THE JUDICIAL Complaints Commission (JCC) has objected to an application by former High Court judge Joshua Banda to stay President Hakainde Hichilema’s decision to remove him from the said office.
JCC Secretary Naisa Makeleta has submitted to the Constitutional Court that there is nothing to stay as the President’s decision has already been executed and judge Banda is in fact no longer a judge of the High Court.
This is a matter in which judge Banda has sued the State, seeking an interim order to stay the President’s decision to remove him from the office of Judge of the High Court.
He wants a declaration that the jurisdiction of JCC to hear complaints against judges does not extend to matters that happened prior to a judge’s appointment to the office of Judge as the same is the preserve of the President, Judicial Service Commission (JCS) and the National Assembly.
Justice Banda who cited the Attorney General, also wants an order to quash the report of the JCC together with its findings and recommendations to the President regarding him for being unconstitutional and a declaration that his removal from office by the President was null and void ab initio.
But in an affidavit in opposition to the affidavit in support of summons for an order to stay the President’s decision, Makeleta argued that President Hichilema acted within the constitution and that Justice Banda’s petition did not have high prospects of success, as he had used the wrong mode of commencement.
Makeleta further argued that the procedures used by the commission were within the confines of the law and that justice Banda had not suffered any injustice.
“The Judicial Complaints Commission is an important body performing its constitutional mandate to deal with the discipline of the judicial officers. The JCC acted within the confines of the law and any challenge to the procedure of the Judicial Complaints Commission cannot be by way of the petitioner. The commission submits that the petition does not have high prospects of success as the petitioner has come to court using the wrong mode of commencement,” the affidavit read.
The commission argued that there was nothing to stay as the decision of the President had already been executed and that the petitioner was in fact no longer a judge of the High Court.
JCC further submitted that the state and the public were more likely to suffer prejudice as the petitioner could not be sitting as a judge of the High Court while the proceedings were taking place.
“The petitioner is not likely to suffer any irreparable injury that cannot be compensated to him in form of damages, in whichever form. The petitioner may be compensated in damages and in fact, the public at large is going to be impacted in the negative if the petitioner is allowed to continue sitting and hearing matters, especially of a criminal nature. Further that denying this stay is what protects the constitutional order of this country and serves the more important aspects of public interest as members of the public shall be expected to appear before the petitioner,” read the affidavit.