The Supreme Court has delivered a four-hour judgment today advising the Government against proceeding with the Chikopa tribunal set up to investigate the alleged professional misconduct of three Judges.
Acting Chief Justice Lombe Chibesakunda on behalf of a bench of seven ruled that President Michael Sata did not breach his Constitutional powers when he suspended the three are Supreme Court Judge, Phillip Musonda and two High Court judges, Nigel Mutuna and Charles Kajimanga and the subsequent setting up of the tribunal.
Ms Justice Chibesakunda sitting with her Deputy, Florence Mumba, Judges, Marvin Mwanamwambwa, Hildah Chibomba, Gregory Phiri, Munyinda Wanki and Elizabeth Muyovwe advised the State not go ahead with the tribunal due to the nature of the case.
“Although we agree that the President’s decision to appoint a tribunal was not ultra vires, we believe it would be advisable for the tribunal not to proceed due to the nature of issues raised and we make no orders with regards to costs,” she said.
She said that this was a landmark judgment in the history of Zambia claiming that the outcome would instill the sense of responsibility in the judiciary, the court’s jurisdiction as well as the conduct of the profession.
Judge Chibesakunda said the tribunal would have accorded the three judges to give the side of their story as it was not a prosecution.
She said High Court Judge Fulgence Chisanga misdirected herself when she granted the respondents leave to apply for judicial review which also acted as a stay to the proceedings because the President had already appointed the tribunal.
Justice Chibesakunda’s judgment was followed by three dissenting judgments by Judges Mwanamwambwa, Muyovwe and Chibomba who all said that the learned trial judge was on firm ground to stay the proceedings.
The judges argued that Article 98 (3) which the President used to suspend the tribunal could be challenged through a judicial review by anyone who was not agreeable with the action because law was not static.
Commenting on the judgment, Solicitor General Musa Mwenya said it was one of the landmark judgments where judges exercised their independent minds to come up with the judgment.
Mr Mwenya said the judges could not be faulted for coming up with different views on the case.
“This is one case where judges have exercised different independent views in a serious and extremely constitutional matter. In my view the judges have acquitted themselves and they cannot be faulted with the way they have decided on this case,” Mr Mwenya said.
Attorney General Mumba Malila had appealed against Judge Chisanga’s decision to stay proceedings of the tribunal appointed by Mr Sata to probe the alleged misconduct of the three Judges.
Mr Malila had indicated in his notice of appeal to the Supreme Court that the State was dissatisfied against the ruling and as such it was appealing against the whole ruling delivered by Judge Chisanga on May 24, 2012.
The Judges had sought judicial review in respect of the decision made by President Sata on April 30, 2012, to appoint a tribunal to investigate them.
But Ms Justice Chisanga in dismissing the State’s application stated that she did not agree with Mr Mwenya that the investigations to be conducted by the tribunal ought not to be stayed simply because the process was investigative in nature.
“My firm position is that the investigations, being non-criminal in nature, are amenable to be stayed. It would totally defeat the course of justice not to stay the President’s decision,” she had said.
This is a very toothless and spineless judgement I havr ever seen in my entire life. What do these two women think? Do they think this is a bedroom issue or what?
This whole judgement is vague and both sides can claim victory.
Since when was the judiciary exist to advise Government. Thye are supposed to prononce truth!!!!
So what if PF and Sata disregard your advise, does that mean thw tribunal will goo on.
This os useless judgement. I thougt we had a useless Government. Seems we have a useless judiciary too. Shame!!!!
MY BROTHER, MAYBE OUR UNDERSTANDING OF THESE LEGAL PEOPLE IS ELUDING US. ACTUALLY 4 OUT OF 7 JUDGES HAVE SAID PRESIDENT SATA WAS RIGHT. AND THAT MEANS HE CAN GO AHEAD WITH HIS TRIBUNAL. PERIOD. A PIECE OF ADVISE IS NOT A RULING.
It was a deplomatic way of telling Sata he was wrong without embarrassing him and putting his head up for impeachment. We all know that the question leading to the application for judicial review was whether Sata was right in setting up the tribunal without following due process? He clearly didn’t and for that reason his decision was subject to judicial review. However Chibesakunda and her deputy was appointed by Sata for such very reasons and the 7 Judges found themselves in an awkward position ESP those appointed by Sata. Loyalty to the Law or the fiery appointing authority? They played it safe and not rock the boat. If this was the predecessor, we would be talking impeachment motion by dawn.
