Retired Supreme Court Judge Phillip Musonda has made an application in the Lusaka High Court for leave to apply for judicial review to refrain the Judge Chikopa Tribunal from proceeding to investigate him for alleged professional misconduct.

Judge Musonda’s defense lawyers say their client cannot appear before the tribunal because he has resigned from judicial service. Judge Musonda also wants the Lusaka High Court to stay any preliminary decisions made by the tribunal against him

Musonda resigned as Supreme Court judge when he was about to be probed by the Judge LovemoreChikopa Tribunal for alleged professional misconduct.

He was to be investigated together with two High Court judges, Nigel Mutuna and Charles Kajimanga concerning the same.

Dr Justice Musonda has challenged the decision of the tribunal to proceed with the hearing against him saying there was no need for such as he has ceased from being a judicial officer.

He wants the court to quash the decision of the tribunal saying there was no way it could proceed because he had stopped serving in the judiciary by way of resignation under the law.

He also wants the court to order that the tribunal should not proceed to hear or make any directives or determinations against him following his resignation as a Supreme Court Judge.

Dr Justice Musonda wants that all formal proceedings to the tribunal scheduled to commence on July 15, 2013 and any preliminary decisions made by the tribunal to be stayed until after the hearing of his motion for summons or until further order.

He stated in his in ex-parte application for leave to apply for Judicial Review that the decision by the tribunal to proceed hearings against him is illegal as he had exercised his Constitutional right to resign which resignation has been accepted by his appointing authority.

He said “the applicant has ceased being a judicial officer within the meaning of section 2 of the Judicial Code of Conduct Act number 13 of 1999. The objective of the inquiry under Article 98 (5) has been achieved by the resignation and the jurisdiction of the tribunal overridden.”

Dr Justice Musonda said the decision of the tribunal was illegal in terms of Article 14 of the Constitution because it was tantamount to forced labour by assuming him to be a serving judge when he had already effectively resigned.

He charged that the decision of the tribunal is ultra-vires as he was no longer a sitting judge and that its sitting after his resignation would be illegal in terms of Article 23 of the Constitution.

He said the decision of the Tribunal to proceed against him also amounted to discrimination because in two other similar cases, proceedings of the tribunal were terminated after the two individuals had resigned.

He said the proceedings would be illegal and contrary to Article 18 of the Constitution as it violated his fundamental right to a fair trial in the light of an order for stay of proceedings granted to High Court judges Nigel Mutuna and Charles Kajimanga who were jointly charged with him and had a joint defence.

Dr Justice Musonda said if the tribunal went ahead against him alone, he would be deprived of the benefit of Judge Kajimanga’s evidence.

He further said the Tribunal was acting in excess of jurisdiction by insisting to proceed against him by inviting unknown persons to come and testify against him on matters that were outside the knowledge of such persons as the allocation of cases was an internal matter within the judicially.

He said it was unreasonable for the tribunal to proceed and determine a matter that has already been determined by his resignation.

He said the same would be unreasonable and disrespectful of the Supreme Court ruling as it would ignore its wise and timely advice for it not to proceed with the hearings because there were Constitutional issues involved in the matter.

A 80 year old blind man of Fitaliyano village in chief Chipalo of Luwingu district in the Northern Province who was accused of defilement of a girl below the aged of 16 years has been acquitted by Luwingu magistrate court.

Magistrate Davy Simfukwe acquitted Anderson Mutambo because of lack of corroborative evidence and the prosecution failed to establish beyond reasonable doubts the age of the girl.

Mutambo was facing one count of defilement contrary to section 138(1) of the penal code chapter 87 of the laws of Zambia as read together with the act number 15 of 2005.

Particulars of the offence were that Mutambo on 17th January 2013 did have unlawful carnal knowledge of a girl under the age of 16 which he pleaded not guilty.

The girl told that court that Mutambo defiled her when her mother had gone to the funeral and she remained alone at home.

She told the court that her grandfather called her to his bed room where she was asked to undress and they started having sexual intercourse.

She explained to the court during the sexual intercourse, she did not cry neither did she shout for help because she had had sex with Mutambo on five different occasions in his bedroom and she did not reveal to anyone in the village.

