By Esther Chisola
Attorney General Mulilo Kabesha has asked the Constitutional Court to dismiss Green party leader Peter Sinkamba’s petition where he is challenging the President’s decision to suspend three constitutional court judges.
And the Judicial Complaints Commission (JCC) has told the court that Sinkamba has no interest whatsoever in the suspension of three constitutional court judges.
The commission has stated that Sinkamba has no right to commence any legal action on behalf judges because he has not been aggrieved nor directly affected.
In this matter, Sinkamba petitioned JCC and the Attorney General as respondents respectively, challenging the legality of President Hakainde Hichilema’s decision to suspend three judges based on a recommendation by the Judicial Complaints Commission (JCC).
The three suspended judges include Justice Annie Mwewa Sitali, Justice Mungeni Siwale Mulenga and Justice Palan Mulonda.
In his submissions, Sinkamba argued that the JCC’s decision to review its 2016 ruling, which cleared the judges of gross misconduct, contravened Article 5(2) of the Constitution and was therefore, illegal and void.
He sought a declaration that the JCC’s recommendation for the judges’ suspension was unlawful and requested an interim order to stay the suspension until the case was concluded.
But in an affidavit in opposition to the application to stay the decision of the President, in the skeleton arguments filed by the Attorney General’s chambers, Attorney General Mulilo Kabesha contended that the petitioner had not demonstrated how he was aggrieved or rather affected by the decision of the President to act on the recommendation made to him by the commission as mandated under article 144 of the constitution of Zambia.
“We submit that this is an abuse of the court as the petitioner cannot commence an action for the sake of it. Only persons who are specifically affected by the matter have locus standi in it and can bring such an application and claim for such relief,” he stated.
Kabesha submitted that the fact that the petitioner had made a complaint before the commission in 2016 did not give him the requisite standing to make such an application before the court.
“The petitioner is further required to also demonstrate that he is likely to suffer irreparable injury that he cannot certainly be compensated with in damages, that his matter has prosepceta of success and that the respondent will not suffer any prejudice in the event that this order is granted,” he stated
Kabesha submitted that the application for an interim order to stay the decision of the President suspending the three judges was fundamentally flawed and should be dismissed as there was nothing for the court to stay at this juncture.
“The decision of the President was communicated on September 24, 2024 and already took effect, as the power was already exercised as recommended by the commission. This is evident from the fact that JCC has already rendered it’s reports to the President in line with article 144 and the President has acted on this report by suspending the judges in line with article 144,” he stated
Kabesha further submitted that there was nothing for the court to stay as based on the report by the commission to the President, judges had since been suspended.
“Further, the petitioner has no sufficient interest to bring this matter before this court and is not entitled to such a relief. We pray that this court should accordingly dismiss this application and grant costs to the respondent,” submitted Kabesha.
And in opposing Sinkamba’s submissions, JCC acting commission secretary Brian Gombwa, submitted that the commission received a complaint in May, 2024 from Moses Kalonde against the three Constitutional Court judges.
Gombwa stated that upon consideration of the complaint in accordance with article 144(2) of the constitution Act. No.2 of 2016, the commission made a recommendation to the Republican President resulting in the suspension of the three judges to pave the way for investigations and disciplinary proceedings.
“The petitioner has no locus standi to make this application before this court. The petitioner’ has no interest whatsoever in the matter before this court as he has not been aggrieved nor directly affected. The law provided that when the JCC establishes a prima facie case against a judge, a recommendation shall be submitted to the President,” stated Gombwa.
He submitted that the law mandated the President to act on the report by suspending the said judges from office within 7 days to pave the way for disciplinary proceedings.
“The law does not give any discretion to the President to ignore the report submitted to its office. The fact that judges have security of tenure does not shield them from the provisions of the law if found wanting and the suspension was done in accordance with the provisions of the constitution relating to the procedure of removal of a judge from office,” he stated.
Gombwa further stated that this was not a proper case to grant a stay of the President’s decision to suspend the three judges.