I respectfully disagree! I don’t think the judgment is “toothless”. The Supreme Court was asked to rule on the High Court ruling: Whether the president went beyond his Constitutional boundaries by suspending and, consequently, appointing a tribunal to probe the three judges. And on that score the Supreme Court says the President acted within his powers. By a vote of 4 to 3, the Executive wins!
Whether we agree with the ruling or not, other Supreme Courts around the world works the same way. For instance in the US you see a lot of split decisions in the Supreme Court. And Americans have learnt to accept and respect their Supreme Court judgments because, above all else, to them DEMOCRACY IS MORE IMPORTANT than pettiness. But I agree with you, the ‘advice’ seems unnecessary.
You are wrong to address them as two women, but there stay at helm of our leagal system ia questionable neither did I expetcet them to go against their master(sata). There is nothing landmark about this ruling. Who knows what was happening outside the courtrooms. If only you can explain what judge Chikopa was waiting for the whole year when the tribunal was suspended- was it not the same ruling/results? What did Guy Scot mean when he said judge Chikopa can not go back because the tribunal is on?
THIS JUDGEMENT IS SOMEWHAT NOT CLEAR. I THOUGHT PEOPLE GO TO COURT TO SEEK ORDERS AND INJUNCTIONS ETC. AS IT IS NOW, THE PRESIDENT CAN CHOOSE TO HEED OR NOT TO HEED THE ADVISE? AN ADVICE IS JUST AN OPINION WHICH IS NOT BINDING. LEGALLY HE WAS RIGHT ACCORDING TO 4 JUDGES OUT OF 7.
AND I THINK WETHER THE PRESIDENT HEEDS THE ADVICE OR NOT, A PRECEDENCE HAS ALREADY BEEN SET BY THE SUPREME COURT. AND MAYBE IN ORDER NOT TO APPEAR AS BEING VENGEFUL TOWARDS THOSE THREE JUDGES, THE PRESIDENT SHOULD NOT GO AHEAD WITH THE TRIBUNAL BUT GIVE WAY TO A JUDICIAL REVIEW. AND WE HOPE SUCH A JUDICIAL REVIEW WILL NOT OVERLY PROTECT ITS KIND.
Of the 4 judges 2 are Acting chief justice and an acting deputy chief justice so you can tell were their allegiance lies, that is to the appointing powers and not the law and if anything it was 2 against 3 but the 2 acting boses decided to side with the losers. And why are they giving advise to the presido which they know very well he won’t agree to since he already has a tribunal in place.
Typing in uppercase does not emphasise whatever point you are trying to make.
So the vote was 4-3 in favour! It is a victory no matter how narrow the margin. We need to clean the judiciary and remove the rotten apples. The tribunal should go on otherwise the judges will continue to protect their own, which is wrong. Judges should not be treated as if they are above the law when they commit a crime or are involved in corruption.
We need our K14bn period…..so even if today membe and nchito win their day of reckoning is coming. It is unbelievable that judges can be tried because of these two and vuvuzelas supporting such a stupid move. Why cant they appeal against Mutunas judgement instead of scandalising the judges….all they do is win cases by manipulation. we are tired of these *****s
I’m sure these people are working under immense pressure. They are clearly intimidated hence the failure to state what the law says instead they have given an opinion than a ruling. It seems they did not want to shame the ukwa man completely especially that his aunt is the head of the judiciary and acting forever. No wonder she tried to side with her mad relative. This so called judiciary is rotten under Chibesa Kunda because she is not acting in a professional capacity but on family lines. Shame on Sata and his many shameless nepotistic family forest. All institutions are caged on family and Bemba lines.
why do you always seek recourse to tribalism in your argumentation? If you were a level headed person, you would be so ashamed at your pettiness. Justice Chibesakunda was appointed to act as chief justice credibly. She has all the necessary credentials and experience that befits her office. For your own information, she is my aunt and we are Bemba from chinsali. MCS is a Bisa, not Bemba, and he comes from Mpika. There are no familial ties between Sata and Chibesakunda. Get your facts right you dunderhead who is locked up in the ignorance of your triabalism and can hardly sustain a reasonable argument outsider the blinkers of tribalism.
