By Agness Changala
Former Kabushi Member of Parliament Bowman Lusambo has lost a case in the Constitutional Court in which he was challenging Chief Justice Mumba Malila’s decision to administratively set up the Economic and Financial Crimes Court.
Delivering judgment yesterday, Judge Mapani Kawimbe who delivered on behalf of four other judges stated that Lusambo’s petition lacked merit and the court found no Constitutional issues for it to consider.
“In the absence, therefore, of any evidence that the Judicial Service Commission (JSC) in the exercise of the power to transfer the 10 was influenced by UPND cadres through the alleged demonstration at the subordinate Court at Lusaka, this claim also fails for lack of merit. We, therefore, find that there are no Constitutional issues for our consideration. The purported claim is therefore, misconceived and accordingly dismissed,” Judge Kawimbe said.
“Consequently, the petition is wholly dismissed forthwith for lack of merit.”
In this case, Lusambo had his property restricted by law enforcement agencies, arrested and arraigned before the Economic and Financial Crimes Court (EFCC).
Lusambo cited the Attorney General as the defendant seeking an order and declaration that the setting of the Economic Crimes in the High Court following pronouncements by the executive and supported by the judiciary amounted to setting up courts for a targeted group of people.
He was seeking an order and declaration that the setting up of the Economic and Financial Crimes Court administratively at the subordinate court level was in breach of Article 120 (3) (c) of the Constitution and was unconstitutional and illegal.
He further sought an order and declaration that the setting up of the Economic and Financial Crimes Court (EFCC), administratively at the subordinate court level was in breach of Articles 120 (3) (c) of the Constitution and was therefore, unconstitutional and illegal among others.
The state opposed Lusambo’s petition saying EFCC although established administratively at the Subordinate Court level was administered by the Subordinate Court Act chapter 28 of Laws of Zambia in terms of jurisdiction and powers.
It stated that no new subordinate courts had been created and that the existing magistrates had been merely assigned additional responsibilities.
With regard to the EFCC at the High Court level, the State submitted that the composition of the court was provided for by Statutory Instrument no 5 of 2022 and the magistrate did not at any point interpret the Constitution and there was therefore, no breach of Articles 128 (2) and 119 (1) of the Constitution as alleged.
On the transfer of 10 magistrates, the respondent stated that the transfers were not in breach of Articles 122 of the Constitution as magistrates were transferable.
After considering the arguments from both parties, the judges stated that the court was by administrative arrangements, created to hear and determine matters relating to economic and financial crimes in addition to its existing jurisdiction.
They stated that other specialized courts in the Subordinate Court had been established in a similar manner and these included the Gender Based Violence Court and the Road Transport and Safety Agency (RTSA) fast truck court.
“It is, therefore, clear that the Chief Justice did not violate Article 120 (3), ( a) and (b) when he set up the EFCC at the Subordinate Court and High Court. This claim is bereft of merit and is accordingly dismissed,” judge Kawimbe said.
On the High Court, the judges stated that the composition of the court was provided for under section 4 of SI no 5 of 2022 and the rules of the High Court were applicable to this division of the High Court.
They ruled that the EFCC High Court division was therefore, properly constituted and its creation did not violate Article 120 (3) (a) and (b) of the Constitution.
“This claim is ill-fated and is dismissed for lack of merit,” she said.
On Lusambo’s claim that EFCC was created following pronouncements by the executive and supported by the judiciary, the court stated that these claims were not founded and dismissed them for lack of merit.
On the issue of transferring 10 magistrates, the judges ruled that the JSC had the right to transfer any judicial officer to any duty station where his or her services may be required.
They stated that there was no law that required the consent of any such officer before a transfer was effected.
The case was heard by a panel of five judges who include deputy constitutional president Arnold Shilimi, Martin Musaluke, Mathews Chisunka, Mudfford Mwandenga and Kwimbe.
