Former Environment and Natural Resources Minister William Harrington and another have filed a notice of an application for leave to apply for Judicial Review against the Deputy Chief Justice’s refusal to a appoint a tribunal to investigate Lands Minister Jean Kapata’s conduct over allocation of plots at Forest Reserve No 27.
Harrington and Robert Chimambo, who have cited the Attorney General as respondent, have submitted to the Lusaka High Court that Kapata, whose Ministry is in charge of land matters, facilitated the de-gazetting of a major portion of the Lusaka East Local Forest Reserve No 27 and the subsequent allocation of a plot to herself and other politically exposed persons.
The two have also applied for interim relief for a stay of the decision of deputy Chief Justice justice Michael Musonda to refuse to appoint a tribunal under Order 63 Rule 3 of the Supreme Court rules 1999, until after determination of the application.
Harrington and Chimambo also want an interim order that justice Musonda appoints a tribunal forthwith as Kapata is likely to conclude her term of office as a member of parliament and Cabinet Minister before the matter is determined by the court as it could be rendered an academic exercise.
According to a notice of an application for leave to apply for Judicial Review filed in the Lusaka High Court principal registry, January 28, Harrington and Chimambo stated that on August 19, last year, the two petitioned the Chief Justice to appoint a tribunal to investigate whether or not Kapata was in breach of the Act when she influenced, recommended and facilitated the de-gazetting of a major portion of the Lusaka East Local Forest Reserve No 27 and the subsequent allocation of a plot to herself and other politically exposed persons.
The two stated that on September 4, 2019, the deputy Chief Justice acknowledged receipt of their petition and informed them that the Chief Justice had recused herself and therefore assigned him with the responsibility to deal with the matter.
Harrington and Chimambo, however, stated that on October 2, 2019, the deputy Chief Justice insisted that Section 13(1) of the Act provides that the Chief Justice must be provided with particulars of the breach or breaches alleged.
They added that the deputy Chief Justice went on to further state that it was within his province to examine or assess or analyse those breaches or alleged breaches with a view to making any determination, whether as to their merits or otherwise.
Harrington and Chimambo stated that in response to the deputy Chief Justice’s demands, they, on November 18, 2019, submitted what they believe to be factual particulars of basically three breaches of the Act committed by the Minister.
The applicants alleged that Kapata, among other breaches, facilitated for her private economic and pecuniary benefit by the allocation of property No LUSAK/LN52062 to herself and also facilitated the allocation of other properties to politically connected persons in the controversially degazetted portion of the Lusaka East Forest Reserve No. 27 that compromises the underground aquifer and water catchment and recharge when she knew or ought to have known that the information about the availability of plots in the ecologically sensitive area not publicly available.
Harrington and Chimambo, however, stated that on December 27, 2019, the deputy Chief Justice declined their invitation for him to appoint a tribunal based on his findings and without taking into account that they had carried out their own investigations.
The duo stated that being unhappy and dissatisfied with the “surprising and unexpected change of position”, they notified the deputy Chief Justice of their intention to contest his decision not to appoint a tribunal and thereby denying them their rights to be heard.
Harrington and Chimambo contended that the deputy Chief Justice’s decision of December 27, 2019 to refuse to appoint a tribunal to investigate allegations of misconduct, procedural impropriety and abuse of authority of office by Kapata was ultra vires section 13(3) of the Act.
“The deputy Chief Justice’s demand to be furnished with factual allegations which would make out a prima facie case and his decision and action to carry out his own investigations and consultations before appointing a tribunal is contrary to the administrative role that he is supposed to play according to section 13(1) of the Act. The deputy Chief Justice clearly has no discretion in the matter other than appointing a tribunal upon receipt of a complaint,” they stated.
“Only the tribunal, once appointed, has discretion to determine whether the complaint was frivolous or not according to section 14(9) of the Act.”
Harrington and Chimambo argued that the role of the deputy Chief Justice, according to section 13(3) of the Act, is to notify the President and the Speaker of the National Assembly of the allegations and to appoint a tribunal.
The two are now seeking an order of certiorari to quash justice Musonda’s decision to refuse to appoint a tribunal to investigate Kapata’s various allegations of misconduct.
The applicants are also seeking an order of mandamus to oblige justice Musonda to reconsider the decision to refuse to appoint a tribunal after receipt of written allegations giving factual particulars, among other reliefs.