THE Judicial Complaints Commission (JCC) has submitted to the Constitutional Court that it has not interfered with the judicial discharge of High Court judge Sunday Nkonde’s functions by reopening Dr Fred M’membe’s complaint in a case involving Post Newspapers Limited.

JCC has submitted that it has the mandate to initiate the process of removal of a sitting judge on its own or on a complaint by a party.

The commission further states that it was within its mandate under Article 143 of the Constitution of Zambia to inquire into allegations of incompetence and gross misconduct against a sitting judge, whether the matter complained against was actively before that judge or not.

This is a matter in which judge Nkonde has dragged the State to court over the JCC’s decision to proceed to reopen a complaint lodged against him in 2017 by Dr M’membe, disregarding the ruling by Lusaka High Court judge in charge, Gertrude Chawatama.

In the said ruling delivered on November 9, 2020, judge Chawatama guided that Dr M’membe should have appealed to the Court of Appeal against Justice Nkonde’s decisions.

Judge Nkonde who 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.

But JCC has now asked the court to dismiss the said petition.

In its answer filed in the Constitutional Court, Wednesday, JCC stated that it has not interfered with the judicial discharge of judge Nkonde’s functions by reopening the complaint by Dr M’membe nor has it disregarded any ruling of the High Court.

JCC stated that the complaint lodged by Dr M’membe against judge Nkonde was not anchored on Dr M’membe being aggrieved with interlocutory decisions rendered by the judge under cause No. 2016/HPC/0518, but on judge Nkonde’s alleged breach of the provisions of the Judicial (code of conduct) Act No.13 of 1999 as amended by the Judicial (code of conduct) Act no.13 of 2006 in the exercise of his judicial function in the subject case.

The commission stated that in line with the Constitution and the Judicial (Code of Conduct) Act no.13 of 1999, the fact that case No.2016/HPC/ 0518 was at the material time active did not fetter the jurisdiction of the JCC to inquire into judge Nkonde’s alleged conduct contrary to Judicial (code of conduct) Act.

“By writing to the petitioner requesting him to respond to the allegations raised by the complainant, the Commission was giving the petitioner an opportunity to be heard,” JCC submitted.

JCC further stated that it was within its mandate under Article 143 of the Constitution of Zambia to inquire into allegations of incompetence and gross misconduct of a sitting judge.

“JCC under Article 144 of the Constitution of Zambia can initiate the process of removal of a sitting judge on its own or on a complaint by a party,” it further stated.

JCC stated that on March 1, 2018, following numerous requests that judge Nkonde responds to the allegations levelled against him, his advocates wrote to the commission stating that he would respond to the allegations levelled against him within 14 days but did not respond and opted instead to raise issues of disqualification against one of the members of the commission.

JCC stated that before the proceedings to render the ruling which found judge Nkonde with prima facie case, his concerns were adequately addressed by JCC as judge Nkonde was communicated to on the Commission’s decision.

The commission stated that by summoning judge Nkonde, it does not intend to reverse the rulings made by the judge.

JCC stated further that Judge Nkonde has lamentably failed to show that it violated any of the provisions of the Constitution of Zambia (Amendment) Act no. 2 of 2016.

The commission urged the court to dismiss the petition saying judge Nkonde was not entitled to any of the reliefs sought.