Sinkamba loses bid to block HH from suspending ConCourt Judges
CONSTITUTIONAL Court Judge, Kenneth Mulife has dismissed an application by Green Party president Peter Sinkamba, seeking an interim stay of President Hakainde Hichilema’s decision to suspend three judges.
Mr Sinkamba’s application challenged the suspension of judges Annie Sitali, Mugeni Mulenga, and Palan Mulonda, arguing that the President’s decision was unlawful and sought to halt its implementation.
However, the Attorney General and Judicial Complaints Commission countered that the sought order was untenable since the judges had already been suspended.
They urged the court to dismiss the application with costs.
Judge Mulife agreed, citing the principle that an order of stay cannot issue where the decision sought to be stayed has already been implemented.
He concluded that Sinkamba’s application was frivolous and misconceived.
“The law is well settled that an order of stay cannot issue where the decision or judgment sought to be stayed has already been implemented,” Judge Mulife stated.
The ruling emphasised that the applicable provision for the summons was Order X, Rule 2(1)(2) of the Constitutional Court Rules, not Order 59/13/2 of the White Book, as suggested by the respondents.
Judge Mulife noted that the omission to expressly mention an order of stay in Order X, Rule 2(1) of the CCR should not exclude its applicability to the relief sought.
However, he maintained that the overriding question was whether a decision that had been implemented could be stayed. “The basis for the principle is logically that there would be nothing to stay once a decision or judgment has been implemented,” Judge Mulife explained.
The judge cited the case of Joshua Banda v AG, where the petitioner sought an order to stay the President’s decision to remove him from the office of High Court judge.
In that case, the presiding single judge ruled that there was nothing to stay because the President’s decision had already been implemented.