In what was regarded as a crucial decision for the future of Zambia’s judiciary, today the Supreme Court issued a narrow and ambiguous decision allowing President Michael Sata the discretion to form a special tribunal chaired by the Malawian Judge Lovemore Chikopa.
The 100-page ruling took some four hours to read by Chief Justice Lombe Chibesakunda. Amid confusion from some premature reports from the courtroom, Justice Chibesakunda’s key determination was that judicial review could not halt a tribunal, as it was an independent body that could grant the suspended judges the right to be heard.
By a vote of 4 to 7, the Supreme Court resolved to advise the government against the formation of a such a tribunal as it is not necessary, however they did not go so far as to “order” that the president could not carry on with the initiative. President Sata acted within his constitutional powers to form the tribunal, the court ruled, although they recommended to him that he should not proceed given the constitutional issues raised by the tribunal.
“Although we agree that the President’s decision to appoint a tribunal was not ultra vires,” Acting Chief Justice Chibesakunda said, “we believe it would be advisable for the tribunal not to proceed due to the nature of issues raised and we make no orders with regards to costs.”
However, according to the dissenting votes of the other three Supreme Court justices, there were serious concerns that President Sata had improperly acted under Article 98, which grants powers to form tribunals, because he also has powers to appoint members to the Judicial Complaints Commission. The dissenting justices believed that the process had not been exhausted at the level of the High Court to determine whether or not President Sata had formed this tribunal rationally, and stated that by working through the existing Judicial Complaints Commission would have better protected the separation of powers.
The proposal of the tribunal had attracted serious criticism from a number of groups who argue that such a politically appointed tribunal risks depriving Zambia’s judicial officials of their security of tenure and independence from the executive and legislature, which are basic tenets of rule of law.
The Supreme Court application resulted from a petition filed by Supreme Court justice Phillip Musonda, and two High Court judges Charles Kajimanga and Nigel Mutuna following their suspensions for alleged “professional misconduct” in April 2012.
The Justices voting in favor of dismissing the case brought by Musonda, Kajimanga, and Mutuna were Lombe Chibesakunda, Mervin Mwanamwambwa, Hilda Chibomba, and Iren Muyovwe.
A number of observers consider today’s ruling the equivalent of a defeat for the three judges, as it is widely assumed that President Sata shall proceed with the formation of the tribunal which will have the remarkable power to suspend judges, which may cast a pall over the independent range of action for members of the judiciary in terms of political sensitive cases.
The three judges who had been suspended had all issed rulings in a case involving highly influential and politically connected figures: Fred M’membe, the owner and editor of the Post Newspaper, and Mutembo Nchito, the Director of Public Prosecutions, who is currently overseeing two trials against the former president.
M’membe and Nchito were formerly business partners in the bankrupt Zambia Airways, which had borrowed several million dollars from the Development Bank of Zambia (DBZ), and to date, have not repaid the loans totalling 14 million kwacha rebased. The two judges and one justice were involved in decisions that would have required the two men and their business group to repay the loan.
Over the entire period of time, more than a year, since the appeal was filed, the Malawian Judge Chikopa has remained in Zambia living off a generous government subsidy for housing and other expenses instead of being sent back home pending the result, a fact which has angered many civil society groups.