By Mwaka Ndawa
LUSAKA resident Joseph Busenga has asked the Judicial Complaints Commission (JCC) to institute proceedings for the dismissal of Constitutional Court judges Annie Sitali, Mungeni Mulenga and Palan Mulonda for breaching their ethical code of conduct when they determined the presidential election petition of 2016 without the knowledge of the judge president.
Busenga has lodged a complaint against the three for incompetence, gross misconduct and violation of their oath of office over the manner in which they handled the 2016 presidential election petition in which President Hakainde Hichilema who was in opposition then and his former vice-president Geoffrey Bwalya Mwamba were challenging the election of Edgar Lungu.
He says the conduct of the respondents to constitute a panel of three members to interpret Article 101(5) of the Constitution without a motion or pleading before court and clearance from the judge president amounted to gross misconduct and a contravention of the judicial oath they took.
The three judges on September 5, 2016 decided to strike out the matter on a technicality on account that the stipulated 14 days in which to have the petition determined, had elapsed.
The court ruled that the petitioners’ advocates focused on raising preliminary issues, leaving out the crux of the matter.
Constitutional Court president Hildah Chibomba and Margaret Munalula dissented with the judgment of the majority.
Judge Chibomba said she did not have time to read through the judgment of the majority to include her thoughts on the matter as she was ambushed by the three who gave her the same judgment an hour before the court session.
“I have had very little time to read through the majority judgment which I was given this morning after 08:00 together with the judgment of justice Munalula. This left me with very little time to put down my thoughts in an elaborate manner,” said judge Chibomba.
However, Busenga argues that according to the provisions of section 4(2) of the constitutional court Act No. 8 of 2016, the composition of judges to sit and determine any aspect of the petition could not be reduced from the requisite number of five or seven, or indeed altered in any way without the express authorisation of the judge president.
He said judges Sitali, Mulenga and Mulonda, in conspicuous disregard of the ruling and provisions of section 42(2) of the constitutional court Act, sat to interpret Article 101(5) of the Constitution, constituting themselves as a defacto (actual) three-member panel of the court within the same cause without any application, motion or pleading moving the court to interpret the said Article.
“The respondents must have convened themselves as a panel to consider and arrive at the majority ruling between the night of Friday September 2, 2016 when the full bench of the Court adjourned and 09:31 hours on Monday September 5, 2016 when the sitting of the full bench resumed,” Busenga submitted.
“The forgoing assertion is fortified by by the words used by the judge president in her dissenting judgment which clearly demonstrate that she had no role to play in the sittings that culminated in the respondents making the majority ruling as she only came to learn of the same.
Busenga said the fact that none of the parties moved the court to seek an interpretation of Article 101(5) it was clear from the majority ruling and dissenting judgment of judge Munalula in which she found that none of the parties made an interpretation.
He said the parties were never notified that the court had retired to render a ruling or considering any application or motion to warrant the said ruling, neither were the parties informed that the court would convene between the night of September 2, 2016 and September 5, 2016 as a panel of three for purposes of making the majority ruling which was secret and a violation of Article 119(3) of the Constitution.
“By purporting to confer jurisdiction upon themselves to interpret Article 201(5) of the Constitution without addressing their minds to the question as to whether the mode of commencement of the ‘interpretation proceedings’ which according to the respondents in the majority ruling was by way of submissions by the Attorney General, judge Sitali, Mulenga and Mulonda not only violated the Constitution but also demonstrated a serious lack of competence in the execution of their judicial function,” Busenga said.
“The respondents were not clothed with any jurisdiction to act in the manner they did, their actions were not only unconstitutional, but amounted to gross misconduct on their part as they assumed powers, they did not have in circumstances that were not only unlawful but devoid of any backing of law.”
He said he was aware that there were previous complaints against the court relating to the manner it conducted the proceedings and they were disposed of by the JCC.
“The complainant prays that the proceedings for the removal of the respondents as judges of the Constitutional Court be undertaken by the Commission on grounds that judge Sitali, Mulenga and Mulonda are incompetent, that they grossly misconducted themselves and they have consequently violated their judicial oaths,” said Busenga.