THE Lusaka High Court has lifted an injunction filed by Judge Sunday Nkonde preventing preventing the President from suspending him to pave way for judicial review over his alleged misconduct, following recommendation from the Judicial Complaints Commission (JCC) in 2018.
This a matter in which Judge Nkonde, as an applicant of an injunction, challenged the Commission’s decision of 14th November 2018 which found a prima facie case against him.
The Attorney General was the respondent in this case, while Messers Nchito & Nchito were cited as interested parties, being lawyers representing Fred M’membe, the author of a complaint letter against Judge Nkonde which was delivered to the Judicial Complaints Commission on February 10, 2017.
The decision of the JCC against Judge Nkonde was premised on “the evidence before the Commission and into the absence of a response from the accused judge to a complaint against him, and as such, it found that a prima facie case had been established.
“On 14 November 2018, the Commission examined the evidence i.e the letter of complaint against judge SB Nkonde SC’s without the judge’s response. On the basis of the evidence before the Commission and in the absence of the response from the judge, the Commission finds that a prema facie case has been established against Judge Sunday Nkonde SC. The Commission had decided to invoke the provisions of Article 143 and 144 of the Constitution to submit a report to the President for the suspension of the judge Sunday Nkonde, SC, from his office,” read the recommendation.
The Article 144 of the Constitution states that:
1. The removal of a judge may be initiated by the Judicial Complaints Commission or by a complaint to the Judicial Complaints Commission based on the grounds specified in Article 143.
2. The Judicial Complaints Commission shall, were it decides that a prema facie case has been established against a judge, submit a report to the President.
3. The President shall, within seven days from the date of receiving the report, submitted in accordance with clause (2), suspend the judge from office and inform the Judicial Complaints Commission of the suspension.
4. The Judicial Complaints Commission shall, within 30 days of the judge being suspended from office, in accordance with clause (3)-(a) Hear the matter against the judge on the grounds specified in Article 143 (b) and (d).
In this case, the Commission accordingly submitted a report to the President to suspend Judge Sunday Nkonde from office to allow the Commission conduct a hearing of the complaint.
In his application for injunction, Judge Nkonde sought an order of certiorari to quash the decision by the commission and that he be heard in accordance with the provisions of the law as the issues complained about to the commission were before the Constitutional Court.
He stated that the JCC failed to appreciate that the issues complained about him were active before the Constitutional Court, failed to separate the investigative and adjudicative process of the court and the Judicial Complaints Commission, failed to comply with basic tenets of the rules of natural justice with respect to fair hearing, and failed to heed the direction of the Supreme Court of Zambia that the circumstances dictate that the Judicial Complaints Commission should not proceed.
Delivering the judgement in chambers, Judge Getrude Chawatama found that it was not the place of the Judicial Complaints Commission to interfere with pending cases before a judge.
“It is not the place of the Commission to interfere with pending cases before a judge unless the complaint is one of delay. Other complaints should be investigation only after a matter has been concluded. The importance of this point is that the Commission being a disciplinary body cannot change a judicial decision or the judicial finding of fact expressly or impliedly. It is a fact which cannot be departed that a judicial decision can only be reversed by a higher court. The Comission cannot be seen to be an appellant court that can change a judge’s ruling. This limitation of the commission ought to be understood,” Judge Chawatama said.
“A misconduct complaint is not an alternative for the appeal process and is not the appropriate method to seek a substantive judge. A plaintiff or defendant who is dissatisfied with a legal ruling in his or her case ought to wait until the ruling has been delivered and then appeal to the appropriate appellant court. This is what the complainant was expected to do. I am of the view that serious sanctions of suspension or removal should be rare and be reserved only for the most egregious instances of misconduct. I am not saying that the judiciary should not support measures that hold it accountant. What I am saying is that the Judiciary should guard its independence jealously”
Chawatama however, went ahead to lift the injunction which protected judge Nkonde from being suspended and order that both parties bear their own costs.
“I agree with the response that the removal of a judge is governed by the Constitution of Zambia. The ex-parte leave granted to the applicant is hereby discharged. The reason for the discharge is that I am fully persuaded that the main matter is bound to fail. Leave to appeal is granted. Each party to bear its own costs,” ruled the judge.