THE suspension of two Lusaka High Court Judges, Charles Kajimanga and Nigel Mutuna has been lifted with immediate effect.
And Kabwe High Court Judge Mwiinde Siavwapa has also recommended the immediate dissolution of the judge Lovemore Chikopa Tribunal appointed by late President Michael Sata because it has no legal capacity to execute the mandate for which it was constituted.
Delivering a judgment in a matter in which the judges had challenged their suspension and legality of the Chikopa Tribunal, Judge Siavwapa has ordered that Judges Mutuna and Kajimanga were at liberty to resume their duties with immediate effect.
He ruled that while he could not question the appointment of the Tribunal by President Sata, it would be unfair and unjust for Judges Mutuna and Kajimanga to remain suspended when the tribunal appointed to investigate them had no capacity to inquire into the matter.
He ruled that the decision by the Chikopa tribunal to formulate its own rules of procedure was illegal stating that the said rules were hence of no effect and that whatever decisions it made had been declared null and void ab initio.
Judge Siavwapa in his ruling stated that the Chikopa Tribunal was incapacitated because President Sata as the appointing authority failed to provide the necessary legal capacity by way of rules of procedure which by implication had produced a tribunal which he called stillborn which would never have the capacity to discharge its mandate.
In April 2012, President Sata suspended former Supreme Court judge Philip Musonda along with High Court judges Mutuna and Kajimanga and constituted the Chikopa Tribunal to investigate them of alleged gross misconduct.
Before the tribunal could commence its sitting, High Court Judge Flugence Chisanga halted the tribunal through an injunction after the two Judges challenged the constitutionality of the tribunal.
“Having come to the above stated conclusion, and for avoidance of any doubt, I hereby declare and order that the suspensions of the applicants cease to have effect forthwith by reason of the tribunal’s incapacity to carry out its mandate. The applicants are therefore at liberty to resume their duties. As for the fate of the tribunal, I leave it to the Republican President, the appointing authority to determine although it is my considered view that the most logical thing to do in the circumstances would be to dissolve it,” Judge Siavwapa ruled.
Judge Siavwapa stated that while it was acknowledged that under normal circumstances only the President had the power to revoke the suspension of the judges upon advice by the tribunal, the fate of Judges Mutuna and Kajimanga could not be allowed to hang over their heads indefinitely because that was going to be “less than inhuman treatment.”
“I have endeavoured to demonstrate that the tribunal lacks the legal capacity to function and whatever it did is null and void ab initio. Since I have already declared the rules formulated by the tribunal as null and void, it follows that whatever steps were taken by the tribunal pursuant to the rules is void,” Judge Siavwapa ruled.