Chief Justice Ireen Mambilima says the Judiciary has the right to suspend erring magistrate to pave way for investigations.
Mambilima was responding to a letter from Patriots for Economic Progress president Sean Tembo dated September 11 in which he told her that magistrate Benjamin Mwelwa’s suspension was contrary to judicial independence.
“Kindly be advised that the suspension of Magistrate Benjamin Mwelwa was not done in a vacuum. It followed a complaint from a stakeholder alleging unethical conduct in the manner Honorable Mwelwa handled a matter before him which culminated into the application to enter the nolle prosequi in the issue. The procedure, when we receive such kinds of complaints, is that the Chief Registrar, who is the overall supervisor of all Magistrates in the country considers the complaint after which the Magistrate may be charged and asked to exculpate himself or herself. Thereafter, the matter could be referred to the Judicial Service Commission for further consideration. As already stated, in this case there was a complaint which led to the above disciplinary process being set in motion. The matter is yet to be concluded through the Judicial Service Commission. All magistrates who are accused of impropriety are subjected to the above procedure. Those that successfully defend themselves against the allegations are cleared by the Judicial Service Commission and restored to their positions,” read a letter written on Mambilima’s behalf by her special assistant legal Evaristo Pengele dated September 20, 2017.
“Those that fail to defend themselves against the allegations are found guilty of the allegations [and] are disciplined accordingly. This is an internal disciplinary process which ensures that a magistrate accused of impropriety is subjected to due process and treated fairly according to the internal disciplinary rules.”
Pengele also claimed that Mwelwa was the one instigating comments from CSOs and political parties.
“Honorable Mwelwa is simply being subjected to the above disciplinary process. This is the first time in the history of the Judiciary that Civil Society Organisations and political parties, like yourselves, have been enlisted to circumvent the internal disciplinary process. We can only assume that this is being done at the instigation of Honorable Mwelwa. We find this in itself to be unacceptable and an intrusion into our internal disciplinary process of the Judiciary,” wrote Pengele.
“Please note that, as an institution, we regard issues of integrity and professional conduct in the dispensation of justice very highly. For this reason, be advised that we cannot ignore a complaint against the Magistrate which attributes unprofessional and unethical conduct on his part. It is our duty to follow up such complaints so as to ensure that members of this institution operate with integrity and professionalism. Honorable Mwelwa will have an opportunity to defend himself against the allegations leveled against him when he appears before the Judicial Service Commission.”
But in a statement today, Tembo challenged Mambilima to state which law empowered her to suspend a judicial officer.
“Firstly, the Chief Justice claims that a Chief Registrar has powers to suspend a judicial officer prior to the determination of a disciplinary matter by the Judicial Service Commission. Our position is that a Chief Registrar does not have any such power as the powers of a Chief Registrar are clearly outlined in section 8 of the Judicial Administration Act of 2016. We therefore challenge the Honourable Chief Justice to indicate the law on which she is basing her assertion that a Chief Registrar has powers to suspend a judicial officer such as a magistrate. The second issue that we have with regard to the response from the Honourable Chief Justice is the tone adopted in the second last paragraph of the letter attached hereto. The Patriots for Economic Progress holds the office of the Chief Justice in very high esteem, as we believe that anyone occupying that position is the custodian of integrity in our society,” Tembo stated.
He also said it was regrettable that Mambilima was accusing magistrate Mwelwa of instigating comments on his suspension.
“It is for this reason that we find it very regrettable that the Chief Justice accused the suspended magistrate of soliciting us to speak on his behalf on this matter. We also resent the baseless insinuation that our political party, the Patriots for Economic Progress is a hired gun used to fight people’s personal battles. Our interest in this matter is to ensure that the rule of law prevails, and that those with high positions of authority do not trample on the rights of those who are lower in the food chain,” wrote Tembo.
“We further wish to take this opportunity to appeal to the Honourable Chief Justice to avoid making wild and baseless allegations against other persons and/or organizations. Her tone should be distinguishable from that of a political party cadre. We have since requested the Honourable Chief Justice to retract the second last paragraph of her letter to the Patriots for Economic Progress.”
Acting Chief Registrar Charles Kafunda suspended magistrate Mwelwa on August 9, 2017 for refusing to give effect to a nolle prosequi in a case of The People v Milford Maambo, Ziwa Malilo and Chanda Chabala.