@Adrian no matter how you choose to distance yourself – the relationship is very clear. They’re all come from together, if you remember your history lessons! No denying that!
Aba bamayo Ba Chibesakunda is wise my goodness.
I only doubt on that Florence Mumba, but Ba Lombe bena is great mwee. Unfortunately she has to Wynter Kabwa.
She has all the necessary credentials and experience that befits her office except her age which does not allow her to be Chief Justice.
I will sue someone with this “moderation”. So annoying fofackisake, I can’t be free even to these uncivilized kids?
What makes these Judges have the courage to preside over corruption cases and pronounce judgements when it comes to them, they are trying to shy away. My position is the advice should be acknowledged but not taken and go on with the tribunal. No one is above the law and as such Judges need to conduct thmeselves in a manner that is exemplary. many lives have been lost due to the misconduct of the so called learned Judges. Aluta Continua with the Tribunal.
this so called advice is totally nonsense. how can we have proper ruling with chief justice a relative of Sata. that corrupts the whole judicial system.
Like us having our mother as judge to make judgement. dam! how biased can it be?
shame people support such corruption of the judicial system. they dont know that its the satas and mmembes & Co who benefit and not even their so-called supporters. they just keep making the supporters get high making by them delusional & imagin that they shall give them jobs,cheap fuel etc. Bufi!
Lawyers and Judges are wasting our time. In Zambia Law is number one economic activity. Please let’s concentrate on real development, build roads, build the country, build farms, build schools, build anything that that fosters economic prosperity – period. Learn from China.
Lawyers and Judges are wasting our time. In Zambia Law is number one economic activity. Please let’s concentrate on real development, build roads, build the country, build farms, build schools, build anything that that fosters economic prosperity. Learn from China.
Now the Judiciary has become an advisory board.
@Phiri anabwela. Which entire life, obviously a lifeless one! A judgement has been rendered like, it or not. In simple terms the presidency made no mistake in doing what it did. Period. What else do you, lifeless one, want?
this is not a judgement. it’s an opinion as opposed to a ruling and it’s vague in any case.
“Supreme Court ‘advises’…..” My foot! This is laughable! And you give ‘advice’ to a monkey in a banana plantation not to eat the plantains. This kind of mediocrity is absolutely amazing! Highest department of Judiciary – mediocre. Highest department of the Legislature – mediocre. Highest department of the Executive – mediocre. If Zambia isn’t under siege, then you wouldn’t want to tell me what this is.
shut up! All you want are negative sentiments against mcs. Why do you lumpens wish always pf, bad?
Dogs on ZWD reported this judgement in their usual cowdung style.
That is why I dont’ take ZWD seriously they seem to be childish , immature and not objective at all. I had to wait for a correct version here. In fact they reported that the supreme court threw the case away and chikopa was going home. Now they have deleted that story and changed the version. Anybody serious can’t rely on their wanna be POST Newspaper replacement attitude
also try the Zambia Reports. They are also professional
clearly, the lumpen happens to be MCS.
The pf cancer of Munkombwe has infected the judiciary. Apusuka impeachment ngoshe
COME TO THINK OF IT. THE JUDGES HAVE ACTUALLY MADE A RULING. THE QUESTION THEY WERE ANSWERING WAS: “DID THE PRESIDENT COMMIT AN ERROR WHEN HE CONSTITUTED THE TRIBUNAL?” 4 JUDGES SAID HE WAS RIGHT WHILE 3 JUDGES SAID HE WAS WRONG. 4 AGAINST 3 MEANS THE RULING BY THE 4 CARRIES THE DAY. PERIOD. THE ADVISE THAT COMES AFTERWARDS CAN BE TAKEN OR NOT TAKEN. AND ACTUALLY THE COURTS CAN GIVE ADVISE ALSO. MIND YOU THIS IS A HISTORIC JUDGEMENT WHICH PUTS THE JUDGES ON THE SPOT. WE LEAVE IT TO THE PRESIDENT TO DECIDE.
U fool its arrogant to write in capital letters! You are cadre so no objectivity in your stupid utterances.
Out of four Judge’s is related to the person representing the State and it has never been confirmed by the Parliament. The question I am asking and not getting answer: What happened to two fundamental principles of Natural justice?
