BALLY’S SUSPENSION OF 3 CONCOURT JUDGES CORRECT!- Prof. Edgar Ng’oma

BALLY’S SUSPENSION OF 3 CONCOURT JUDGES CORRECT! AS IT SPARKS DEBATE

Prof. Edgar Ng’oma, Philosopher/Distinguished Governance Fellow

Without fear or favour.

There is a potential misunderstanding regarding Bally’s suspension of the 3 Constitutional Court Judges due to timing, although Bally is absolutely correct, not just right. Here’s what I mean:

1. Firstly, it must be understood that none of the 5 Constitutional Court judges met the minimum qualifications advertised from the outset. In short, all five judges did not meet the minimum qualifications for a Constitutional Court judge.

1. SC John Sangwa objected to the recruitment of these judges because none of them met the bare minimum qualifications. However, the PF regime proceeded with the recruitment.

1. As expected from underqualified judges, during the 2016 election petition by the UPND challenging the outcome, the 5-judge bench allegedly raped the constitution by extending the 14-day period to entertain and conclude the petition, contrary to Zambia’s constitution. This extension was stopped by two Zambian citizens, Jackson Emmanuel Mtonga and Chimdidi Mbewe, who jointly reported the judges to Woodlands Police for possible arrest and to the Judicial Complaints Authority.

1. That evening, international news channels covering the elections, including local television news, reported the possible arrest of the 5 judges for violating the constitution.

1. On the following Monday, the Constitutional Court announced it couldn’t continue due to the report and external pressure, citing the end of their mandate, which marked the 14 days provided by Zambia’s constitution. They threw out the petition, which wasn’t concluded, and President Edgar Chagwa Lungu was sworn in for the second time in 2016.

1. The five judges were tried by the Judicial Complaints Authority commission, chaired by Geoffrey W. Simukoko, with Judge Christopher S. Mushabati and Member NM Banda.

1. The petition by the two petitioners read: *__REMOVAL OF CONCOURT JUDGES FOR INCOMPETENCE AND VIOLATION OF THE CONSTITUTION & FOR THE VIOLATION OF THE JUDICIAL OATHS & SECTION 5 OF THE OFFICIAL OATHS ACT._*

1. The grounds of the petition were as follows:

– *Failing to Interpret the Constitution*: Failing to interpret Article 101(5) of the Constitution.
– *Disregarding Judicial Procedures*: Failing to terminate proceedings at midnight on September 2, 2016, and ignoring their own rulings.
– *Judicial Impartiality*: Failing to defend Judge Sitali when she was verbally insulted and attacked in open court.
– *Conflict of Interest*: Judge Chibomba failed to declare her son’s and husband’s connections to UPND.
– *Usurping Constitutional Power*: Jointly conniving to usurp the power vested in the constitution.
– *Exceeding Authority*: Pretending to have powers to extend time limits set by the constitution when, in fact, they didn’t.

“The petitioners, Emmanuel Jackson Mtonga and Alfred Chims Mbewe, contended that the 5 Constitutional Court judges had no power to extend the time for hearing a presidential petition. In their letter to the Judicial Complaints Authority, they stated:

“The Constitutional Court kept the public in court until midnight, claiming proceedings would terminate, yet at midnight they claimed jurisdiction beyond the constitutionally allowed 14 days.”

The petitioners concluded: “We wish to state clearly that the Constitutional Court has no power to extend the time for hearing a presidential petition.”

However, during the Judicial Complaints Authority commission’s hearing at Twangale Park in Lusaka, a compromise was reached between the judges and the executive branch, allowing the judges to continue their work at the Constitutional Court despite calls for dismissal.

As a result of this compromise, certain individuals close to the executive branch petitioned the Constitutional Court to determine whether the 6th President was eligible to run in the 2021 General Election. It was clear that he didn’t qualify, having already been sworn in twice and subjected to two presidential elections.

Notably, this writer opposed the President’s third-term bid, advising the Patriotic Front (PF) that he wasn’t eligible for re-election. However, the PF responded that I wasn’t qualified to offer such advice, citing the candidate’s familial relationship to me.

Those who recall the conversation on Prime TV’s “Oxygen of Democracy” will remember that three prominent Lusaka lawyers – the esteemed State Counsel John Sangwa, ZMP President KBF, and Minister of Foreign Affairs Mulambo Haimbe – clearly explained that the 6th President was disqualified by the constitution.

Their argument was simple: the President had already been sworn in twice and subjected to two presidential elections, making him ineligible to stand again. This stance was rooted in the Zambian Constitution, which allows an individual to be elected to the Presidential Office only twice. John Sangwa, in particular, had been vocal about this issue, asserting that President Edgar Lungu was not eligible to run for presidency in 2021 due to his previous two terms.

It’s worth noting that John Sangwa’s views on this matter led to controversy, including his disbarment by the Zambian judiciary in March 2020.

This situation highlights concerns about judicial impartiality and the need for clarity in constitutional interpretation.

Note that President Hakainde Hichilema recently suspended three Constitutional Court judges – Anne Sitali, Mungeni Mulenga, and Palan Mulonda – on grounds of gross misconduct and incompetence.

In conclusion, President Bally’s suspension of the three Constitutional Court judges is a necessary step towards addressing judicial misconduct and promoting accountability in Zambia’s governance structures. Without prejudice or assumption I submit my informed research on this matter.

Professor Edgar Ng’oma Philosopher and Distinguished Governance Fellow.