The State has asked the Constitutional Court to dismiss a matter in which suspended Livingstone magistrate Benjamin Mwelwa is seeking a declaration that acting Chief Registrar Charles Kafunda’s decision to suspend him for alleged judicial misconduct was illegal and unconstitutional.
The State has submitted that the disciplinary procedure that was taken against Mwelwa was legal and constitutional and does not amount to interference with his judicial independence.
In this matter, Mwelwa is seeking the Court’s declaration that that his suspension was illegal and unconstitutional.
Previously, Mwelwa had insisted that the court had the authority to hear and determine his matter.
He had argued that the Judicial Service Commission had no jurisdiction to determine charges of misconduct without a complaint being lodged by the Judicial Complaints Commission.
But the State, in its skeleton arguments, argued, through Janet Mazulanyika, an advocate from the Attorney General’s chambers, that the Judicial Service Commission, a creature of the Constitution, was also empowered by the Constitution to discipline erring judicial officers, which included Mwelwa.
She stated that Mwelwa was of a misconceived opinion that the Judicial Service Commission could only discipline him after a complaint had been lodged by the Judicial Complaints Commission.
Mazulanyika argued that it was therefore a fallacy for Mwelwa to insist that only the Judicial Complaints Commission was authorised to discipline erring judicial officers.
“We submit that part of this function as prescribed, includes the discipline of erring judicial officers as stipulated in section 15 of the Judiciary Administration Act. Clearly, the Judicial Service Commission is a competent body to discipline the petitioner upon a request from the Chief Administrator. The argument that only the Judicial Complaints Commission can lodge a complaint for the discipline of magistrates to the Judicial Service Commission is misguided,” she said.
Mazulanyika submitted that the Judicial Service Commission by statute, was the first public service commission by its preamble and had the jurisdiction to deal with Mwelwa in the manner it did.
She added that the matter was fit for determination under judicial review and not a petition, submitting that the correct mode of commencement of the matter was judicial review.
“The primary reliefs sought by Mwelwa are a declaration that the decision to institute a disciplinary committee made by public officers in exercise of a statutory duty, should be declared null and void or ultra vires. We submit that the correct mode of commencement is judicial review and not a petition. We are alive to the provisions of Order 15 Rule 1 of the Rules of the Constitutional Court Act no. 8 of 2016 which empowers this court to order the same reliefs that can only be awarded in judicial review” submitted Mazulanyika.
“However, we insist that peculiar only to judicial review is when an act or decision was made by a public officer in exercise of a statute.”
Mazulanyika prayed that the court dismisses the action with costs, saying disciplinary procedure that was taken against Mwelwa was legal and constitutional and did not amount to interference with his judicial independence.