The Judicial Complaints Commission on Friday last week made a finding  that the five Constitutional Court Judges who presided over the 2016 Presidential Petition filed by UPND Presidential Candidate Hakainde Hichilema, and his Vice President Geoffrey Bwalya Mwamba, failed to properly interpret Articles 101(5) and 103(2) of the Constitution in relation to the time-frame for hearing of Presidential Petitions.

The Commission also found that the bench made contradictory or flip-flop decisions on at least three occasions in relation to the lapse of the 14-day period provided under Articles 101 (5) and 103 (2) for hearing of presidential election petition.

Furthermore, the Commission  found that the bench abruptly terminated the hearing of the Petition thereby contradicting its earlier commitments that it would not do so.

The Commission established further that from three possible scenarios on the interpretation of 14-day time-frame for hearing of presidential petitions, the abrupt termination of the proceedings, as the bench did on 5 September, 2016 was wrong because only 10 days lapsed instead of 14.

The Commission made these pronouncements when it delivered its ruling on the  complaint which Peter Sinkamba of the Greens  filed last year on 6 September 2016 seeking the removal of five Constitutional Court Justices, namely, Justices Hilda Chibomba, Annie Sitali, Mungeni Mulenga, Margret Munalula and Palan Mulonda from office of judge on grounds of incompetence and gross misconduct pursuant to Articles 143 and 144 of the Constitution.

“I had complained to the Commission that the bench issued contradictory orders on the time-frame to hear the petition, which bordered on breaching Rules of Constitutional Court and the Constitution of Zambia. According to my understanding, the flip-flop orders were not only clear manifestation of incompetence but also prejudicial or inimical to the economy of the country as well as threatened the security of the State. I had feared that, as a consequence of mismanagement of the petition, the President was likely to invoke Emergency Provisions and thereby declare the State of Emergency. This fear came to pass in due course,” Sinkamba said after the ruling.

“I also complained that probably in the history of Zambia, it was the first time that the entire teams of very senior lawyers representing a petitioner or petitioners walked out in protest due to the behaviour of the bench. And that probably, this was the first time too that an entire team of lawyers representing a respondent or respondents boycotted appearing before the bench. I contended that the walk-out and boycott by “officers of the Court” was a sign that the manner in which the bench presided over the matter before it was fundamentally wrong and thereby the Constitutional Court had been brought into disrepute, ridicule or contempt. I tendered evidence to the Commission of commentaries featured in public and private print and electronic media, where the Constitutional Court was ridiculed and contemptuously written or talked about,” he added.

Despite most of my allegations being ascertained in its findings as stated above, the Commission nonetheless ruled that I did not establish a prima facie case against the judges to warrant their removal from office. I really wonder why multiple contradictory decisions which were actually proven by Commission cannot be prima facie,” Sinkamba regretted.

“thought a prima facie case of professional misconduct is based on the first impression accepted as correct until proved otherwise. Now in this case, the allegations went beyond first impression stage but were actually proven correct by the Commission after a series of hearings. I therefore cannot surmise what the Commission means by prima facie case.

I also wonder why the Commission appeared to be reluctant to consider multiple proven evidence of flip-flopping as proof of incompetence. It does not necessarily need to take flip-flopping in several cases to prove incompetence. Even in a single case, as it were in this case, incompetence can be proven.

Take for instance the case of the game of soccer. A player who has been cautioned or shown a yellow card may continue playing in the game. However, a player who receives a second caution or shown a yellow card in the same match or the immediate next game, is sent off. When one repeatedly makes bookable offences whether it is in the same game or the immediate next game, he or she is a sure red card case. So, to me, multiple contradictions in the same case, is incompetence deserving a red card.”

Additionally, I wondered why the Commission held that behaviour which brings the Constitutional Court into disrepute, ridicule or contempt is not one of the grounds provided under Article 143 for the removal of judge from office when Article 266(a) of the Constitution defines “gross misconduct” as “behaviour which brings a public office into disrepute, ridicule or contempt”.

According to Article 266 of the Constitution, the office of the judge is a public office since emoluments and expenses of that office are a charge on the Consolidated Fund. This being the case, any behaviour that brings the office of the judge into disrepute, ridicule or contempt is gross misconduct.

Nonetheless,  I would like to commend the Commission for granting us a hearing. Their decision is clearly a win-win kind of a decision,” he stated.

“The State benefited from the decision in the sense that the State was going to be very embarrassed had the entire bench been removed from office.  On-going cases before the Constitutional Court would have been thrown into disarray, and it is no wonder that the Attorney General sided with the judges throughout the proceedings.

The judges benefited greatly from the decision in the sense that it would have been extremely embarrassing on their part to be removed from office for incompetence and gross misconduct. It does not auger well for the future when one is removed from office on such grounds.”

As for we the citizens, our benefit from this whole episode is that we have practically shown that sovereign power of the State vests in we the people. We have shown that the people have power to directly and indirectly hold office bearers accountable though the system requires some panel-beating to perfect it.

Based on the lessons learned from this case, there will be need to review the Judicial (Code of Conduct) Act so that Commissioners serving on the Commission are not allowed to represent clients in courts of law. In this case, the Chairman of the Commission Professor Patrick Mvunga and the Vice Chairperson Mwangala Zaloumis declared interest to sit during hearings because they were lawyers for respondents and petitioners respectively. This scenario left three Commissioners to handle the petition and when one of them died shortly after closing submissions, only two remained to conclude the work.

Ethically and morally, it does not auger well for a Commissioner who is supposed to preside over the discipline of judges to be appearing before the same judges. This has potential to compromise the decisions.”

Also, we need to address the aspect of procedure. The Commission should not be at liberty to choose which procedure to adopt. For example, the procedure adopted by the Commission in the determination of the case of ConCourt judges was rather queer. How on earth can one prosecute a person who is not suspended? All over the world, when one is facing disciplinary charges, they are supposed to be suspended from work to facilitate unencumbered investigations.”

However in this case, in the morning the judges were appearing before the Commission on allegations of incompetence and gross misconduct, and in the afternoon, the judges were presiding over the other cases in court. Where then are ethics and morality?

The other key issue that needs to be addressed is the aspect of judicial review. If, for example, a judge is dissatisfied with the outcome of the Commission’s decision on points of law, and wishes to appeal, the question is: appeal before which forum?” How can a serving judge appear before another serving judge in judicial review proceedings and expect fair play, especially so if the litigant judge is from a superior court? We need to thoroughly think through these issues before we find ourselves cocoon at the end of the day,”  Sinkamba said.