ConCourt judges admonish Lungu over lies
THE CONSTITUTIONAL Court has admonished former president Edgar Lungu and his lawyers for making unsubstantiated accusations against judges.
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The court pointed out that Lungu and his lawyers’ conduct bordered on contempt, warning that baseless accusations against judges made by lawyers on behalf of their clients would not be tolerated.
Yesterday, Constitutional Court president Margaret Munalula questioned whether Lungu’s intent to eliminate her from the team that’s handling his eligibility case was to ensure that the majority judges that cleared constitutional hurdles for his attempt at third term in the 2021 election, can do so again without her provoking dissenting opinion.
Lungu’s application for the judges to withdraw from presiding over his case for perceived bias was met with resistance by justice Munalula, Arnold Shilimi and Mapani Kawimbe who emphasized that their duty was to dispense justice with fairness without favoring any individual.
The judges said bowing to Lungu’s demands in the case would create a bad exemplar where litigants will be choosing judges to preside over their cases.
During hearing of the application for recusal, Lungu’s lawyers Bonaventure Mutale Makebi Zulu and Jonas Zimba argued that; Lungu will not have a fair hearing as the three judges were affiliated to President Hakainde Hichilema, who is opposed to Lungu’s second attempt at third term for presidency.
Solicitor general Marshal Muchende argued that the allegations by Mutale that the proceedings are all about President Hakainde Hichilema were far from the truth.
“The prophecy or foretelling gift of Counsel Mutale that the President would be a candidate of the 2026 elections, we persuade the court from not being swayed by counsel who seems to have a crystal ball, the statement must be dismissed with the contempt it deserves,” he said.
Mambo Mwiya and Micheal Mutwena prayed that Lungu’s application be dismissed as Lungu did not provide evidence to prove his allegations.
They said courts frown upon the making of allegations that directly affect a person who is not a party to the proceedings.
Micheal Moono who is representing Michelo Chizombe who has petitioned Lungu argued that President Hichilema is not party to the proceedings not represented, therefore: he has no opportunity to react to the allegations of bias against him.
He said no allegation of bias has been made towards Chizombe who is seeking clarification from the court, on whether Lungu was eligible to contest the 2021 and future presidential elections after having held office twice.
“To suggest an allegation of bias towards an outsider to the proceedings with producing evidence of legal connection is shocking,” he said.
“We are here discussing bias of a third party who is an outsider to the proceedings. More time has been wasted on discussing Mr Hichilema, without addressing important issues. Are the proceedings all about him? There is no evidence that has been produced.”
Moono wondered how a legal opinion by Justice Munalula that the remaining term for late President Micheal Sata, which judges Hildah Chibomba, Ann Sitali, Mungeni Mulenga, Palan Mulonda, Martin Musaluke and the late Enock Mulembe pronounced that it was an inherited term, was actually a full term: would amount to bias.
He said justice Munalula’s opinion that Lungu had already been sworn into the office of President twice and served two terms, cannot for a basis for recusal.
He said the allegations against the judges without evidence were contemptuous and recusing themselves would make it impossible to dispense justice, as litigants will be picking judges they want litigate over their matters.
In their ruling the judges schooled the self-declared top notch lawyer that, an impartial and independent judiciary is at the heart of a just and fair legal system.
The three said the oath of office taken by judges coupled with their training and experience, equips them to make determinations based only on merit in all disputes before them.
Each judge gave Lungu a piece of mind regarding his attempt to put a black mark against their professional reputations.
Judge Munalula questioned the motive by Lungu and his lawyers to have his complaint against the judges at the JCC published in the media before serving it on her, and subsequently did so as she made way to Court.
“Is the application intended to intimidate me into stepping away from the case? if so, is this the conduct expected of either Lungu or his legal counsel since they are all officers of the Court? Is the application for recusal in good faith?,” she questioned.
Judge Munalula noted that it was not the first time that Makebi Zulu Advocates were making such a move on behalf of their clients.
“It is not the first time a complaint of bias has been lodged against me by a party represented by the very same lawyers representing Lungu. It is not the first time that the said lawyers have served me with a copy of the complaint just as I was about to hear their matter,” she said.
She said owing to the perpetual behavior by the lawyers and their surrogates to always report her to the JCC and apply for her recusal, her conclusion was that: it is their style of removing judges who pose as an obstacle in matters that they (Makebi Zulu Advocates) want to go a particular way.
Judge Munalula said the behavior by the lawyers was scandalizing the Court and was an embarrassment to the legal profession and must be condemned.
She requested the Attorney General to review the conduct by the lawyers and if found wanting report them to the Law Association of Zambia for discipline among other actions.
“I would thus urge the Attorney General as leader of the Zambian Bar and protector of the public interest, to look into the issue and if confirmed to take steps to address it as a matter of urgency,” she said.
Justice Munalula said Lungu was never with an opportunity to prove his claims but failed to do so.
She wondered why he went ballistic to announce his complaint with everyone including the address to his Facebook followers on Tuesday evening peddling unsubstantiated claims without evidence.
“I have no control over Chizombe’s citing of my decision and do not see how a litigant’s reliance on a particular judge’s decision translates into bias on the part of that Judge. if that were so judges would be forced to decry their previous decisions at every turn and the foundations of the common law system would collapse,” she said.
Judge Munalula said by the same token, the allegation ought to equally applied to her colleagues who declared him eligible to contest the election for third term.
