SUSPENDED Livingstone magistrate Benjamin Mwelwa has complained to the Judicial Complaints Commission citing alleged anomalies, falsehood and lies by Chief Justice Ireen Mambilima and three other senior judicial officers meant to crush him.

In a 12-paged letter to the secretary of the Judicial Complaints Commission (JCC) dated April 30, magistrate Mwelwa of House No. 4424/Z36 Highlands, Livingstone, said the Chief Justice, her deputy Marvin Mwanamwambwa, the Registrar Charles Kafunda and the Registrar of the Subordinate Courts Twaambo Musonda have continued to breach Article 236 of the Constitution of Zambia to his detriment.

“I am in receipt of a letter dated 19th January 2018 written by the Deputy Chief Justice to one organisation at the instance of the Chief Justice in which it is stated that I was dismissed by Madison Insurance Company on the Coppebelt in 2011 for fraud and that the matter I had referred to the Constitutional Court was wrong,” he said.

“I want to start that…I have never been dismissed in my life for fraud by any company as I have never faced or committed any criminal offence either a misdemeanor or felony and it is a pity that such officers of that great responsibility can honestly come up with such malicious and unfounded lies in the bid to crush me so that they achieve their personal goals. On this point, I ask the Judicial Complaints Commission, being the institution mandated by law to investigate the judicial officers for any alleged misconduct notwithstanding that the alleged misconduct happened before I become a judicial officer to know the truth as I have nothing to hide and to further know that the Chief Justice and the Deputy Chief Justice do not mean well at all.”

He said that it was shocking that he was suspended from duty on August 9, 2017 after being charged with an offence of misconduct on June 9, 2017, when there was no recommendation from the JCC and that he has not been tried on any complaint as the law provides.

He said the reason for being charged with the offence of misconduct was that the Judiciary had received a complaint from the ACC concerning his close association with Maj Masonga of KBF & Associates, a firm that was representing one of the accused persons in a case involving former Livingstone mayor, town clerk and a councilor at the Livingstone City Council.

Magistrate Mwelwa said in the first week of January 2018, he received a copy of a letter dated December 26, 2017 written by the Deputy Chief Justice addressed to Sean Tembo of the Patriots for Economy (PEP) in reply to three letters that Tembo wrote in September and October 2017 to the Chief Justice which were attached to the said letter.

He said three letters were not copied to him and that he did not know anything about them until he received “this letter from the Deputy Chief Justice”.

Magistrate Mwelwa indicates that the Deputy Chief Justice in the letter stated that he was to be charged with an additional offence, bringing the number of misconduct cases to two without any recommendation from the JCC.

He further stated that on January 12, 2018, he was charged with two offences of misconduct by Musonda [Subordinate Court Registrar], the first being that of soliciting a politician to malign and defame the Chief Justice, thereby bringing her reputation into disrepute.

The second offence, magistrate Mwelwa said, was soliciting a politician and other persons to write to the Chief Justice concerning his purported on-going disciplinary matter and to champion his case in the public and social media, thereby bringing the image of the Judiciary into disrepute when there were no recommendations from the JCC.

“That in April 2018, I received a letter dated 16 February 2018 which letter is to read 16th March 2018, from the registrar Subordinate Courts Hon Twaambo S. Musonda in which letter she said to have referred my case to the Chief Administrator for further action pursuant to Regulation 40 (3) (c) of the Judicial Complaints Commission Regulations, 1998 and in the same letter she purportedly recommended that I appear before the Disciplinary Committee that should consider all purported charges that have been preferred against me,” he explained.

“That on the 20th April 2016 whilst in Lusaka for my call day, I was given a letter dated 20th April 2018 written by the Acting Human Resources Management Officer, a Mrs Tamara Z. Chizu, indicating that following my being charged with the offences of misconduct by the Registrar-Subordinate Courts, an Ad-hoc Committee was established to inquire into the cases of alleged misconduct by myself and therefore, they were requesting me to provide the management with the list of my expected witnesses. When I received this letter, I was shocked as no law was quoted pursuant to which this Ad-hoc Committee was constituted and who constituted it.”

