ECONOMIC AND FINANCIAL CRIMES COURT ILLEGAL
Lusambo’s ConCourt petition put in sharper focus in fresh submission
Clearly, it is by dint of his individual tenacious self that former Kabushi Member of Parliament Bowman Lusambo is persisting with his Petition in the Constitutional Court regarding the constitutionality of administrative creation of the fast track Financial Crimes Court.
Lusambo has just made further submissions to the Constitutional Court, in response to the Attorney General’s Skeleton Arguments in support of the State’s answer to the Petition.
A reading of Lusambo’s fresh submissions will help objective Zambian citizen observers get clarification on the kernel of his Petition of the Constitutional Court filed on 31 January, 2023, in which he has raised some major issues.
The manner in which the Chief Justice, by an administrative arrangement, announced and facilitated the setting up of the Economic and Financial Crimes Court at both the Subordinate Court and the High Court, without stating the composition of the courts, and also in regard to how they squared with Zambia’s national values.
The second issue Lusambo raised was is that the maters that took him to court were not financial crimes, and yet he had been hurled before the new administratively created Economic and Financial Crimes court whose jurisdiction remained unknown.
These are matters that the ConCourt ought to consider on their own merits, even as the United Party for National Development (UPND) government seems set to steamroll through an anti corruption crusade that might both currently, and in future, evolve into a threat against certain constitutional protections of citizens’ rights to own property.
Hence the clarifications that have resulted from Lusambo’s submissions are critical to focusing this Petition, and the ensuing public debate.
On the establishment or creation of the Economic and Financial Crimes Court at Subordinate Level, it was not in dispute that the Economic and Financial crimes Court at Subordinate Court level was set up “administratively”.
This matter has to be considered in the light of the provision in Article 120(3) of the Constitution under Act Number 2 of 2016, which provides that in setting up such, processes and procedures of the courts shall be “prescribed”.
Also to be prescribed are the jurisdiction, powers and sittings, of the Industrial Relations Court, Commercial Court, Family Court, Children’s Court, and other specialised courts, and the classification and divisions of such courts.
Other matters to be prescribed are jurisdiction and composition of subordinate courts, small claiums courts, local courts, and other prescribed courts; and the grading of judicial officers and staff of subordinate courts, local courts and other prescribed courts.
At this point the most crucial point is a determination of what constitutes to “prescribe” all the aspects itemised in the preceding paragraphs?
Here is Lusambo’s submission made through Makebi Zulu Advocates:
“My Ladies and My Lords, this Honourable Court has on numerous occasions made pronouncements on interpretation of constitutional provisions. Relevant provisions must be brought to bear in interpreting the Constitution and that the ordinary meaning of words used should be adopted.”
“My Ladies and My Lords, we reiterate our earlier submission that classification and division of the subordinate courts is a matter to be prescribed and the use of the term prescribed means that this will be by an Act of Parliament and a careful look at the provision, there is the use of the word “shall”.
Lusambo submitted that this meant that there can be no discretion in the manner in which the Subordinate Court is set up or even classified, or even divided, because this was nothing short of a mandatory requirement or prescription.
He stated that since it was not in dispute that in the Subordinate Court today, there was what is called “The Economic and Financial Crimes Court”, a creation of an administrative action by the Chief Justice and not a creature of any prescription as provided for by the Constitution, it is illegal and a violation or breach of the Constitution.
“My Ladies and My Lords, the Constitution pronounces itself and defines the word ‘prescribed’. Article 266 of the Constitution defines it as: “ prescribed ” means provided for in an Act of Parliament”.
He said further that as clearly depicted, the word prescribed in this context was limited to the definition provided in the Constitution, as endorsed by The Constitutional Court in the case of Sean Tembo v ECZ and Attorney General 2021/CCZ7, citing also the case of Dipak Patel v Minister of Finance and Attorney General 2020/CCZ/005.
“This Court in both cases endorsed the adopted meaning of the word “prescribe” to mean provided for by an Act of Parliament.”
It was not in dispute that the powers and jurisdiction of the Subordinate Court as a Court were already prescribed in the Subordinate Court Act, Chapter 28 of the Laws of Zambia.
“The issue at hand is the Economic and Financial Crimes Court which is a division of the Subordinate Court at Subordinate Court Level and is not provided for by any Act of Parliament. There is therefore no prescription creating this Court or such a division which is a blatant abrogation/ breach of the constitutional provisions and as such, this act is unconstitutional and illegal. Further the Constitution of Zambia does not provide for establishment of the Court for convenience. There is in fact no such thing.”
Furthermore, Article 120(3) of the Constitution makes it mandatory that in constituting a court, jurisdiction, powers and sittings, processes and procedures of courts, juridiction of the Industrial Relations, Commercial, Family, Children’s, and other specialised courts, shall be prescribed.
“My Ladies and My Lords, in light of the above, we submit that the Economic and Financial Crimes Court at the Subordinate Court Level has no prescription firstly as to its establishment, its procedures and processes and its sitting. This state of affairs does not qualify such a Court to have the blessing of the law.”
