Judge Sunday Nkonde Petitions Constitutional Court
Did JCC deliver justice in Sunday Nkonde case?
Lusaka-Friday, 17th February 2023
…Nkonde’s Petition has raised issues of conflict of interest among members of the JCC, and others involved in the hearings, matters relating to the investigation and hearing, special facts and circumstances, and a plethora of allegations of constitutional violations which will all play out when this Petition is finally heard by the Constitutional court….
There are many significant details that have been obscured because of the necessity of brevity in the presentation of new items, which may have hidden a mountain of breaches and violations perpetrated to remove former Judge Sunday Nkonde from the bench.
In the end, a reading of the chronology of developments that resulted in the removal of Judge Nkonde from the bench suggests he was penalised, not for the complaint by Fred M’membe to the Judicial Complaints Commission (JCC) for his work whilst running SBN Legal Practitioners, but for his handling of the Liquidation of The Post as a Judge.
For the crucial fact on which the complaint against Nkonde was hang, that while at SBN Legal Practitioners Nkonde, as a lawyer instituted liquidation proceedings against The Post, on behalf of Finance Bank, without being instructed, remained unproven by the JCC even at the time of the final report on which President Hichilema based his final decision.
Hopefully, the Petition of Nkonde before the Constitutional Court will allow for a more thorough scrutiny of the conduct of the JCC in handling the complaint that resulted in President Hakainde Hichilema dismissing him from the bench.
Documents now before the Constitutional Court leave an impression of the JCC’s imprudent handling of procedures in processing a complaint, whose finding of a prima facie case against Nkonde was only aided by the outcome of a Supreme Court appeal of the then High Court Judge Nkonde’s decision that led to liquidation of The Post.
Here is what is before the Constitutional Court in the form of a Petition by Nkonde, filed on 25 January, 2023. It paints a picture of a JCC over-eager to play its part in the de-Baathification of the Zambian judiciary (after the manner the Americans purged all Iraqi government institutions of members of the Baath Party after the fall of Saddam Hussein).
On evidence of current developments in the judiciary, Nkonde may just have been the first target, owing to a coincidental confluence of interests of the Complainant to the JCC, M’membe, and a New Dawn government keen to create space for their own extreme makeover of the judiciary.
In the Petition, Nkonde is seeking declarations and orders of the Constitutional Court that would effectively reverse the findings of the JCC, and nullify its recommendation for his suspension and dismissal, on account of violation of multiple articles of the constitution, and abrogation of matters of procedure that amounted to him not having been given ample time and chance to defend himself against the complaint against him.
On 3 June, 2022, the JCC submitted a report to President Hakainde Hichilema, in which it said it had taken into account the finding of the Supreme Court in the Appeal against liquidation of The Post, to conclude that the Complainant’s allegations against Nkonde had been substantiated.
But the Petitioner’s contention is that the JCC did not find that the complaint alleging that he sued on behalf of Finance Bank without the bank’s instructions was true, when it heard the matter on 10 February 2017.
And that he was also not given an opportunity by the JCC to be heard in relation to matters in the Supreme Court appeal, before taking into account the Supreme Court findings, neither was there a fresh complaint before the JCC arising from the said findings of the Supreme Court.
The whole saga started in 2016 when Andrew Chiwenda and other former employees of The Post Newspapers Limited commenced liquidation proceedings against the company, and the case was allocated to then Judge Nkonde to adjudicate.
While the case was active, on 10 February, 2917, Fred M’membe a shareholder in the Post newspapers Limited, lodged a complaint against udge Nkonde before the JCC alleging gross misconduct.
The alleged gross misconduct was that Nkonde sat as a Judge to determine a matter involving The Post Newspapers, a company he tried to destroy as part of a political scheme to silence critical media, by bringing an action on behalf of Finance Bank without instructions.
The allegation was that proof of Nkonde’s hostility towards The Post was now exhibited through a number of due process and procedural aberrations as he sat to determine the liquidation proceedings started by Chiwenda and others.
But even as M’membe alleged in the complaint that he had it on authority that there was lack of instructions for Nkonde to act for Finance Bank, he did not disclose the authority he allegedly had.
The Finance Bank case in question was Finance Bank Zambia Limited VS Kieran Day sued in his capacity as Receiver of Mines Air Services Limited, Mutembo Nchito, Nchima Nchito and Fred M’membe, in which the bank was claiming $4,208,938.28, arising from an overdraft facility extended to the borrower (Zambian Airways).
Since such an action without instruction would have constituted misconduct, curiosly there was no complaint from the Receiver or JCN Holdings Limited or Mutembo Nchito, Nchima Nchito or Fred M’membe to the Law Association of Zambia.
The JCC, without disclosing the material M’membe had provided to it as authority for the allegation, requested Nkonde to responde to the complaint, while the liquidation case was still active, failure to which it would proceed to render a finding on the complaint.
