspension to pave way for free and fair investigations. Remember the investigators are most likely their juniors in the legal professional hierarchy. There are no winners with this one!

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  27. One man has managed to drive the Zambian economy into the stone age. Is the Judiciary immune to the influence of this power hungry individual?

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  28. Many of the Zambians are easily manipulated, all this confusion is because of one selfish man.

    I understand that he is exercising his democratic rights, but I don’t believe he is returning for the benefit of Zambians. So far, the following items have been confiscated. He intends to come back to reclaim his lost gifts.
    1. Esther Lungu K24 million
    2. Chiyeso Lungu K9 million
    3.Tasila Lungu K8million
    4. Lungu Proxies K80 million

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  29. The article is highly misleading. The JCC comes up with the recommendations and the President only acts on those recommendations in line with the constitution. See,Judges In Zambia should not think,they are the law unto themselves, they are not immuned from reprimand,suspension or being fired for that matter. They are not above the law,they are subject to the constitution and the people of Zambia!

  30. This is not entirely HH’s fault…the problem is HH is surrounded by vultures and they just want to make sure that HH stays in power beyond 2026 so they can continue eating…Gary Nkombo….Mweetwa…Jack Mwimbu….Hamaimbe…Hamasaka…Jito Kayumba…Masebo…Kawana…..all these are vultures and they want to continue stealing beyond 2026

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