Makebi Zulu Advocates, on behalf of Lusambo also submitted that even regarding the High Court level, the composition of any Court required to be prescribed, with the Constitution definition of prescribe applied as shown earlier.
“The Economic and Financial Crimes Court in the High Court has no Composition, no rules and processes and procedures as mandated and is in breach of the said Article 120.”
Lusambo also wants the Constitutional Court to take into consideration the well known political context in which the Economic and Financial Crimes Court was established.
“When the previous government was removed from office after the 12th August, 2021 general elections and the new government came into office. It was common to hear allegations of theft against their predecessors without any evidence.
This led to various executive pronouncements by the President followed by judicial pronouncements by the Chief Justice such as the stolen assets will be recovered and that there will be creation of Financial and Economic Crimes Courts whose main purpose was to recover stolen assets and money. The same have been exhibited in the affidavit verifying facts.
The Chief justice also had occasion to talk about these matters in public and made speeches in various places. His call was go and recover the assets and money so that the woman in chawama and so on and so forth which is away from the core duty of the Judiciary and this falls squarely within the functions of the executive arm of Government.”
He said from the foregoing, it was clear that the creation of these courts was targeted at a specific group of people.
On this subject In the case of Special Courts bill of India, the Courts had this to say:
“a special court had the ability to infringe the provisions of the constitution more specifically violating the provision that sets out the principle of equality before the law by giving others special and speedy trials that would entail that others are to be favoured more by the law which is blatantly unconstitutional, further it was observed that it is not allowable for parliament or state legislature to overlook or side step the scheme of the constitution by accommodating the foundation of a common or criminal court corresponding to a high court in a state, or by method of an extra or subsequent high court or a court other than a court subordinate to the high court”
The Petitioner said the Judiciary should not be an engine or a tool to be used by the Executive to oppress citizens, and that Justice was a matter of perception and there should never be a perception created of a desire to convict people by instruction not evidence, and without following the law.
“It is therefore our submission that the institution of the Economic and Financial Crimes Court following Executive pronouncements is unconstitutional, as it was and is not in accordance with the provisions of the Constitution and further prejudiced against your petitioner and others who are similarly circumstanced thus discriminatory in nature and an abrogation of our National Values and Principles as contained under Article 8 of the Constitution as amended under Act No. 2 of 2016.”
Makebi Zulu Advocates have also, as part of the Petition, brought up the matter involving Magistrate Faides Hamaundu whom they say fell foul when she endeavoured to interpret the Constitution.
The matter before Magistrate Hamaundu was The People V Bowman Lusambo and another 2SPE/024/22. According to Lusambo’s lawyers, the Magistrate in her ruling, despite warning herself that she had no Jurisdiction to interpret the Constitution proceeded to interpret the Constitution, as can be seen from the said ruling exhibited, when she proceeded to interpret Article 18 (1) and 118 of the Constitution in blatant breach of Articles 128 and 119(1) of the Constitution of Zambia.
Subject to article 28, the Constitutional Court enjoys original and final jurisdiction to hear matters relating to the Constitution. The interpretation of article 18, 118(a), and 118(b) was an act in excess of the Subordinate Court’s inherent jurisdiction and a breach of article 128.
In the Petition, Lusambo also insists that when on Friday, 20th May, 2022, the cadres for the United Party for National Development(UPND) stormed the Lusaka Subordinate Court demanding for the overhaul of the judiciary to weed out judicial officers they term are allegedly working against the current regime, its impact was undeniable because, sometime between Saturday, 21st May, 2022 and Tuesday, 23rd May, 2022, the Judicial Service Commission transferred 10 magistrates from Lusaka who were handling hundreds of different cases.
“The Judicial Service Commission confirmed that it had transfered 10 magistrates out of Lusaka and explained that the decision was not influenced by politics. My Ladies and My Lords, the influenced transfer of magistrates although independently and rightly provided for will still be held to be unconstitutional if such power is exercised without the necessary independence and autonomy of the Judiciary as exhibited herein.”
Lusambo’s lawyers also said that contrary to the submission by the Respondent that the Petitioner herein by moving the Constitutional Court wanted to circumvent criminal proceedings, it was their submission that the Petitioner having identified the alleged constitutional breaches was seeking a determination by this Court on the said breaches.
They submitted that the Petitioner was entitled to the reliefs sought in his Petition, including costs.
Lusambo is seeking from the Constitutional Court an order and declaration that the setting up of the Economic and Financial Crimes Court administratively at the subordinate court level is a breach of Article 120 (3)(c) of the Constitution and is therefore unconstitutional and illegal.
He is also seeking an order and declaration that the transferring of 10 magistrates by the Judicial Service Commission using section 6(e) of the Judicial Service Commission Act contravenes Article 122 of the Constitution of Zambia Act number 2 of 2016.
ends