Canadian based lawyer Elias Munshya says Chief Justice Ireen Mambilima is not above the law to be disciplining lawyers and judges who are seen to be against the state without just cause.
And Munshya has threatened to sue Justice Mambilima if she does not respond to his letter within 60 days.
In a letter dated September 12, 2017 addressed to Justice Mambilima, Munhsya said it was illegal for the Judiciary to suspend Livingstone magistrate B. Mwelwa for simply referring an ambiguous matter to the Constitutional Court for determination.
“Zambians must unequivocally support your gallant effort to fight corruption within the judiciary. Be assured of my prayers and best wishes. However, any effort by the judiciary to fight corruption within its ranks must be done in a way that inspires confidence and follows the letter and spirit of the law. Abuse of the law while trying to enforce the law is still abuse. As citizens, we have a duty to hold all arms of government accountable and I hope you will pay due attention to this letter,” Barrister Munshya wrote.
“The Judiciary suspended honourable Mwelwa, a class 2 Magistrate from Livingstone for referring the matter he was hearing to the Constitutional Court for determination of what he believed to be a Constitutional question. The question was whether Constitution 2016 had changed the Director of Public Prosecution’s prerogative to enter a nolle prosequi. Apparently, your management did not take kindly to this and you suspended the magistrate while the matter was still being heard.”
Munshya argued that adjudicators were not obliged to decide cases according to the wishes of the state.
“I register my strong disagreement with your management’s illegal decision. If this suspension is tolerated, it will erode confidence in our Judiciary and magistrates will fear administrative retaliation if they ruled in a manner that goes against the wishes of management. Zambian adjudicators do not owe duty to decide cases according to the wishes of the state, be it administrative, the legislature or the judiciary. They owe the duty to the people, to act fairly and reasonably,” he wrote.
“To make it very clear, my lady, the Zambian Judiciary is not above the law and certainly, you are not above the law. The management of the Judiciary cannot be seen to be interfering in matters that are before the court. If Mr Mwelwa has committed a crime or has anything that deserves action, you would be justified in following appropriate legislation to discipline magistrates. When a magistrate gets a ruling wrong, correction can be done through appeal to a higher court and not suspension. The Constitutional Court seems to have vindicated the magistrate after ruling on the question.”
Munshya also condemned the Judiciary’s decision to bar Lusaka lawyer Gilbert Phiri from appearing before any court due to some Facebook postings about Hakainde Hichilema’s treason case saying it was not its obligation to discipline lawyers.
“There is another matter of notorious concern. A few months ago, the judiciary in a statement from the honourable Charles Kafunda, claimed to suspend a lawyer from appearing before the courts of law until he had been disciplined. Lawyers in Zambia are not officers of the judiciary and they are not amendable to the judiciary. Lawyers are a self-governing and self-disciplining profession and all discipline must be channelled through the Law Association of Zambia (LAZ) Act, the Legal Practitioners Act and appropriate regulations. Our common law does allow for a sitting judge to discipline lawyers appearing before all courts in this manner,” he stated.
“The rule of law is at stake here and a corrective action needs to be taken to redeem our judiciary in which all Zambians hold a stake. It would betray a fundamental character of our profession if lawyers will cease to be self-disciplining and become an extension of the state through the judiciary. The Judiciary has enough officers, clerks, magistrates, judges and other workers to worry about and should not spread its tentacles to direct disciplining of lawyers. Honourable Kafunda’s letter purporting to suspend lawyer Gilbert Phiri from appearing before judges is illegal. Tolerating this letter will interfere with the profession’s independence from the state.”
And Munshya threatened to invoke the Constitution’s public standing privilege and sue the Justice Mambilima if she did not respond to his letter within 60 days.
“In view of the above, I petition your office to, within 60 days forthwith rescind the suspension of the Magistrate Mwelwa as it is illegal and most probably unconstitutional; restore Mr Phiri’s appearance privileges and have him disciplined through the channels established by the law and cleanse illegal and illogical acts that would betray the constitutional and legal order of our republic. If I do not hear from you within 60 days, I will invoke our constitution’s public standing privilege, retain counsel and sue you and the judiciary. Considering the constitutional impact of these matters, both the Attorney General of Zambia and the Minister of Justice will be enjoined to the suit. It is my hope however, that you will govern rightly as you have always done and help restore confidence in the people’s judiciary. I look forward to hearing from you,” wrote Munshya.