Lusaka High Court Judge Dominic Sichinga has allowed former Minister of Transport and Communications William Harrington Judicial Review to challenge the decision by Acting Chief Justice Lombe Chibesakunda who refused to constitute a tribunal to investigate charges of corruption and abuse of office by Arts and Tourism Minister Sylvia Masebo.
Judge Sichinga has ruled that there was a contention that the Acting Chief Justice Lombe Chibesakunda misapprehended the law when she refused to appoint a tribunal as the law did not give the chief justice any discretion.
According to the submission, upon receipt of a complaint the chief justice’s role was to simultaneously inform the President and the Speaker of the National Assembly and then proceed to constitute a tribunal.
He said that, “I have carefully considered the argument advanced and the affidavit in support of Ex-parte summons for leave for Judicial Review together with the evidence contained therein. I have further considered the legal arguments as contained in the Notice of Application for leave to apply for Judicial Review and was satisfied that Mr. Harrington had an arguable case according to the record which merited further investigations by the court at an inter-partes hearing.
“Given the arguments advanced in the notice and evidence adduced in the affidavit, I am satisfied that the applicant has moved this court to consider that there is an arguable case on the face of the record which merits further investigations by the Court, at an inter-partes hearing,” said Judge Sichinga.
According to the submission made by his lawyer Gregory Phiri from PNP Advocates, the decision they were challenging was made by a public authority which was exercising a public function.
Mr. Harrington contended that the decision by Judge Chibesakunda was amenable to Judicial Review.
It was also submitted that
Mr. Harrington who is an applicant had locus standi by virtue of S.13 (1) of cap 16 as any person can bring an allegation in writing to the Chief Justice. Further it was lawyers’ submission that at leave stage, the court need not inquire into the merits of the main matter since Judicial Review was concerned with the decision making process and not the merits of the decision.
It was also submitted that the purpose of judicial review was to ensure that the public bodies and officials performed their functions or duties in good faith, without malice and in accordance with the law.
It was further submitted that the provisions of Section 13(3) of Cap 16 do not give any discretionary power to the Chief Justice.
“Upon receipt of a complaint, the Chief Justice has no choice in the matter but to simultaneously inform the President and the Speaker of the National Assembly, and to go ahead to constitute a Tribunal. Counsel referred to exhibits in the affidavit in Support sworn by the applicant showing the evidence in this matter. It was ultimately submitted that the task of gauging whether the matter is frivolous or vexation is for the Tribunal and not the Chief Justice.”
Judge Sichinga said that he had carefully perused the record at this stage and that he was satisfied that the notice filed in this application was in conformity with the law.
He further set 6th August, 2013 as date for inter-parte hearing.