Hichilema was right to fire Judge Joshua Banda for corruption
THE Constitutional Court has ruled that the failure by the Judicial Complaints Commission to have former High Court judge Joshua Banda suspended pending investigations in his graft activities is water under the bridge as he was already fired.
Constitutional Court president Margaret Munalula says even though the court directs that the case be re-heard it will serve no purpose as the outcome is already known.
In this case Banda contested his sacking as an adjudicator by President Hakainde Hichilema for engaging in graft for soliciting a ‘Ka something’ from a litigant.
Banda who petitioned the State in the Constitutional Court over his dismissal said the disciplinary process by JCC shows that he was merely targeted by the commission with a pre-determined mind to discharge him as he was the only one who was singled out when the corruption allegations were against him and judge Charles Kafunda.
Banda sought an order to stay the decision by President Hichilema to fire him as it contravenes Articles 143 and 144 of the constitution.
He wanted the Court to 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 the same is the preserve of the President, Judicial Service Commission and the National Assembly.
Banda sought an order to quash the report of the JCC together with it’s findings and recommendations to the President to have him fired for mischievous behavior as the same is unconstitutional.
On May 6, 2022 the Head of State relieved Banda of his duties following a recommendation from the Judicial Complaints Commission for extorting a litigants during the execution of his mandate.
Banda was accused of soliciting for K130,000 from David Mwanza a former sheriff officer as an inducement or reward for a favorable judgement in case where he was accused of defrauding Mopani Copper Mines K8 million.
But in her judgement judge Munalula on behalf of judge Ann Sitali, Mungeni Mulenga, Matthew Chisunka and Judy Mulongoti said
Banda’s argument that he was not heard on a charge of gross misconduct is devoid of merit as the charge clearly referred to corrupt practices which is captured by the definition of gross misconduct under Article 266 of the constitution.
She said the JCC acted in line with it’s mandate in Article 236 and Article 143 as there was a complaint which it had to investigate and Banda was informed about it and he responded to the allegations.
Judge Munalula indicated that the JCC properly considered the complaint even though it was after ratification of Banda’s appointment as High Court judge and covered pre-appointment misconduct because it was pending before it.
“The fact that a judge has been appointed to that office does not insulate the judge from being investigated for past misconduct particularly when the alleged misconduct occured before one became a judge and there was a complaint lodged against them that was pending hearing,” she said.
She indicated that The JCC did not usurp the powers of the Court when it investigated the complaint.
Judge Munalula indicated that the Commission had no option but to act in accordance with Article 144(2) by submitting a report to the President once a prima facie case had been established against Banda.
She said the JCC’s failure to suspend Banda before his hearing and removal is inconsistent with procedure in Article 144 of the constitution.
“Though the JCC breached Article 144 the complaint was a serious allegation of corrupt practices which brought his integrity into question,” judge Munalula noted.
“In his own evidence during trial Banda admitted receiving money from the complainant and purportedly giving it back because the complaint was extorting money from him.”
She said even though the JCC did not act in accordance with Article 144(2) and (3) Banda was given an opportunity to be heard on the charges of corrupt practices for which he was found wanting.
“We decline to grant the the declarations and other reliefs sought by the petitioner as they would serve no useful purpose in that even though the complaint was to be re-heard to ensure compliance with Article 144(2) the outcome is already known,” said judge Munalula.
By Mwaka Ndawa
Kalemba