On the matter in which he referred a case to the Constitutional Court, Magistrate Mwelwa said it was clear that the Constitutional Court, despite ruling that he [Mwelwa] was wrong to refer the matter to the Constitutional Court, agreed with him that the arguments raised by the defence were of very important Constitutional nature and therefore, it was not correct as asserted by the Deputy Chief Justice that the Constitutional Court said he was wrong.

“Furthermore, the letter is not only demeaning to me but also is not befitting to have been written by the office of the Deputy Chief Justice and also such a letter to be allowed to leave the institution like Judiciary led by the Chief Justice on whose behalf it was written, if she did not share the same thoughts, the Chief Justice could not have allowed it to leave their offices,” Magistrate Mwelwa said.

He further indicated that law and procedure needed to be followed on any alleged misconduct of a judicial officer as outlined in the Judicial (Code of Conduct) Act No. 13 of 1999.

“I was first suspended by the Acting Chief Registrar (Hon C. Kafunda) through a letter dated 9th August 2016. The matter was quiet for almost a year until 9th June 2017 when I was charged with the first charge of misconduct by a judicial officer. Since then, I have received several correspondences from the offices of Deputy Chief Administrator, Acting Chief Justice and Registrar-Subordinate Courts numbering to more than eleven letters,” Magistrate Mwelwa stated.

He stated that the whole matter in his view was based on his independence as a judicial officer in his discharge of duties and
procedures to be followed and that if there was any misconduct being alleged, the correct procedures should also be followed and that “this is not being done”.

“In these matters, the Judiciary and the ACC are the said complainants and surely if Judiciary management has the evidence that I have misconducted myself in any way and therefore breaching the provisions of the Judiciary (Code of Conduct) Act No. 13 of 1999 or any other law, then that should have been the reason to lodge a complaint against me to the Judicial Complaints Commission so that I cross-examine all their witnesses…if indeed the Judiciary has received a complaint from the ACC as they have been asserting, the Judicial Complaints Commission pursuant to section 25 (1) of the Judicial (Code of Conduct) Act No. 13 of 1999 and the Laws of Zambia and/or if the Judiciary wanted to be the complainant, they should have lodged a complaint against me pursuant to section 25 (2) of the Judicial (Code of Conduct) Act No. 13 of 1999 of the laws of Zambia to investigate
the matter, try me and if after my trial I was going to be found to have misconducted myself then the recommendation was to be made to the Judiciary for Judiciary to take the disciplinary action against me. However, I have not been made aware of any compliant by either the Judiciary or ACC to the Judicial Complaints Commission and therefore, I take it that there is no complaint at all from the ACC and I have not misconducted myself in any way,” magistrate Mwelwa said.

“The judiciary,not having directed the said complaint to the Judicial Complaints Commission pursuant to section 25 (2) stated above, is in breach of the law as the institution entrusted with huge responsibilities in the Republic of Zambia to uphold the rule of law, interpret and defend the law at all time…Furthermore, by charging me when there is no recommendation from the Judiciary Complaints Commission, they are also in breach of section 24 of the Judicial (Code of Conduct) Act No. 13 of 1999.”

He added that in the absence of recommendations from the JCC, the Judiciary cannot take any disciplinary action against him.

Magistrate Mwelwa said taking his matter to the Judicial Service Commission would be a blatant disregard of established procedures.

“The Judiciary is also in breach of Article 236 of the Constitution of Zambia and further, they have adopted a parallel Disciplinary Procedure not known by law in order to achieve their hidden goal which is an abuse of the law and their offices…the judiciary, having breached the Constitution of Zambia and the Judicial (Code of Conduct), it is either they are incompetent by knowing the procedure to follow if they alleged any misconduct on the part of the judicial officer. If they claim to know the correct procedure and then ignored it, that is a gross misconduct and therefore, let the provisions of the law be invoked more particularly Article 143 of the Constitution of Zambia section 24 and the Judicial (Code of Conduct) Act No. 13 of 1999,”
Magistrate Mwelwa pleaded.

JCC secretary Naisa Makaleta, in a letter dated May 17, 2018, acknowledged receipt of Magistrate Mwelwa’s letter of complaint and informed him that in accordance with the provisions of Section 26 (2) of the Judicial (Code of Conduct) Act No. 13 of 1999 as amended by Act No. 13 of 2006, his complaint “shall be laid before the JCC for consideration”.