The first, “audi alteram partem”, relates to the right to be heard; the second “nemo debet esse judex in propria sua causa” or “nemo judex in re sua” establishes the right to an unbiased tribunal.
Stop lying only 4 Judges actually spoke 1 against 3 , the Acting Chief Justice was for while the 3 were against the other two abstained .
From today, a dictatorship has been created in Zambia by madam Chibesa and her clan, which says whatever the president does is correct, as long no one has challenged b4 the courts. I mean, she says ‘the H court misdirected itself by staying the tribunal bcoz it had already been constituted’. The fact is the Pres was wrong to setup the tribunal without following procedure – that’s law
The 3 judges dat were suspended are NOT saying they can’t b suspended. But simply that the law/constitution be followed in the process of suspending. Y can’t Sata do that? But no, this Sata wants to control the judiciary, parliament and the executive, if u ask me there is no better way than this, of turning a functioning democracy into a dictatorship. And the acting CJ, Sata’s auntie is aiding and abeiting, that is the reason she can’t rule but merely giv a fake advice with no basis in law. History will judge harshly madam CJ
Ho Ho Ho Ho Ho Tell the kaponya’s!!! You don’t run a govt like a Kantemba!!!!!!!
so if the supreme court said the president was wrong. What would have happened?
Lets see how brave the executive is!! The High Court Judge WAS ON FIRM GROUND!!!!
The Suspensions & Setting up of the TRIBUNAL WAS NEVER ON FIRM GROUND & CAN & WILL BE CHALLENGED – As per constitution – WITHOUT RECOMMENDATION FOR BOTH FROM CHIEF JUSTICE – the process WAS ULTRA VIRES, however the Acting CJ has been VERY KIND NOT TO PUT IT SO BLUNTLY!!!! As such CHIKOPA’S stay & the Billions we pay him WILL ONE DAY BE FODDER FOR an ABUSE OF OFFICE CASE!!!!
Thank you ba lusaka times. The Dogs have even removed their stupid and misleadi.g version after you posted this professionally done report. Their is completely nothing wrong with this judgement. That we had 3 judges disenting is sure proof that nobody is tempering with the judiciary in their discharge of duties. Zambia has always been above that nonsese. The advise is also within the duties of the judges. There is nothing wrong. That part of the judgement is not binding on the President. The Principal advisor of govt and the President on legal matters is the Attorney General and this was his appeal. His advise to the President on the matter is a therefore already known. THE TRIBUNAL GOES AHEAD. The govt has already spent money on the Tribunal so we can as well go ahead and conclude.
ugly face with ugly manners..fyolaaaaaaaaaaaa1
I also feel the tribunal should not proceed as stated – what with the compromised position of the Chair, the issues surrounding the appointment of some of the judges that voted in favour of the President, etc? This can turn out dirtier if pursued further. True, from the case itself, everyone will check their behaviour on and off the bench, if there is need to. Good compromise !
Guys, please learn to digest matters before speaking stupidly. There were four judges on the supreme court bench who delivered this judgment. Sata’s cousin, as was expected, stayed on the fence, and quote: “Although we agree that the President’s decision to appoint a tribunal was not ultra vires, we believe it would be advisable for the tribunal not to proceed due to the nature of issues raised and we make no orders with regards to costs,” she said.” This shameful Chibesakunda-Malumo’s ruling was countered like this: “Justice Chibesakunda’s judgment was followed by three dissenting judgments by Judges Mwanamwambwa, Muyovwe and Chibomba who all said that the learned trial judge was on firm ground to stay the proceedings.”
So, it’s 3-1, the state lost the appeal. Period!
Fr Frank Bwalya was 100% right when he said sata has lost it and turns to fellow fossils in an age of advancement. Modernization will be embedded with this Jurassic escapee in the picture.
What really is genetically wrong with these Chibesakundas? The only beautiful one was Mary Kankasa. Nkandu Luo and this Lombe Chibesakund-Malumo aunt of hers are soo aesthetically repugnant that they lend tremendous credence to the belief of man having descended from ba Kolwe!
Spot on bro. What you describe of these is reflected in this judgement. Repugnant.
Where is the culture of insulting emanating from in this country? It so surprising that each time you open a social site, people insult authority with impunity without any recourse. I wonder what happened to the Red bricked House. It’s high time the RBH was resurrected and this nonsense curtailed. It is actually true that Dictators are made and not born. Freedom is good but when abused its really bad. Ba Shushushu mulikwi?
