Recently dismissed High Court judge Joshua Banda sues State
By Mwaka Ndawa
FORMER High Court judge Joshua Banda has contested his removal from office by President Hakainde Hichilema, saying he has never participated in graft during his entire practice as an adjudicator.
Banda was recently removed from office by President Hichilema at the recommendation of the Judicial Complaints Commission (JCC).
Banda, who has petitioned the State in the Constitutional Court over his dismissal, said the whole process by the JCC showed 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.
He is seeking an order to stay the decision by President Hichilema to dismiss him as it contravened Articles 143 and 144 of the Constitution.
He wants a 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 wants an order to quash the report of the JCC together with its findings and recommendations which made the President dismiss him for mischievous behaviour as the same is unconstitutional.
On May 6 this year, President Hichilema relieved Banda of his duties following a recommendation from the JCC for extorting litigants during the execution of his mandate.
Banda and his colleague Charles Kafunda were accused of soliciting for K130,000 from David Mwanza, a former sheriff officer, and in turn received K63,000 as an inducement or reward for them to have charges against the latter adjudicated in his favour.
In his petition, Banda said he applied for a job as a judge pursuant to Article 141 of the Constitution of Zambia Amendment Act No. 2 of 2016 and that on January 12, 2021, former president Edgar Lungu, acting on the recommendations of the JCC and in accordance with the powers vested in him under article 141 of the Constitution, appointed him as judge of the High Court subject to ratification by the National Assembly.
He said the recommendation by the JCC and the appointment by Lungu, subject to ratification by the National Assembly, meant that the former president and JCC were satisfied that he was disciplined and had the requisite qualifications to be appointed as judge of the high Court in accordance with the Constitution.
Banda said his appointment as High Court judge had never been challenged before any court or any other body established by the Constitution and their autonomy ought to be protected in accordance with Article 267 (4) of the Constitution and that the said decisions remain good and valid.
He stated that several complaints were lodged against him when he was a magistrate and registrar and the same were assessed by the recipients as unsubstantiated and not adverse, and that these complaints did not hinder his appointment as judge.
Banda said he came to learn that among the complaints and reports was a report by a Mr David Mwanza who reported to ACC and some named parliamentarians.
“The JCC also participated in the scrutiny process at the parliamentary select committee and indicated that it had only one adverse report against the petitioner, which had been resolved after considering the petitioner’s nomination with the chief justice and the JCC supported the petitioner as a person of proven integrity fit for appointment as judge of the High Court,” Banda said. “Your petitioner was duly sworn in as judge on July 14, 2021. And on the same day he was retired from his previous position of registrar of the High Court and as at the date of his retirement, his employer had never disciplined him or found him guilty of any misconduct whatsoever.”
Banda said from the time he took oath of office as registrar and judge of the High Court he has never breached the code of conduct and ethics for judges which became applicable to him by virtue of his appointment.
He said on January 4, 2022, he received a notification from the secretary of JCC pursuant to Article 236(2)(a)(b) and (c) of the Constition amendment act no. 2 of 2016 as read with sections 24 and 25 of the Judicial code of conduct Act no.13 of 1999 as amended by Act No.13 of 2006 about a complaint against him.
Banda said it was unconstitutional and outside the powers of the Commission to have considered the complaint.
He said the alleged complaint was lodged against him in his capacity as a judge but the allegation related to matters that were alleged to have taken place before he assumed his recent position from which he was dismissed.
“The conduct of the two who were chief registrar and registrar then, falls short of the judicial code of conduct Act and their being elevated to huge judicial offices (judges) in the face of this complaint defeats the purpose for which the law was enacted. I will greatly appreciate your independent investigation into the conduct of the two senior judicial officers who, in my view, do not qualify to hold such high judicial offices now as judges…” read Mwanza’s complaint.
Banda claimed that the former sheriff was aggrieved with his appointment to which he had the liberty to complain against his actions as registrar prior to his retirement.
“The complainant had the liberty to challenge the petitioner’s appointment and ratification before court and the National Assembly and the allegations were brought to the attention of ACC and parliamentarians prior to the petitioner’s ratification but the same complaint was taken to be a non-adverse complaint,” Banda said. “The petitioner was summoned to appear before the Commission and answer to a complaint of an alleged misconduct. The Petitioner whole process by JCC shows that the Petitioner was merely targeted by the Commission with a predetermined mind to remove him from office of judge, an epitome of an attack on the independence of the judiciary.”
He claimed that the JCC was biased and had a pre-determined outcome of the process as it was the investigator; it organised, prepared and led the witnesses.
Banda contended that the JCC compelled him to abandon a gazetted circuit court session in Livingstone which had been allocated to him and insisted that the proceedings for the Commission should go on as planned without considering his court session’s diary.
“The Commission which was supposed to be a neutral arbiter is actually the one that cross-examined the petitioner heavily after he gave his preliminary response to the complaints evidence. To test the credibility of the petitioner’s preliminary evidence, the petitioner’s evidence was lightly cross-examined by the complainant and it appeared as though the Commission had factual information,” he said. “The alleged complaint was against two judicial officers but only the petitioner was summoned. Yet, evidence was allowed to be laid against both judicial officers, thus showing desperate treatment and showing that the petitioner was targeted and the Commission had already convinced itself as to the guiltiness of the petitioner even before the hearing.”
Banda said he received the copy of the report on May 7, 2022 and he was shocked and disappointed that the JCC breached Article 216 (c) and (e) when it assumed the roles of both prosecutor and judge in the proceedings before it; and also when it, without notice to the petitioner, changed the investigation to that of removal from office, thereby failing to act with dignity, professionalism, integrity and its failure to be impartial in the exercise of its authority.
Banda contended that the disciplinary body contravened Article 236 of the Constitution by acting outside and in excess of its jurisdiction when it reviewed, controlled, directed, supervised and set aside the actions and decisions of the National Assembly, Lungu, other constitutional offices including itself.
He further wants an interpretation of Articles 143 and 144 of the Constitution as amended by Act No. 2 of 2016.
Banda is also demanding damages for mental torturer, ridicule, embarrassment, anguish and general damages.