The girl however only revealed her ordeal when she became sick and the matter was reported to the Zambia police station.

Delivering a 30 minutes judgement Magistrate Simfukwe said ther biological mother to the girl Ivy Mwamba told the court that she could not remember the exact date and the month when her daughter was born but only remembered the year of which she was born.

Mwamba 35 of Fitaliyano village said that her daughter was born in 1999 and that she could not produce an under-five clinical card to prove the age because her house was set ablaze by unknown people resulting to an under-five clinic card and other items burnt in an inferno.

Another witness a medical doctor Dr Brian Chibosha told the court that he attended to the girl on 22nd January 2013 and his findings were that, there were no visible bruises on her private parts but the hymen was broken.

Mr. Simfukwe said that according to Dr Chibosha’s opinion there was no penetration and there was no spermatozoa found in the vagina.

“having summarized the whole evidence in this matter I will now state findings of the fact, the girl was defiled by somebody as per medical evidence produce herein and marked P1, at the time of the alleged defilement the girl was said to be 14 years old having been born in 1999,” he said.

“There was no proof of the exact age of the girl as the mother could not remember the day and the month when the girl was born and no documentary evidence was adduced to that effect, the girl was examined by a medical doctor on 22nd January 2013 five days after the alleged defilement had occurred,” magistrate Simfukwe observed.

Mr. Simfukwe said having stated the facts of the case, the fundamental question that ought to be answered everyone is who defiled the girl.

“In an attempt to answer the above question I will proceed to apply the law to the above facts. In order to approve the offence of defilement the following ingredients must be established that the girl was below the age of 16 at the time of the alleged defilement, the accused had unlawful carnal knowledge and that there was penetration of the manhood into the vagina of the girl,” he explained.

Mr. Simfukwe explained that in resolving the case the following legal issues must be contained such as the identity of the offender, the age of the girl and the issue of corroborative evidence respectively.

“In sexual offences there must be corroboration of both the commission of the offence and the identity of the offender in order to eliminate the dangers of false complaint and false implication,” he added.

And passing judgement, Mr. Simfukwe said there was no corroboration of the girl’s evidence in this case and coming to the medical examination, the girl was alleged to have been defiled on the 17th January and was only medically examined by a medical doctor on 22nd January 2013 which was five days after the alleged defilement.

He said the prosecution did not explain why it took five days before the victim could be examined adding that it was difficult for the court to conclusively hold that there was no any other person apart from the accused who tempered with the girl during five days period before she was medically examined.

“There is no court properly directing its mind to the facts of this case and the law applicable that could uphold conviction. Having said that I hold that lingering doubts have been created in my mind as to the guilty of the accused person,” he said.

Mr. Simfukwe said court found Mr. Mutambo not guilty of the offence and acquitted him forthwith and set him at liberty.

The Council of Churches in Zambia (CCZ) has described as unreasonable an order by Justice Minister Wynter Kabimba for the Technical Committee of the Constitution Review process to submit an incomplete draft constitution as a way of sticking to the earlier timeline of completion by June month end.

This is contained in a statement released to the media and signed by the General Secretary Rev Suzanne Matale.

A resolution passed at the end of CCZ Board meeting held in Lusaka’s Makeni Ecumenical Centre on 28th June, 2013, described the development as unfortunate and sad.

“This raises questions as to the sincerity of the Patriotic Front government to deliver a people driven constitution. The action is to say the least malevolent and intended to derail the effort of Zambians to give unto themselves a good constitution, ” read the statement

“The church believes that the constitution review process which is currently underway is a justice issue and the Zambian people demand, justice, honesty, righteousness, fairness and integrity.

CCZ demanded that government allows for the extension of the Technical Committee’s mandate to allow for the completion of the draft constitution before it is handed over to the minister of justice at least up to end of July, 2013.

CCZ said that he constitution making process in Zambia has been on going for 17 long years, and extending the period of this particular process for another one month was not too much to ask.

“Allowing for an incomplete draft to be submitted will not only be unfair and unreasonable but also a waste of both time and resources, ” read the statement.

