HIGH Court judge Sunday Nkonde has dragged the State to court over the Judicial Complaint Commission’s decision to proceed to reopen a complaint lodged against him by Post Newspaper proprietor Dr Fred M’membe in 2017, disregarding the ruling by Lusaka High Court judge in charge Gertrude Chawatama.

Judge Nkonde, who has cited the Attorney General as the respondent, is seeking a declaration that JCC’s action to hear the complaint after judge Chawatama’s ruling under Cause No. 2018/HP/2011 is inconsistent with the provisions of Article 8(a) and (c) of the Constitution of Zambia as amended, and an order of certiorari to remove into the High Court for purposes of quashing the said decision.

He also wants a declaration that the party aggrieved by the decision of a High Court judge has the right to appeal and not take out a complaint before JCC, as well as, a declaration that his subjection to a procedure different from the one adopted for other persons appearing before them is unfair and a breach of Article 8 (d) of the Constitution of Zambia as amended.

In his petition filed into court on February 17, 2022, judge Nkonde submitted that he is seeking a determination of the breaches of the Constitution by JCC.

“The petitioner seeks a determination of the breaches of the Constitution by the Judicial Complaints Commission (JCC) as it is interfering with the judicial discharge of his functions by proceeding to reopen/rehear a complaint lodged with them by Fred M’membe dated February 17, 2017, disregarding the ruling by the High Court under Cause No. 2018/HP/2011,” read the petition.

Judge Nkonde stated that sometime in 2016, Andrew Chiwenda and other former employees of the Post Newspapers Limited commenced liquidation proceedings against the newspaper, which matter was allocated to him to adjudicate upon.

“In the course of adjudicating upon the matter, a number of interlocutory applications were made before the petitioner (Judge Nkonde) to make decisions inter alia, the application to appoint a provisional liquidator for the respondent company (Post Newspapers) herein, an application for leave to commence contempt proceedings and an application to join a party to the proceedings. The petitioner proceeded to discharge his judicial functions and made decisions on these applications among others, to which no party or aggrieved person made an appeal,” the petition read.

Judge Nkonde stated that sometime in February 2017, one of the shareholders of the Post newspaper, Dr M’membe, being aggrieved with the interlocutory decisions rendered by him, decided to lodge a complaint against him before JCC.

He stated that notwithstanding that the said matter was still active before him, JCC requested him to render his response to the complaint, failure to which the JCC would proceed to make its findings.

Judge Nkonde stated that JCC proceeded to hear and determine the complaint and consequently found him with a prima facie and submitted to the president that he be suspended as High Court judge to allow the commission to conduct a hearing of the complaint.

“The petitioner herein took out an application for judicial review under Cause No. 2017/HK/ 771 wherein he sought to challenge the decision of JCC to proceed with determination and hearing of the complaint when the matter was active before him. The parties under the matter entered into a consent judgement- wherein the decision of JCC was quashed. Sometime early January 2018, the complaint by Fred M’membe was revived. There was an exchange of correspondence between the petitioner, his lawyers and the respondent (JCC) requesting him to respond to the allegations adduced by M’membe against him. The judge raised issues in connection with one of the then members of JCC namely Mwangala Zoulomis to participate in the proceedings relating to the complaint in view of the fact of her being the petitioner’s inlaw,” the petition read.

“Notwithstanding the issue raised, JCC proceeded to hear and determine the complaint in the absence of the petitioner and consequently found the petitioner or judge with a prima facie and submitted to the president that the petitioner be suspended as High Court judge to allow the commission to conduct a hearing of the complaint by M’membe.”

He stated that following this decision, he proceeded to commence judicial review proceedings against the Attorney General under Cause No. 2018/HP/2011.

Judge Nkonde stated that on November 9, 2020, judge Chawatama rendered a ruling and correctly guided that the right route the complainant ought to have taken was to appeal to the Court of Appeal given the nature of the complaint.

He said despite the guidance by the High Court, the JCC have decided to proceed to reopen or hear the complaint by Dr M’membe dated February 10, 2017 and have summoned him to appear before them, arguing that JCC’s conduct is unconstitutional and thus illegal.