Imported Malawian Judge Lovemore Chikopa is determined to proceed with his infamous tribunal against Supreme Court judge Philip Musonda, who has resigned.
Judge Chikopa has single-handedly rejected all objections by defence lawyers against proceeding because Judge Musonda had resigned and could not therefore be subjected to the tribunal.
To the amazement of defence lawyers, Judge Chikopa insisted that Supreme Court Judge Musonda did not resign but had simply indicated a wish to retire with full benefits, which indication did not constitute a retirement.
Judge Chikopa’s utterances left the Attorney General (AG) Mumba Malila in a total quandary as he was aware that Judge Musonda had resigned and in this regard had issued a public statement indicating that the resignation had pre-empted the tribunal.
According to tribunal sources, Judge Chikopa dismissed all the objections raised by the defence and has now set a date of June 28 as commencement of hearing.
This is inspite of a letter by Judge Musonda dated 18th June confirming his previous letter of 4th June in which he had resigned as Judge.
According to Article 137 of the Constitution, a constitutional office holder can resign his position at any time by simply submitting resignation to the appointing authority.
This is exactly what Judge Musonda did and it is difficult to understand why Judge Chikopa does not see the point.
The purpose of the tribunal was to consider Judge Musonda’s continued tenure on the bench.
In his letter to the Acting Chief Justice Chibesakunda dated 18th June 2013, Judge Musonda said: “I wish to restate that I resigned on 4th June, 2013 pursuant to article 137 of the Constitution which confers upon me a constitutional right to resign from my office at any time whether before or during the course of an inquiry. I have resigned and ceased enjoying the perquisites of the office of Supreme Court Judge but I am still being perceived as a sitting Judge by the Tribunal.”
The Attorney General ingeniously threw in the towel at the commencement of the Chikopa Tribunal when he courteously said it was up to Judge Chikopa to decide as to whether the tribunal should go ahead and hear Judge Musonda’s case after the Judge had resigned, achieving the goal of the exercise.
A source inside the tribunal said Judge Chikopa ignored all the submissions the lawyers representing the three suspended judges had and made a ruling even without considering the submissions.The source stated that it was absurd that Judge Chikopa did not even consult other members of his tribunal when he made a ruling that the Tribunal was going to proceed.
Judge Chikopa was sitting with Judge Naboth Mwanza and T.K Njovu.
The source explained that the Chikopa Tribunal was still in a quandary considering that two High Court Judges, Charles Kajimanga and Nigel Mutuna had been granted leave to stay the Tribunal by Ndola High Court Judge Mwiinde Siavwapa.
“There is the Ndola case of Judges Kajimanga and Mutuna that goes to the root of the constitutionality of the tribunal. You cannot separate Judge Kajimanga from Judge Musonda when they have the same accusations of having conspired. This can lead to a ridiculous situation. What would happen if Judge Musonda was found guilty and Judge Kajimanga cleared on the case? So the hearing of Judge Musonda’s case will certainly prejudice the outcome of Judge Kajimanga. It is without doubt that the hearing of Judge Musonda will prejudice the outcome of the hearing of other judges,” the source said.
There is precedence in the courts that when Judge Kabazo Chanda and they then Director of Public Prosecutions (DPP) Mebelo Kalima resigned from their positions respectively, the tribunal set to investigate them collapsed and did not proceed.
But the Chikopa Tribunal went ahead with its sittings even after Judge Musonda had decided to stay away from its hearing.