THE State has submitted that the action by Law Association of Zambia (LAZ) to press for the removal of acting Chief Justice Lombe Chibesakunda on grounds that her stay in office is illegal must be dismissed because it is irregular and an abuse of the court process.
This is in a matter in which Ms Chibesakunda and Attorney general Mumba Malila had been dragged to court by LAZ and wants the court to order that the re-appointment of Ms Justice Chibesakunda as Supreme Court Judge in May 2012 was illegal, null and void.
In an affidavit in support of summons to dismiss the action, deputy Chief State Advocate Joe Simachela in the office of the attorney general and in conduct of the matter urged the court not to entertain the action because LAZ commenced this matter by way of writ of summons contrary to the Laws of Zambia.
“That the commencement of this action by way of writ of summons by the plaintiff is irregular and an abuse of the process of the court,” said Mr Simachela.
Mr Simachela said according to the Law, matters of this nature were supposed to be taken to court by way of Judicial Review and not through the writ of summons as was done by the plaintiff which amounted to abuse of the court process.
Mr Simachela said where matters exclusively involved the enforcement or interpretation of Statutory and Constitutional duties, they fell within the realm of public law and must be challenged or enforced by an application for Judicial Review.
LAZ was seeking an issuance of orders whose effect was prohibitive and mandatory in nature because the plaintiff’s claims lie in the realm of public law which was applied if the defendant failed to abide by the Statutory and Constitutional duties and provisions.
In their Statement of claim, the plaintiffs wants a declaration that the President of Zambia may exercise the powers contained in Article 98 (1) (b) of the Constitution of the Republic of Zambia, and the Constitution of Zambia Act Chapter 1 of the Laws of Zambia, only once with respect to any one Judge of the High Court or Supreme.
The plaintiff also wanted an order that the President may not appoint a person who has attained and exceeded the age of 65 years to the office of a Judge of the High Court, Supreme Court, Deputy Chief Justice or Chief Justice.
LAZ further wants an order that Ms Justice Chibesakunda having attained and exceeded the age of 65, does not qualify to hold the substantive office of Chief Justice of Zambia.
LAZ which is represented by eight law firms want another declaration that the Constitution may not be used to re-appoint a Judge of the High Court or Supreme Court to a position other than the position that the said judge was ratified for upon first appointment.
LAZ are just a useless band of show-offs who have been asleep and have now found themselves beaten clean and embarassingly by the Cartel.
What a disappointment.
As ka Mushota would say; Thanks.
Article 93 of the Zambian Constitution.
(1) The Chief Justice and the Deputy Chief Justice shall, subject to ratification by the National Assembly, be appointed by the President.
(3) If the office of Chief Justice is vacant or if the Chief Justice is on leave or is for any reason unable to perform the functions of that office, then, until a person has been appointed to, and has assumed the functions of, that office, or until the person holding that office has resumed those functions, as the case may be, the President may appoint the Deputy Chief Justice or a Supreme Court judge to perform such functions.
(6) A person may act as Chief Justice, Deputy Chief Justice or Supreme Court judge notwithstanding that he has attained the age prescribed by Article 98.
Article 98
98. (1) Subject to the provisions of this Article, a person holding the office of a judge of the Supreme Court or the office of a judge of the High Court shall vacate that office on attaining the age of sixty-five years:
Provided that the President
(a) may permit a judge of the High Court in accordance with the advice of the Judicial Service Commission, or a judge of the Supreme Court, who has attained that age to continue in office for such period as may be necessary to enable him to deliver judgement or to do any other thing in relation to proceedings that were commenced before him before he attained that age;
Article 98
(b) may appoint a judge of the High Court in accordance with the advice of the Judicial Service Commission or a judge of the Supreme Court, who has attained the age of sixty-five years, for such further period, not exceeding seven years, as the President may determine.
This Chibesa something has nothing to do in life. Why nor retire honorarily as you learned friends are advising. Why embarrass yourself to go on record as a CJ whose stay in office was contested by the the LAZ. Shameless woman. You can establish your own law firm if you don’t have any and still continue earning a living. what are you waiting for? To rig elections in 2016? GO HOME OLD GRANDMOTHER WITH RESPECT>
Article 98
(6) A person may act as Chief Justice, Deputy Chief Justice or Supreme Court judge notwithstanding that he has attained the age prescribed by Article 98.
and I thought LAZ was composed of serious learned men and women, serious to know when to take matter to court thru writ of summons and when to apply for Judicial review…………twasebana bane………………
to thesame school they all went
Learned “pacifier mwale”, are you aware that JR has time limit for filing?
who is abusing it..?its the state bamambala imwe..
“Educated Fools” on each others throats as they mint gold.
What a profession!
Defenders of lies and liars
Twisters of the truth to earn a living….
you are so very right.
liars at each others throat.
by the way ba LT give a comprehensive list of the two camps fighting each other so that we can know those who are for and those against.
this promises to be a very good ‘true than fiction’ episode.
awe these issues should be sorted out soonest they are making our PF govt un popular,what do these pipo talk about in their cabinat and mcc meetings kanshi?
1. CJ
2.Barotseland
3.Chitimukulu
4.Kabimba/Gbm
5.K14bn Zambian airways
6.By elections
7.Subsidies
8.PAYE (overburdening a few workers)
9.Size of cabinat/deputy minsters
10.Freedom of assembly/speech
11.Constitution making
12.Corruption/nepotism allegations
13.Unplanned capital projects
14.Mealie meal prices
15.ETC
Tribalism
The guys sit around the table to listen to one chap cracking silly jokes. There are no cabinet meetings in OF take it from me.
And if LAZ was using JR, State was going to object that is out of time!!!
State, please let the due process of law continue. Why are you afraid?
What do u mean. I cannot understand the whole dog fight going on. Wen u say out of time. Please use the simplest amashiwi so I can comprehend.
Judicial Review is a two-stage process.
Application for leave must be made promptly (within three months) and the Applicant must have “sufficient interest” and “sufficiently arguable case”to merit “substantive hearing”. If the Judge grants the leave, only then the Application will be heard in the open Court.
Usually, if the State is Respondent, it always objects on the grounds of either time limit, in the interest of “good governance” or, to ad insult to the injury, in the interest of “People”.
In plain English, current “State”does identify it self not with the Republic of Zambia (that is to say “People”) but with the political party in Government.
What would happen if Mazoka was come back from death and knock @ the UPND secretariat??? Just asking boy!