By Peter Sinkamba
The Constitutional Court has scheduled 25th October, 2024, to rule on whether to stop the suspension of three of its judges, who were suspended by President Hakainde Hichilema.
The three suspended judges had previously ruled in the 2016 presidential petition which ended Mr. Hichilema’s election challenge of former President Edgar Lungu.
The Green Party President, Peter Sinkamba, appeared before Judge Mulife, who was recently promoted to the Constitutional Court by President Hichilema, for the hearing of an application to stay the decision by the President to suspend the 3 judges on recommendation by the Judicial Complaints Commission (JCC).
Mr. Sinkamba claims the JCC overstepped its authority by reopening a case that was already settled, which led to the current suspension of the judges.
In his written submissions filed Wednesday, Sinkamba argued that the Constitutional Court has exclusive authority to handle cases involving constitutional issues and violations.
He emphasized that the court has the power to issue temporary orders as a court of first instance in constitutional matters, such as staying the decision to suspend judges in order to maintain fairness until the case is fully resolved.
Sinkamba criticized the Commission’s legal argument, pointing out that the rule they cited from the White Book only applies to appeal cases, and not cases where the Constitutional Court is acting as the court of first instance.
He further argued that if the Court cannot issue temporary orders like a stay, it would undermine its role in protecting the Constitution and the independence of the judiciary.
He stressed that keeping the judges suspended could cause permanent damage to judicial independence and weaken the Constitution.
Sinkamba also pointed out that there is a strong case against the Commission, which went beyond its legal powers by trying to discipline judges it had already cleared. He submitted that the case is likely to succeed when heard by the full court.
Additionally, Sinkamba argued that the public has a greater interest in protecting judicial independence than in any temporary disruptions caused by halting the suspensions.
Even though the judges have already been suspended, Sinkamba insisted that that should be the driving reason for the court to issue an order to stay the suspension while the case is being heard.
“Before the decision is effected, there would be nothing to stay but once the decision is made that is when the stay order becomes more relevant,” he argued.
He also made it clear that the ongoing constitutional case is different from a separate judicial review that the suspended judges filed in the High Court.
Sinkamba emphasized that only the Constitutional Court has the power to deal with decisions made by the President under the Constitution.
During the hearing, the Attorney General relied on the written arguments it had earlier filed before court where it was claimed that the court has no authority to issue stay orders as they can only be issued from the High Court.
The ruling on whether to temporarily halt the suspensions is eagerly awaited, as it will have a significant impact on judicial independence in Zambia.
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