Dismissed Concourt judges want their removal from office reviewed
Three dismissed Constitutional Court judges have challenged their firing insisting that they made decisions on the 2016 presidential election petition in good faith, exercising their judicial function.
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The trio claims it was illegal for the Judicial Complainants Commission to find them wanting and recommend their removal from office.
Anne Sitali, Mungeni Mulenga and Palan Mulonda have instituted judicial review proceedings against the State in the Lusaka High Court seeking an order of certiorari to quash their dismissal on allegations of incompetence raised by businessmen Moses Kalonde.
The trio is seeking an order that the proceedings before JCC were illegal, a nullity and void ab initiio on grounds of lack of jurisdiction.
Sitali, Mulenga and Mulonda want punitive damages for an injury to their reputation and mental anguish and torture.
They are demanding their full retirement package in accordance with a judge’s conditions of service, and accrued benefits for personal to holder vehicles.
In an affidavit in support of application for judicial review the three said the JCC’s finding of a prima facie case of incompetence and gross misconduct against them, based on mere and untested allegations of incompetence and gross misconduct by the complaint without evidence, was procedurally improper, irrational and made in bad faith.
The erring former judges said the JCC was wrong to submit to the President a report, advising him that a prima facie case had been established against them and recommended that they should be suspended from office as Concourt judges.
“The JCC’S decision to reopen and rehear issues of alleged misconduct relating to our handling of the presidential election petition in the case of HH and another and ECL and others in cause no.2016/CCZ/0031, which issues were previously conclusively heard and determined by JCC in its six rulings of October, 2017 and to review and reverse its initial findings against us on the same issues, was illegal for want of jurisdiction and statutory power and was unreasonable and procedurally improper,” the three said.
The three argued that the report of the JCC to the President dated September 23, did not state the new issues raised by kalonde under his complaint and further did not state the grounds on which the prima facie was made against them.
Sitali and her colleagues said they only learned about their suspension through a press statement issued by State House chief communications specialist Clayson Hamasaka and was widely circulated in the media.
“The JCC conducted a hearing on October 14 and 16 October, 2024, and our advocates on record were directed to file our submissions on October 18, 2024, a public holiday,” the three said.
“On Sunday evening, October 20, we learnt trough a press release issued by the President’s chief communication specialist and availed to the public media and broadcast by various relevant radio stating that the Republican President had removed us from office as ConCourt judges base on a report of JCC dated October 20.”
The former judges said they received the JCC’s report and dismissal letters on Monday October 21, 2024.
“The decision of the JCC to recommend our removal from office based on the performance of our Judical function made in good faith in the presidential election petition is illegal, procedurally improper, irrational and made in bad faith,”said Sitali and her colleagues.
“It is our position that there is a case fit for further investigation in judicial review proceedings and the threshold for such proceedings and for grant of leave has been met.”
Sitali, Mulenga and Mulonda are seeking an order of certiorari to quash the decision of the JCC made on September 23, that it has jurisdiction to reopen and hear a complaint by Moses kalonde relating to the handling of presidential election petition when the issues raised in the said complaint were dealt with and concluded by the commission in 2017 in earlier complaints.
They want an order of certiorari to quash the decision of JCC to recommend their suspension based on a purported prima facie case of incompetence or gross misconduct arising from a complaint and relying solely on the complaint and the response in that matter contrary to the previous ruling of JCC dated October 13,2017.
The three want the court to order that the decision and failure by the JCC to avail the findings and recommendations to them, the reports recommending their suspension and removal from office before they were effected was illegal and improper and contrary to the rules of natural justice.
The trio is further seeking damages arising from its removal from holding office as ConCourt judges following the illegal and incompetent recommendation by the JCC.
By Mwaka Ndawa
Kalemba November 21, 2024.
Bane people need to move on. What institution is suppose to review the decision? When a Minister is fired. Who reviews? The process was completed.
People should stop behaving like they own jobs and positions. If their conduct and as the AG suggested they were competent they would still have those positions.
We need to uphold standards of conduct and people need to realiase that they dont not own positions
There is such a thing called UNLAWFUL and also another called UNFAIR dismissal. It is not that one is ‘holding on to a JOB’ BUT THEY HAVE THE RIGHT to be terminated legally and fairly.
This matter was heard by three Judges of the High Court before the President dismissed the three ConCourt Judges. Normaly, a matter before the High Court is heard by a single Judge. So, it remains to be seen how many Judges will be assigned this time around.
And by the way, whilst review of JUDMENT is provided for in the High Court Rules, the little readings in the article suggests that this is a matter which should have been appealed either to the Court of Appeal or ConCourt rather than a review or re-litigation, with most likely the same result or outcome.