By Mwaka Ndawa
THE Constitutional Court has thrown out an application by former High Court judge Joshua Banda to halt President Hakainde Hichilema’s decision to dismiss him.
Judge Ann Sitali has ruled that Banda has already been relieved of his duties as an adjudicator and there is nothing to stay.
This is in a matter where Banda has petitioned the State in the Constitutional Court over his dismissal.
Recently, President Hichilema dismissed Banda for professional misconduct following a recommendation from the Judicial Complaints Commission (JCC).
But Banda sought an order of the court to stay President Hichilema’s decision to dismiss him, arguing that it contravenes Articles 143 and 144 of the Constitution.
He wants a declaration that the justification of the JCC to hear complaints against judges does not extend to matters that happened prior to a judge’s appointment to the office of judge as it is the preserve of the President, Judicial Service Commission and the National Assembly.
The State opposed the Banda’s application to put the President’s decision to drop him on hold.
Principal State advocate Kaumbi Ndulo-Mundia submitted that Banda had not provided any good reasons for special circumstances why the stay should be granted as there was nothing to stay.
She said the reasons advanced by Banda that he would be ruined and the office of judge would be reduced in dignity were not good reasons on which a stay must be granted.
Mundia said although the facts of the case raised alleged constitutional violations, the action had been commenced using the wrong mode of commencement and before a wrong court.
In his response, Banda argued that he was still a judge of the High Court until the petition was finally determined and the letters patent constituting him as judge were properly surrendered and destroyed.
He said the decision of the President had not yet been effected and should be stayed as there was no evidence that the public would be prejudiced if he continued performing his duties as a judge whilst awaiting the final determination of the petition.
Ruling on the matter, judge Sitali said the case was not appropriate in which she should exercise her discretion to stay the President’s decision on reasons that the decision which the latter sought to stay had already been implemented and there was nothing to stay.
The issues raised in the petition relating to whether or not the JCC and the President contravened Articles 143 and 144 of the Constitution in the manner they removed him from office could not be resolved at preliminary stage.
“For this court to grant an order to stay the decision to remove the petitioner from office of judge of the High Court at this stage would have the effect of taking a position against the decision by the President without having heard the substantive case,” said judge Sitali. “The petition ought to be heard and determined before any remedies can be awarded, should the petition be determined in the petitioner’s favour. That being the case, I decline to exercise my discretion to grant the petitioner’s application for an order to stay the Republican President’s decision to remove the petitioner from office as judge of the High Court. The application is accordingly dismissed.”