WITH ITS TAIL BETWEEN ITS LEGS, THE ZWD HAS BEEN FORCED TO EAT ITS OWN EXCREMENT.
LT :This is very proffesional and objective reporting! Keep it up!
We want a complete ruling not advice imwe ma Judges… Advising who?? So wat next? Very unclear situation here…. U say ur the so called Judges buti muletalikana mweka mweka why??? These judgements are just opinions then!!!!!!!!!!!
I was in court when the judgement was being delivered and i was highly impressed by Judge MWANAMWAMBA, JUDGE CHIBOMBA AND MUYOVWE these three are great bcoz they told SATA in his face that he is a dictator who should be corrected when he goes wrong. MADAM CHIBOMBA said in her dismissing the appeal there is no way we can entertain this appeal bcoz the President when suspending the three judges he only depended from the information given by Mutembo and Fred who have been found guilty in high court in 14billion kwacha case and have a case of appeal in supreme court.
CLEARLY YOU ONLY GET IMPRESSED WITH ANYTHING THAT DISAGREES WITH SATA REGARDLESS OF THE REASONS ADVANCED.
They disagreed with him, want him to withdraw and look like he has decided on his own. knowing Ukwa he will not and will go ahead with his Kangaroo tribinal!
@Adrian, I doubt you know what you are talking about. Chibesakundas are Bisa from Chief Chibesakuda (branch off on mulanga road pa Matumbo) and not Bemba. Chinsali District has 3 tribes namely Bemba, Bisa and Namwanga). I doubt if you know your tribe.
As for Sata his ancestry is unknown, at least from the Father’s line.
@Adrian, I doubt you know what you are talking about. Chibesakundas are Bisa from Chief Chibesakuda (branch off on mulanga road pa Matumbo) and not Bemba. Chinsali District has 3 tribes namely Bemba, Bisa and Namwanga). I doubt if you know your tribe.
As for Sata his ancestry is unknown, at least from the Father’s line. Ok
Am impressed with the Judiciary I must admit. It is evident that the government has lost but there is an attempt of pillowing the bullet!
Please can we have some article on this from the learned lawyers.
The judgement assertion that “….it would totally defeat the course of justice not to stay the president’s decision” is a clear embarassment to president Sata and his government, indicating that Mr Sata is raw in legal matters concerning governance of the country or has incompetent legal advisors. We said it before that the mere fact that Sata opted to bring in foreign judge Chikopa to preside over Zambian corruption issues was another clear indication of lack of faith in the Zambian judges and an insult to the legal profession in the nation. In this case like a boomerang has come back not only to embarass him legally but that in his wild belief that he can be above the law as shown in corruption cases with his own ministers not to be investigated without his permission, here its…
Mmembee 10 DBZ nil. Viva Mmembee and nchito.
the judges that have the final say in matters of law. Mr sata can posture to be above the law but he can not be judge at the same time. This too, can not be a landmark judgement in the history of Zambia because its genesis was on frivolous ground withou much consideration of legal consequences Mr Sata went to cramp on judges because he was president of Zambia and not what guidance the law provided for him. We hope our next president will not have power beyond what his/her intelligence can manage.
It is Animal farm others you advise comon man you proscute you *****s. What a Christian nation!
The way forward is very clear. Those who are friends with the President can go directly to him for annoying judges to be suspended while the rest of us go to the Judicial complaints authority. This is the new donch kubeba democacy.
From now on, Sata should be careful with this Mmembe guy (gay). This time apulumuka next time he will make a senseless decision which will result in his loss of office through impeachment. Pasopo!
Guys, who is Sata’s legal advisor at state house?
Where is the culture of insulting emanating from in this country? It so surprising that each time you open a social site, people insult authority with impunity without any recourse. I wonder what happened to the Red bricked House. It’s high time the RBH was resurrected and this nonsense curtailed. It is actually true that Dictators are made and not born. Freedom is good but when abused its really bad. Ba Shushushu mulikwi?
They should start by killing your mother and father so that you get a good perspective of their good work. Hurray Red brick!
TELL ME HOW THE HELL WILL THE STATE DEAL WITH CORRUPT JUDGES IF THE SUPREME COURT WILL ADVISE NOT TO PROCEED WITH THE TRIBUNAL?