“If I am perceived to be interested in my dissenting opinion, aren’t these other judges equally interested in their majority decision? Why is the interest only perceived in relation to the dissent? Is it because it did not support Lungu’s eligibility,” she questioned.
“Does that then not suggest that the desire to remove me from the panel is motivated by the Lungu’s desire to ensure that the majority that ruled in his favour can do so again without my irritating dissent?.”
She said the argument that she has been spared from disciplinary proceedings taken against her colleagues is baseless as their charges are not in anyway connected to her.
“I enjoin him and all those who are interested in this matter to read all the decisions relating to both Mr Lungu and Mr Hichilema which I have made either as a single judge or as part of a panel and it will be evident to them that there is no shred of truth in the accusation,”she said.
“I take seriously my oath of office and, the provisions of Article 122, wherein I am duty bound to adjudicate in accordance with the Constitution and the law and not under the direction or control of any person.”
Judge Munalula added that the behavior by Lungu points out to why those who seek to manipulate and control the Court would not want her to hear their matters.
“This application for what it is, a brazen attempt to reconstitute the Court in an illegal and illegitimate manner. The application is in bad faith and I am not swayed by it. There was and is no need for me to declare an interest when such interest does not and has never existed. I hereby decline to recuse myself,” said justice Munalula.
Judge Arnold Shilimi conceded having been appointed as non-executive director in African Life Financial Services Limited (Aflife) in 2017 and served in that capacity until his appointment to the Judiciary in 2023 when he resigned.
He clarified that his appointment as a director in Aflife was purely for professional reasons both as a practicing lawyer and his vast experience in corporate and financial law in Zambia and Internationally where he worked for a Development Finance Institution (DFI) for 16 years.
“The Republican President was as far as I know not a shareholder of Aflife and neither was he a director, but a shareholder at that time in a third-party company called Menel Management Services Limited (Menel), which in turn held equity in Aflife together with other shareholders,” he said.
Justice Shilimi said President Hichilema was not involved in his appointment and neither did he have any dealings with him whatsoever during his time as a director in Aflife.
“Lungu’s accusation of bias against me is not backed by any evidence. It is based purely on the fact that I served on a board of a company in which the Republican President, had an indirect interest. It is such a remote connection which in my view would never be considered by any reasonable person to amount to a conflict of interest or bias,” he said.
Judge Shilimi charged that he does not have a financial or proprietary interest in the outcome of Lungu’s case.
“My role and interest in this matter is in accordance with my constitutional mandate. The allegations of bias levelled against me and the evidence produced of PACRA print outs of different companies most of which are unrelated to this matter fall short of the required standard.
I accordingly decline to recuse myself in this matter,”said judge Shilimi.
Judge Mapani Kawimbe said the allegations against her were bogus and scandalous because, for a relationship to exist, it must be born from actual proof and not suspicion or perception as argued by Lungu.
“No relationship exists between me and the Republican President, and therefore no reasonable person would be swayed by Lungu’s fictitious assertions offered in his affidavit in support of notice of motion and reiterated in his replying affidavit that I either have a traceable relationship through consanguinity or affinity with the President,” she said.
She said the innuendo as being forcefully propelled in the public domain to maliciously injure her reputation and career, which she has built over the past 20 years nationally and internationally, through merit-based recognition and not connections.
Judge Kawimbe said the allegations were aimed at inciting the public to pour scorn against her that she has no integrity to handle Constitutional cases.
She said Lungu is the one who appointed her as judge hence she did not understand why he accused her of serving the alleged interests of the president not to see him on the ballot, when President Hichilema is not even a party to the proceedings.
“I am also at loss where Lungu grounds his fear that I have ulterior motives to maintain President Hakainde Hichilema in office when the latter already found me serving as a Judge. In fact, Lungu is the person who ushered me into the Judiciary by swearing me into office as Puisne Judge on 14th June, 2016,” she said.
“What motive would I have therefore, to ensure that the current Republican President who is not even a party to this case stays in office? I ask.
Unlike other ordinary persons in this country, I do not enjoy the privilege of speaking outside my rulings and judgments, and these malicious falsehoods against me are so aggressive.”
She said disinformation, is an insidious enemy and spreads like a virus in infecting minds and manipulating perceptions, therefore, those who wish to speak against others should do so when there is real cause and substance in allegations.
“The interest of justice is to preserve the integrity, impartiality and independence of the Judiciary and judges from any litigant or any other person that would want to exert intimidatory tactics or pressure on them,”said judge Kawimbe.
“There is no merit in the allegation that was laid against me and I decline to be disqualified from these proceedings.”
The judges admonished Lungu and his lawyers Makebi Zulu, Jonas Zimba that their conduct bordered on contempt of Court and warned that they will not tolerate baseless accusations by lawyers against judges, through their clients.
“It is not enough to merely allege that there is a danger of bias without producing cogent evidence, neither is ti enough for the person alleging to merely have suspicions or apprehensions,”judge Shilimi said.
The court dismissed Lungu’s application for recusal and condemned him to costs.
The application by Mutale to appeal against the decision to the full bench was equally denied but Zulu in addressing the media insisted that he will raise the same issue before the full bench.
Substantive hearing of the eligibility case has been slated for Monday October 7.
By Mwaka Ndawa
Kalemba October 4, 2024.
ConCourt judges admonish Lungu over lies
