By Esther Chisola
The Judicial Complaints Commission (JCC) has told the Court that the three fired Constitutional Court Judges were removed from office for illegally setting aside a full decision of the Constitutional Court made on September 2 ,2016 without the authority of the president of the constitutional Court as provided for by the law.
The three judges include Annie Mwewa Sitali, Mugeni Siwale Mulenga and Palan Mulonda.
In this matter, the former Constitutional Court Judges sued the state seeking an order for damages arising from their removal from office after the “illegal and incompetent recommendation” by JCC.
The former judges also want an order for special damages and full retirement benefits in accordance with the judges conditions of service Act.
The trio, who have cited the Attorney General as the respondent, further want their accrued benefits and to purchase personal to holder motor vehicles.
But according to an affidavit in opposition to affidavit verifying facts filed by Brian Gombwa JCC commission secretary, the commission prayed for the court to dismiss the application for leave to commence Judicial Review as the same was not properly before the court.
“That the full bench of the Constitutional Court before adjoining the matter of Hakainde Hichilema and Geoffrey Mwamba against Edgar Lungu and Inonge Wina, made a ruling to the effect that the parties would be given two days each within which to present their cases, from 5-6 September, 2016 for the petitioners, while the respondents’ were given September 7-8, 2016 to file their defence,” he stated.
“That on Monday, September 5, 2016, before commencement of the hearing of the petition, the applicants presented a ruling to the effect that the court had no jurisdiction, when in fact the issue of jurisdiction was already dealt with by the full court on Friday, September 2, 2016. This prompted the judge president, Hildah Chibomba and Professor Margaret Munalula to craft their dissenting rulings in a haste.”
Gombwa stated that the decision to dismiss the petition was made in peculiarity by the applicants and that the applicants had no right to overturn the full bench decision in the absence of the judge president as per procedure.
“That there were some rulings which were rendered in 2017, in respect of the complaints that were lodged with the JCC, each time a complaint is lodged before the commission, they are mandated by law to investigate and render a ruling. That the complaint of Moses Kalonde was dissimilar with the earlier lodged complaints against the applicants,” he stated.
“That the commission was not satisfied with the response of the applicants and formed the opinion that the complaint of Kalonde raised novel issues which needed to be addressed through a full inquiry. That the applicants’ failure to address the complaint of Kalonde on its merits prompted the commission to hold a full hearing to accord the applicants a full hearing which they were given.”
He further submitted that the commission had jurisdiction to hear the complaint and that the proceedings were held within the confines of the law.
“That the complaint of Joseph Busenga was dissimilar to that of Kalonde, prompting the Commission to recommend the suspension of the judges and hold a full hearing. That the reasons for dismissing the preliminary issue was adequately captured in the ruling of the commission,” he stated.
“That the commission found a prima facie case against the applicants. The respondent could not hold a hearing of a prima facie case owing to the fact that the complainant indicated that he was going to rely on the complaint and documents filed before the commission.”
Gombwa stated that the report of a prima facie case is first served on the President before it is served on the complainant and respondent.
“That the notice of hearing was published in the newspaper by way of substituted service as counsel with conduct of the matter on behalf of the respondents refused to acknowledge service of the notice of hearing. All the proceedings were held in camera,” said Gombwa. “That there is no law which precludes parties from submitting their arguments on a public holiday. The Commission was mandated to conclude the hearing within 30 days from the date the applicants were suspended hence the decision to compel the applicants to file the said submissions on a public holiday.”
