PROFESSOR Muna Ndulo says the suspension of Lusaka lawyer John Sangwa by the judiciary is invalid because it has no legal backing.
On March 13, the acting chief registrar issued a circular announcing that at the direction of the judiciary, Sangwa would no longer be allowed to appear before any court in Zambia until further notice.
The action followed a complaint of professional misconduct made by the judiciary to the Law Association of Zambia against Sangwa.
But Prof Ndulo, a US-based constitutional lawyer, argued that the circular did not cite law or explain a legal process which led to such a decision.
“My first thought upon reading this was that it was fake. Given the collective wisdom of the judiciary, as the circular purports to convey, one would believe so. I still suspect that this is the work of a small number of judges. The circular, uncharacteristic of legal orders, cites no legislative authority for the action and describes no process that led to this decision,” he said in a statement. “In my view, the circular is invalid for several reasons. First, the ‘circular’ is not an order of a court or tribunal properly constituted. A court order has to be issued by a court or tribunal properly constituted by law especially one depriving a citizen his or her rights. An order is an official proclamation by a court that defines the legal relationship between parties to a hearing, trial or other court proceeding.”
Prof Ndulo said court decisions were given by properly constituted courts or tribunals and not court officials writing circulars, regardless of the office of the official.
“No law clothes a judge or judicial office with the authority to issue a binding circular to parties out of the context of court proceedings or other legal process. The circular informs us that the ‘judiciary’ has lodged a complaint to the Law Association, that is, that the parties are Sangwa, SC, and the Judiciary,” Prof Ndulo noted. “Firstly, the term ‘Judiciary’, for purposes of a complaint, is vague. It begs the question who actually is the complainant. Who is the Judiciary? Is it a number of judges or a whole arm of government known as the Judiciary as constituted under the Constitution?”
He wondered how a complainant could be the same one to suspend the defendant.
Prof Ndulo further asked what legal process was followed which led to Sangawa’s suspension.
“Second, one of the parties as announced in the circular, in total disregard of a cardinal element of the principles of natural justice (you cannot be a judge in your own case) imposes punishment on the other (Mr Sangwa, SC) without a hearing and on charges only known by the complainant and not served on the defendant,” he observed. “The requirement of due process prohibits any tribunal from taking any action that would deprive a person of any right without the due process of law. This is not an abstract idea but a concept that is deeply ingrained in all legal systems in the world. It is a fundamental element of the concept of the rule of law. It provides a safeguard against judicial arbitrariness.”
He said the due process of the law provided several types of protection, among them procedural due process and substantive due process.
Prof Ndulo said such protection is contained in all human rights conventions, including in the International Covenant on Civil and Political Rights’ Article 14.
“Procedural due process requires that when a government acts in such a way that it deprives a citizen a right, the person must be given notice, the opportunity to be heard, and a decision must be by a neutral decision maker. All these rights were denied to Mr Sangwa,’’ Prof Ndulo noted. “Additionally, Mr Sangwa is denied a right of judicial review and the right of appeal to any court in Zambia, which would be available if the decision had been made by a tribunal set up by the Law Association of Zambia, or by a named court or judge. Mr Sangwa has no avenue for redress since the complainant is given as the ‘judiciary’ and the circular shuts him off the entire judiciary.”
He said judges were also human beings prone to mistakes.
Prof Ndulo hoped that the registrar would realise the mistake made in the Sangwa matter and correct it.
“I hope that the Registrar will realise the legal absurdity of his action and heed the calls from all over the world to withdraw the circular. To the Zambian Judiciary, my parting advice is to heed the words of Lord Atkin in (Ambard v. Attorney General of Trinidad and Tobago (1936): ‘Justice is not a cloistered virtue: She must be allowed to suffer the scrutiny and the respectful even outspoken, comments of ordinary men’,” advised Prof Ndulo. “Judges are not infallible and cannot pontificate to society. Judges can and do make incorrect rulings. Sometimes a judge’s ruling is factually inaccurate, and other times they include legal errors. Law journals and legal scholars worldwide evaluate and criticise court judgments. To blame the critics of court decisions for the public’s rejection of a court decision is like blaming the failure of a play or a book on bad reviews. It is the play or the book that is bad and not the reviewer who brings out the flaws in the works. In this case, the Registrar’s decision is fundamentally and utterly invalid.”
Recently, acting chief registrar and director of court operations, Prince Boniface Mwiinga wrote a letter informing judges, magistrates and registrars that “Sangwa, SC, an advocate of the High Court, practising under the firm of Simeza, Sangwa and Associates will no longer be allowed to appear before any Court in Zambia until further notice.
Mwiinga, in his letter, said Sangwa was suspended following a complaint of professional misconduct made by the judiciary to the Law Association of Zambia (LAZ) against the said Sangwa, SC.