The Constitutional Court has ruled that it has jurisdiction to hear a matter in which suspended Kalomo Magistrate Besa Mutale is challenging his dismissal from employment on allegations of drinking on duty.

The Court has consequently dismissed the State’s preliminary issue in which it had asked the Court to throw out the matter, arguing that the matter should have been commenced by way of complaint before the Industrial Relations Division of the High Court and not as a petition before the Constitutional Court.

Justice Mungeni Mulenga has ruled on behalf of other Constitutional Court judges that the petition is inviting the court to consider the respective constitutional mandates in Articles 220 and 236 of the Judicial Service Commission (JSC) and Judicial Complaints Commission (JCC) in respect of disciplinary processes or procedures against Mutale as a judicial officer.

She added that it essentially places the core of the petition under the court’s jurisdiction in terms of Article 128 (1) of the Constitution.

In this matter, Mutale has sued the Attorney General in the Constitutional Court, challenging the decision of the Judicial Service Commission (JSC) to dismiss him from employment on allegations of reporting to work drunk and drinking on duty.

He wants the Court to declare that the Judiciary management in dismissing him abrogated Article 236 of the Constitution and should be declared null and void.

Previously, the State raised a preliminary issue that Mutale’s action was an administrative issue arising from his employment relationship between him and JSC, hence it should have been commenced by way of complaint before the Industrial Relations Division of the High Court.

Arguing the preliminary issue, acting senior State advocate D. Mulondiwa submitted that while on one hand, the constitutional duties of JCC related to dealing with complaints regarding the manner in which a judge or judicial officer discharges their judicial functions, JSC on the other hand, had powers to hear appeals and discipline a judicial officer in its employment.

She argued that if Mutale was aggrieved with the manner in which his case was dealt with by JSC, he ought to have moved the Industrial Relations Division pursuant to section 85 (3) of the Industrial and Labour Relations Act, which gives the Industrial Relations Division original and exclusive jurisdiction to hear and determine any dispute between an employee and employer.

Mulondiwa further argued that employment-related matters do not fall under the Constitutional Court’s jurisdiction, therefore, the Court cannot hear the employment matter that has been disguised as a breach of the Constitution.

She concluded that the matter was improperly before the Constitutional Court and ought to be dismissed.

But Mutale’s lawyer L. E. Eyaa submitted that this was a proper matter for the Court’s consideration because Mutale alleges that there was an abrogation of Article 236 (2) of the Constitution, thus, qualifying it to be a constitutional matter.

And delivering a ruling on behalf of Constitutional Court judges Annie Sitali, Enock Mulembe, Palan Mulonda and Prof Margaret Munalula, Justice Mulenga dismissed the State’s preliminary issue.

She noted that Mutale’s petition was inviting the Court to consider the respective constitutional mandates in Articles 220 and 236 of JSC and JCC in respect of disciplinary processes or procedures against him as a judicial officer, thus, placing the core of the petition under the court’s jurisdiction in terms of Article 128 (1) of the Constitution.

“While it is accepted that the issues highlighted in the petition arose out of an employer-employee relationship, it is also apparent that the petition is inviting us to consider the respective constitutional mandates in Articles 220 and 236 of the two commissions in respect of disciplinary processes or procedures against the petitioner as a judicial officer or magistrate. This will certainly entail this Court’s consideration of Articles 122 and 236 of the Constitution, which are alleged to have been contravened,” ruled Justice Mulenga.

“The respondent’s preliminary issue fails and we accordingly dismiss it. Costs will remain in cause.”