LUSAKA resident Joseph Busenga has lodged a complaint with the Judicial Complaints Commission (JCC) over the alleged misconduct and incompetence of three Constitutional Court Judges who were part of the panel constituted to preside over the 2016 presidential petition.
Busenga, who has cited justices Annie Sitali, Mungeni Mulenga and Palan Mulonda as respondents in his complaint, wants the commission to undertake proceedings for the removal of the trio as judges of the Constitutional Court.
In a letter dated February 7, 2022, Busenga stated that his complaint was anchored on events and proceedings of September 2, 2016 and after, regarding the Presidential Petition between President Hakainde Hichilema and former president Edgar Lungu and two others.
“The respondents are all Judges of the Constitutional Court of Zambia having been duly appointed and sworn in as such on divers dates and are each bound by the Judicial Oath to do justice in accordance with the Constitution of Zambia and in accordance with the laws of the Republic of Zambia without fear, favour, affection or ill will. The respondents were part of the panel of the full bench of the Court comprising themselves, the Judge president of the Court, Hon Lady Justice Hilda Chibomba, and her Ladyship Justice Margret Munalula Judge of the Court, constituted to preside over the Presidential Petition between Hakainde Hichilema and another and Edgar Chagwa Lungu and two others, Cause Number 2016/CCZ/0031 filed on 19th August 2016. The complaint is anchored on the events and proceedings of 2nd September 2016 and after,” Busenga stated.
“On 2nd September 2016, the Petition was called on for hearing before a full bench of the Court. On the material day, the Court deliberated on several interlocutory motions and applications until approximately 19:26 hours when the Court delivered its ruling on all applications that had been properly made and duly heard before it. The Court then directed that trial proceeds and it is from that point that the Court invited and heard submissions from the parties with a view to giving procedural directions as to how trial was to progress.”
Busenga argued that subsequent to the adjournment of the Petition on September 2, 2016 but prior to the resumption of sitting on September 5, the three judges, sat to interpret Article 101(5) of the Constitution, thus constituting themselves as a defacto three member panel of the Court.
“The record shows that at some point subsequent to the adjournment of the Petition on Friday 2nd September 2016 but prior to the resumption of sitting on Monday 5th September 2016, the respondents, sat to interpret Article 101(5) of the Constitution thus constituting themselves as a defacto three member panel of the Court within the same cause, but without there being any application, motion or pleading moving the Court to so interpret. The complainant’s foregoing assertion is evidenced by a number of facts including, inter alia, the following: The fact that at 09.41 hours during the resumed sitting which started at 09.31 hours on Monday 5th September 2016, the Judge President shockingly informed the parties that the Court had taken a position as to how the matter would proceed and duly invited the first respondent (judge Sitali) to read what the Judge President referred to as the ‘majority judgment of the Court in which the respondents purported to interpret Article 101(5) of the Constitution based on the submissions made by the then learned Attorney General during the procedural hearing which took place on the night of Friday 2nd September 2016,” he stated.
“It is noteworthy that by necessary implication the respondents must have convened themselves as a panel to consider and arrive at the Majority Ruling at some point between the night of Friday 2nd September 2016 when the full bench of the Court adjourned and 09.31 hours on Monday 5th September 2001 when the sitting of the full bench aforementioned resumed. The foregoing assertion is fortified by the following words used by the Judge President in her dissenting judgment which clearly demonstrate that she had no role to play in the sittings that culminated in the respondents making the Majority Ruling as she only came to learn of the same after the fact: ‘I must also say from the outset that I have had very little time to read through the majority judgment which I was given this morning after 08.00 hours together with the Judgment of Justice Munalula. This left me with very little time to put down my thoughts in an elaborate manner’.”
Busenga added that, “the fact that none of the parties moved the Court to seek an interpretation of Article 101(5) as is clear from the wording used in the Majority Ruling itself and from reading the dissenting Judgment of Justice Munalula at pages J3 to J4 in which she found as a fact that none of the parties sought such interpretation.”
He stated that following the adjournment of September 2, 2016, the parties were never notified that the Court had retired to render any ruling of any nature.
“The fact that upon and/or following the adjournment of 2nd September 2016, the parties were never notified that the Court had retired to render any ruling of any nature whatsoever; or that the Court would be considering any application or motion or indeed that there was any decision of the Court pending determination so as to warrant the delivery of any ruling by the Court; nor indeed did the Court issue any notice of hearing or any other document to the parties indicating that it would convene in the intervening period between the night of Friday 2nd September 2016 and the scheduled resumption of sitting on Monday 5th September 2016, thus rendering the proceedings by which the respondents constituted themselves into a panel for the purposes of making the Majority Ruling to be secret proceedings undertaken in breach of established practice, aside from being a clear violation of the mandatory provisions of Article 119(3) of the Constitution,” Busenga stated.
“The complainant avers in addition to the foregoing that the respondents’ action of, defacto, constituting themselves as a three member panel to interpret Article 101(5) of the Constitution within the subject cause, without there being any motion, application or pleading before the Court or any direction from the Judge President that the Court be reconstituted or indeed any reversal of the Ruling of the full bench which set the date and time for resumption of sitting to 08.00 hours on Monday 5th September 2016, was a clear and deliberate violation of Article 129 of the Constitution, Section 4(2) of the act and the Ruling on the part of the respondents, which amounted to gross misconduct and contravened the Judicial Oath taken by them.”
Busenga stated that the respondents were not clothed with any jurisdiction to act in the manner that they did, further arguing that their actions were not only unconstitutional but also amounted to incompetence and gross misconduct
“The complainant avers that as the respondents were not clothed with any jurisdiction to act in the manner that they did, their actions were not only unconstitutional, but also amounted to incompetence and gross misconduct on their part as they assumed for themselves a jurisdiction they did not have in circumstances that were not only unlawful but also devoid of any backing of law, in addition to being shrouded in obscurity in terms of the procedure adopted in arriving at the Majority Ruling,” stated Busenga.
“In light of the foregoing, the complainant prays in summary and in terms of the provisions of the law cited above that proceedings for the removal of the respondents as Judges of the Constitutional Court be undertaken by the Commission on the grounds set out in this Complaint and on the ground that the respondents are incompetent, that they grossly misconducted themselves as set out above and that they have consequently violated their Judicial Oaths.”