Monday, 16 September 2013

Defiling sanctuary of the courts for personal interests

While it is right to protect the sanctuary of our courts from special interests corruptly finding sanctuary there, President Sata is wrong and faces serious ethical questions over the manner he is trying to clean the courts of perceived corrupt elements because he as a leader has not proved to be immune from settling scores for personal friends against judges he has suspended thus far


Zambia Supreme Court: Is it  habouring corrupt special interests in its chambers?
By Nyalubinge Ngwende
Taking the words Theodore Roosevelt spoke in New York 101 years ago today, it is not denied that ‘democracy has a right to approach the sanctuary of the courts if the special interests have corruptly found sanctuary there’.

Zambia is no exceptional to this truth. Only that, here in the Southern African nation, it is not democracy making an intrusion into the courts of law to ensure all people get fair justice. Instead it is a single callous hand of the head of state disheveling that sanctuary. 

Hardly full two years in office, President Michael Sata already has three tribunals running and wants five judges removed, one from Supreme Court and four from the High Court,

On May 1, 2012, Sata appointed a tribunal headed by a Malawian high court Judge Lovemore Chikopa to probe the alleged misconduct of three Zambian justices Philip Musonda (Supreme court), Charles Kajimanga and Nigel Mutuna (both of the High Court).

 The Chikopa tribunal has yet to sit because its legality is being challenged by the affected Judges.

Meantime while the first tribunal remains suspended awaiting court ruling, Sata has appointed two more tribunals to probe two Ndola High Court Judges, Emelia Sunkutu and Timothy Katanekwa.

Well he may have justification that he is doing so within the confines of the legal authority provided him by the constitution.

But in the face of moral questions of a single hand that cannot be immune to serving special interests of acquaintances or corporate friends, Sata would have restrained himself and allowed the process to start with the Judicial Complaints Authority established by the Judicial Code of Conduct Act number 13 of 1999.

The institution's mandate is to regulate the conduct of the entire adjudicator through investigation of allegations of non-impeccable misconduct in a bid to promote professionalism, among others things.

It would have been only after this Authority establishes the merits of the complaints, ensuring that such misgivings about the judges are not frivolous, vexactious and malicious, that they were to submit recommendations for the President to act.
 
The spirit with which this important arrangement is being overlooked raises moral and legal questions.

There are in fact some tale-tell events that may put President Sata in the spotlight of not doing what he is doing in the interest of fair justice.

The Lovemore Chikopa tribunal is one obvious case of President Sata trying to punish judges for his friends.

Mutuna, Kanjimanaga and Musonda are victim of their bold decision in a case in which Mutembo Nchito (now DPP) and Fred M'membe (owner of the Post Newspaper and confessed friend of Sata) were told to pay back K14 billion they had borrowed from a public bank, Development Bank of Zambia.

The head of State confirmed this when he appointed the tribunal to probe the three justices. 

“My office has received numerous complaints about Justices Philip Musonda who is a Supreme court Judge, Charles Kajimanga and Nigel Mutuna who are High court Judges, from the Law association of Zambia, Lawyers within the judiciary and members of the public”.

“The terms of reference would be based on the allegations that the trio interfered with a case involving the Post newspapers, Development Bank of Zambia (DBZ and JNC holding limited and Mutembo Nchito”.

It must be noted here that LAZ has not agreed with President Sata on this tribunal. This makes it a blatant lie for Sata to claim LAZ was one of the institutions that complained to him about the misconduct of these judges.

Now we have the recent two tribunals that are pursuing cases against the two Judges that President Sata referred to as “criminals who are frustrating the work of the acting Chief Justice Lombe Chibesakunda”.

Chibesakunda has been at the centre of the judicial crisis in the country as she has continued to act in the position of Chief Justice despite the parliamentary committee rejecting her as unfit. She already reached retirement age of 65, but President Sata has continued to keep her in the position, arrogantly ignoring advice from the legal bodies to remove her and appoint an eligible judge to fill the position.

“You have been long in this game and I’m sure you are going to do a good job,” Sata told the two Judges when he sworn them to head the two tribunals that are investigating Ndola High Court Judges Emelia Sunkutu and Timothy Katanekwa.

The tribunal to probe Justice Sunkutu will be headed by former Chief Justice Mathew Ngulube while the tribunal to probe Justice Katanekwa will be headed by Justice Frederick Chomba.

Is it is a tragedy that President Sata is using a thief to catch a ‘thief’? Ngulube was forced to leave office as Chief Justice in 2002, after he was discovered to have been a beneficiary of US$168,000 that second republican president Frederick Chiluba had unlawfully taken from public funds.

It is strongly believed Chiluba gave the money as an inducement to buy Ngulube’s loyalty.  It is true he made a number of questionable rulings in favour of Chiluba and his aides, including throwing out a petition that wanted to establish the former president’s nationality.

Sata was then minister without portfolio and a confidant to late president Chiluba. He knows about the questionable character of Justice Ngulube, but why he has chosen to ignore ethical questions surrounding this man is because such issues of ethos do not trouble his conscience.

It is such implications that make it difficult for Sata to escape accusations of special interests. Roosevelt, who was an advocate for judging the judges, warned against this. He said implying that it is not democracy for the same hand that wants a judge recalled to appoint a tribunal to judge the case of the Judge(s). He insisted that that democracy that reflects the interest of the justice that the whole people clamour for must probe the case.

Even in Zambia’s case it is very difficult to justify a single hand of a president to represent that right of democracy to approach the sanctuary of the courts. This is especially that the available legal arrangements that would ensure that democracy prevails are to a great extent being deliberately trampled on.