The Supreme Court yesterday passed a moral judgement challenging President Michael Sata not to proceed with the tribunal against the three judges, in the interest of national unity and considering the constitutional issues raised by the tribunal.
In their unanimous judgement the Supreme Court felt that although the State had won the case the circumstances prevailing in the country were such that the tribunal should not proceedIt remains to be seen if both President Sata and Judge Chikopa will heed the advice of the Supreme Court.
In the split judgement four against three for the tribunal the acting chief justice Lombe Chibesakunda and acting Deputy Chief Justice Florence Mumba who are both retired judges and were expected to support the President, the Supreme Court ignored the spirited arguments against the tribunal by three judges who felt that the decision by the president to suspend the judges and institute the tribunal was improper mainly because the judges had not been given an opportunity to be heard before being suspended and also because the President failed to use the judicial complaints authority choosing instead to hear and succumb to complaints by the three Zambian Airways directors Mutembo Nchito, Nchima Nchito and Fred M’membe who obtained K14 billion from the development bank of Zambia by fraudulent misrepresentation.
In her foreword to the judgement judge Chibesakunda emphasised the need for national unity as “we are one People” and therefore the judgement should be accepted as it had taken long and taxed the nation.
The three dissenting judges felt that the President had overstepped his authority by suspending the judges without using the judicial complaints authority a board which appointed under the laws of Zambia to superintend the work of the judiciary.
Justice Marvin Mwanamwambwa said in his ruling that the appeal should be dismissed because there was impropriety in the manner the tribunal was constituted. He said even if the President had unfettered power he could be questioned in certain instances.
In agreement with what justice Mwanamwabwa said justice Annie Chibomba ruled that the High Court judge Fulgency Chisanga was on firm ground to grant leave to the three judges because their official duties were being questioned by complainants who had a case before the Supreme Court.
She said the independence of the judiciary needs to be respected and the executive may have crossed the boundaries and interfered in the process of the judiciary and that the appeal by the state should be dismissed.
Another judge Elizabeth Muyomvwe argued that the judiciary had a Judicial Complaints Authority (JCA) that was supposed to deal with matters involving the judges and wondered why the JCA was not used.
She also said that the appeal be dismissed as the President only concentrated on article 98 and not the articles that supported the JCA.
President Michael Sata last year suspended judge Supreme Court judge Philip Musonda and high court judges Nigel Mutuna and Charles Kajimanga on allegations of corruption.
The other judges on the bench were Gregory Phiri, Muyunda Wankie and Florence Mumba.