“The church is therefore calling on government to release required additional financial resources towards the completion of the constitution review process and extend their mandate for the required one month up to 31st July, to allow them deliver a complete and satisfactory draft constitution according to the will of the people, ” concluded the release.

ZAMBIA should come up with a Republican Constitution which will have strong public support to enable it last a test of time, United States of America (USA) ambassador to Zambia Mark Storella has advised.

Mr Storella said although he did not want to have a clear position on whether or not there should be a referendum for the constitution, it is very important that the final constitution had very strong public support.

He was speaking during a press conference in Livingstone on Monday shortly after former USA President George W Bush and his wife left Harry Mwaanga Nkumbula International Airport for the African First Ladies Conference in Tanzania.

“I don’t have a clear position on the question of whether or not there should be a referendum on the constitution but let me say that Zambia should follow Zambian law.

“It is very important to have very strong public support when launching an important document like a constitution,” he said.

Mr Storella said Republican constitutions were written for future generations hence their drafting should take a long term view.

“My main pieces of advice are that Zambia is not USA and therefore you have your own country and your own history.

“Your constitution should grow out of your own historical experience although you can learn from mistakes of the past,” he said.

Mr Storella said his forefathers in America met about 224 years ago in Philadelphia to write a new constitution after learning from mistakes of the past.

He said he met the Technical Committee on drafting the Zambian constitution and observed that the Committee had been extremely serious with the exercise.

“The Committee has done a lot of work to build on what the predecessors did and did not want to reinvent the will.

“The process of consultation in all provinces and districts has been active and important to create public support,” he said.

The Technical Committee on Drafting the Zambian Constitution is soon expected to submit a final document to Government.

Mr Storella also said USA President Barrack Obama was placing a lot of value on Africa as witnessed in his recent visit to three African countries namely Senegal, South Africa and Tanzania.

He said Mr Obama recently met a number of African justices including Zambia’s Supreme Court Chief Justice Lombe Chibesakunda in Senegal during his visit to the continent.

The repeated pattern of illegal interventions by the Patriotic Front (PF) government with regard to the passport of former Zambian President Rupiah Banda speaks volumes about the political persecution driving the state’s case against him, says his international lawyer Robert Amsterdam.

“These are willful actions of a criminal government, which believes it has the impunity to ignore court orders in order to attack and disparage one of the nation’s most distinguished statesmen, whom they see as a threat to their plans to return Zambia to a one-party state,” said Amsterdam. “There can be no plausible excuse for this continued manipulation of the former President Banda’s right to travel. It is a blatant and flagrant abuse of the law, and we intend to hold these PF officials accountable.”

Most recently, the PF government reportedly revoked the former president’s diplomatic passport, representing a violation of an act of parliament, the former presidents Benefits Act. On two previous occasions, the government ignored specific orders from the Lusaka High Court allowing former President Banda to travel abroad to attend several distinguished invitations. This past week, the Court ruled that the Government Joint Investigative Team must release Banda’s passport, while lawyers representing the former president have been repeatedly obstructed from obtaining his travel documents.

“These actions confirm that the PF government have moved toward a bona fide show trial state – one cannot take any claim they make at face value,” said Amsterdam.

The PF government, under the direction of President Michael Sata, Justice Minister Wynter Kabimba, and Director of Public Prosecutions Mutembo Nchito, have embarked on a determined campaign to attack democratic opposition, including two separate politically motivated trials against former President Banda, says Amsterdam. These bogus cases and arrests are occurring in the context of repeated and unnecessary by-elections triggered by bribed defections to the ruling party, and numerous incidents of state-sponsored violence that has threatened the country’s political stability.

“The fact that the PF have to break the law in order to persecute former President Banda explains a lot about the lack of substantive grounds to their allegations,” said Amsterdam. “When a government acts like a criminal to attack its opponents, when it ignores court orders and sends its cadres out into the streets to wield violence over citizens, we are increasingly approaching something that can be described as a dictatorship. We intend to contribute a robust international effort to put an end to these abuses immediately, before it is too late.”