The JCC even proceeded, in the absence of Nkonde, to make findings and submitted a report dated 10 November, 2017 to the President recommending his suspension. However, Judge Nkonde then applied for judicial review to challenge the decision of the JCC.
The Attorney General who represented the JCC in this matter entered into a consent judgment with Nkonde, dated 5 December, 2017, the Ruling by the JCC of 10 November, 2017 was quashed.
But in January 2018, the same complaint by M’membe, with the same facts was reopened for unvestigation by the JCC, with another request for Nkonde to respond to the allegation.
Nkonde raised an issue with the JCC re-opening investigation of the complaint when there was also an active Petition filed by M’membe before the Constitutional Court on 19 January, 2018, and also the participation in the JCC hearing of Mwangala Zaloumis, his relation through marriage.
Notwithstanding the issues raised, the JCC went ahead to investigate the complaint, in the absence of Nkonde, and found him with a prima facie case, and submitted a second report to the President dated 14 November, 2018, recommending his suspension from office.
Nkonde then instituted judicial review proceedings in the High Court in March 2018. Meanwhile on 15 January, 2019, the Constitutional Court dismissed M’membe’s petition.
Then on 9 November, 2020, Justice Getrude Chawatama rendered her Ruling wherein she made findings of fact and pronounced that what the JCC did regarding the disciplinary process against Nkonde was outside its permissible limits.
After determination of these two cases, Nkonde continued to perform his judicial functions, including being assigned to handle some of the August 2021 parliamentary election petitions.
Suddenly on 12 January, 2022 the JCC wrote to Nkonde’s Advocates informing them that the JCC had again re-opened investigations into the same allegation, on the same facts contained in the complaint of 10 February, 2017 and summoned him to appear on 10 February, 2022 for “formal hearing of evidence’.
The JCC also informed Nkonde’s Advocates that its new team was constituted with Vincent Malambo as Chairperson, and Irene Kunda and Dean Mwansa Mumba as members, and also requested that the parties consider that the said Rene Kunda was the one instructed by the Law Association of Zambia to wind up SBN Legal Practitioners which was being run by Nkonde before his appointment as Judge.
Then followed a flurry of letters between the JCC and Nkonde’s advocates Messrs Makebi Zulu Advocates.
On 25 January, Nkonde’s Advocates wrote to the JCC objecting to having Malambo and Kunda sitting in the hearing for reasons of perceived bias, and also sought clarification on whether the 10 February, 2022 date was for a re-hearing or continuation of the previous complaint.
There was no response from the JCC, but instead the JCC wrote on 3 February, 2022 stating that it would meet on 10 February, 2022 to decide the question of the objection and thereafter proceed to hear formal evidence of the original complaint of 10 February, 2017.
Nkonde’s Advocates, for their part, sought clarification on the status of the JCC’s recommendations after its finding of a prima facie case on 14 November, 2018, which was challenged before Justice Chawatama.
Then on 9 May, 2022, the JCC served Messr Makebi Zulu Advocates with a report to the President dated 6 May, 2022 on a decision and Ruling on a prima facie case on the allegation made in the complaint, recommending suspension of Nkonde as Judge.
In the Petition before the Constitutional Court Nkonde has stated that:
“It was unreasonable for the JCC to recommend to the President suspension of the Peitioner….without first calling for and looking at material evidence or documents from Bank of Zambia and Finance Bank relating to the allegation that the Petitioner then Messrs SBN Legal Practitioners had no instructions to sue on behalf of Finance Bank in Cause No 2011/HPC/0511.”
There was another string of letters back and forth for another hearing set for 11 May, 2022, for which the Petitioner says he was not given adequate time to respond, and other procedural matters, until the significant development of June 2022.
On 3 June, 2022, the JCC wrote saying it had taken into account findings of the Supreme Court in Appeal in finding the complainant’s allegation against the Petitioner as substantiated and recommended, again, to the President the removal of Nkonde from the office of Judge, and it was effected the same day by the President.
But even at this time the JCC did not indicate that after its hearing of the matter at its last sitting, that the allegation by M’membe in the complaint of 10 February, 2017, that Nkonde sued on behalf of Finance Bank without the bank’s instruction was found to have been true.
Neither did the JCC give Nkonde an opportunity to be heard in relation to matters in the Supreme Court Appeal, before “taking into account the findings of the Supreme Court”.
Beyond this chronological narrative, Nkonde’s Petition has raised issues of conflict of interest among members of the JCC, and others involved in the hearings, matters relating to the investigation and hearing, special facts and circumstances, and a plethora of allegations of constitutional violations which will all play out when this Petition is finally heard by the Constitutional court.
Hopefully the final outcome will satisfy Zambians that, despite occasional missteps, the judiciary in Zambia is still in the business of delivering justice, not facilitating games of political payback.
ends