I HAVE NO CONFIDENCE IN OUR JUDICIAL SYSTEM ITS ALL USELESS.
AM DISAPPOINTED
Have you been inside of a class room sir/madam? if so, could you please read the Zambian of constitution, you will b surprised how simple this how debacle would have been avoided – had the pres been able to read and follow the constitution. People like you and indeed ur president are an embarrassment to the good people of Zambia. God bless Zambia!!
ANY ONE WITH THE TEXT OF THE JUDGEMENT? LT PLEASE POST IT ONLINE. I WOULD LIKE TO READ IT FOR MYSELF.
Not suprised though at the judgement. The clause in the constitution is too explicit and gives express powers to the president. Procedural arguments simply get trampled by express powers given to the President.
M’membe kawalala should just PAY THE 14 BN plus interest kwasila…….
The judges should’nt have bothered turning up because Guy Scott had already delivered this judgement in parliament .He he has never cited for contempt of court which seriously indicates that this judgement was a white wash and political.A commission of enquiry should be set investigate why he(scott) said the tribunal was on .
The judges should’nt have bothered turning up because Guy Scott had already delivered this judgement in parliament .He he has never cited for contempt of court which seriously indicates that this judgement was a white wash and political.A commission of enquiry should be set to investigate why he(scott) said the tribunal was on before the judgemnt day.
THIS WOMAN IS A SHAME TO JUSTICE AND FAIRNESS THAT COME WITH JUDICIARY .SURELY IS IT DIFFICULT TO MAKE THINGS RIGHT THAT THE PRESIDENT WAS OUT OF HIS WAY WHEN HE DID THIS ACT.WHY IS SHE DRAGGING HER LEGS WHEN IT COMES SILVYIA MASEBO ISSUE,HA ,.
U DEMONS LEARN TO DEBATE WITHOUT INSULTS. MULIFINTU FYAMUBUCHENDE?WHAT A BAD CULTURE?ESPECIALLY FI UPND .U’RE YET 2 CRY .DAT IN ITSELF IS UNDEMOCRATIC NO WONDER U’RE CAUSING BY ELECTIONS.DIS SHOWS DAT IT IS NOT ABOUT SERVICE BT ABOUT YO BELLIES.
This article is wrongly captured & very misleading. The reporter missed fundamentals in that judgment. There were seven judges on the bench. Four where in support the tribunal goes ahead while three where in opposition. Hence the ruling was and is in favour of the tribunal.
Dot mislead your readers plz
I think this decision is heavily tainted with a lack of ‘spine’ to be firm, because of political considerations or ramifications. Admittedly, Supreme courts do make split decisions. But the majority decision needs to be clear and certain. This decision says on one hand, that the President was right in arriving at deciding that a tribunal was needed to probe the judges in question, but on the other feels the tribunal should not go ahead with its proceedings. What a load of bull! The supreme court majority decision indicates a fear to state that the tribunal was not appointed in good faith and yet wants to please the President by stating that he was within his powers to appoint it. You appoint the tribunal so it works or should’t be appointed in the first place. What precedent has been…
#52 Real Zambian, you are right on.
It’s a worry(tribal blogging is primitive blogging) i agree with you my dear friend you can not tell the president that you were wrong. in this case the state lost the case. mind you the president is the appointing authority and both florence and chibesakunda are both bemba so they were just telling him that although you are a bemba cap, you made a mistake thanks you should consulted the judges before you act twalamona hahahahahah airlelo airlelo
mind you for the past 48 years zambia has never been ruled by indiginous zambia all those that have been president have their fathers come from the neighbouring countries such malawi, zaire and tanzania less may be mwanawasa. in 2016 we want people who understand our zambian constitution not with both zambia and abroad you be losing the cases in court
Personally, I find the Ruling of the Bench of the Supreme Court of Zambia absolutely irrelevant as to the Cause to which was supposed to Rule.
Instead, the said Ruling sets two extremely dangerous legal precedents.
Firstly, “de facto” abolishes universally accepted principles of natural justice which is technical terminology for the rule against bias (nemo iudex in causa sua) and the right to a fair hearing (audi alteram partem). While the term natural justice is often retained as a general concept, it has largely been replaced and extended by the more general “duty to act fairly”.