Understanding the suspension and imminent removal of the three ConCourt judges

Understanding the suspension and imminent removal of the three ConCourt judges

On 23 September 2024, President Hakainde Hichilema, acting on the recommendation of the Judicial Complaints Commission, suspended three judges of Zambia’s constitutional court namely Anne Sitali, Mungeni Mulenga, and Palan Mulonda. The three are accused of gross misconduct and incompetence emanating from how they handled a legal challenge that Hichilema had brought against the election of then President Edgar Lungu in 2016.

To be clear, the suspension and removal of a judge is provided for in Articles 143 and 144 of Zambia’s constitution, as shown below.

143. A judge shall be removed from office on the following grounds:

(a) a mental or physical disability that makes the judge incapable of performing judicial functions;

(b) incompetence;

(c) gross misconduct; or (d) bankruptcy.

144. (1) The removal of a judge may be initiated by the Judicial Complaints Commission or by a complaint made to the Judicial Complaints Commission, based on the grounds specified in Article 143.

(2) The Judicial Complaints Commission shall, where it decides that a prima facie case has been established against a judge, submit a report to the President.

(3) The President shall, within seven days from the date of receiving the report, submitted in accordance with clause (2), suspend the judge from office and inform the Judicial Complaints Commission of the suspension.

(4) The Judicial Complaints Commission shall, within thirty days of the judge being suspended from office, in accordance with clause (3)—

(a) hear the matter against the judge on the grounds specified in Article 143 (b), (c) and (d); or

(b) constitute a medical board, in consultation with the body responsible for regulating health practitioners, to inquire into the matter against the judge based on the ground specified in Article 143(a).

(5) Where the Judicial Complaints Commission decides that an allegation based on a ground specified in Article 143(b), (c) and (d) is —

(a) not substantiated, the Judicial Complaints Commission shall recommend, to the President, the revocation of the judge’s suspension and the President shall immediately revoke the suspension; or

(b) substantiated, the Judicial Complaints Commission shall recommend, to the President, the removal of the judge from office and the President shall immediately remove the judge from office.

(6) The proceedings under clause (4) (a) shall be held in camera and the judge is entitled to appear, be heard and be represented by a legal practitioner or other person chosen by the judge.

In my view, the suspension of the three judges is motivated by four partisan considerations on the part of President Hichilema.

The first is revenge. The three judges who have been suspended are the ones who ruled against Hichilema in the 2016 petition that he brought against the re-election of then President Lungu following that year’s presidential election. At the time, Hichilema was righty aggrieved that the three judges reversed under very strange circumstances the judgement that the full bench of five justices had made a few days earlier and, in so doing, terminated the hearing of his petition on account of what they called lapse of time. Disappointed with their conduct, Hichilema accused the three judges who threw out his petition of “being corrupt and under President Edgar Lungu’s control”. For Hichilema’s accusations, visit: diggers.news/local/2018/08/…

Their suspension constitutes a form of payback punishment for their conduct over that 2016 case. It is important to note that the three judges have been tried by the Judicial Complaints Commission (JCC) over the same case at least eight times since 2016 prior to the latest case that has been filed by Moses Kalonde, which is the ninth one. The first person who petitioned the JCC to have not just the trio but the whole bench that decided the 2016 election petition removed was Peter Sinkamba in 2016. After hearing both parties, the JCC chaired by retired justice Christopher Mushabati ruled in October 2017 that the conduct of the five judges did not amount to gross misconduct or incompetence. To read the ruling of the JCC,

The second person who petitioned the JCC over the same matter was Douglas Syakalima, now a minister in Hichilema’s cabinet. The third petitioners were Kaimfa Chanda and 11 others. The fourth was Dante Saunders. The fifth was Charles Longwe. The six and seventh petitions were filed by Joseph Busenga. The eighth petitioners were Emmanuel Mtonga and Alfred Mbewe. All these eight cases filed over the last eight years returned the same answer from the JCC: that what the judges including the three did was not gross misconduct or incompetence.

Now what is interesting is that the entire composition and leadership of the five-member JCC changed after the election of Hichilema in 2021. Vincent Malambo, for instance, became the chairperson of the JCC after President Hichilema appointed him and other members to the body. Malambo was one of the lawyers who represented Hichilema in the 2016 election petition. He also represented one of the five judges when Sinkamba dragged them to the JCC in the aftermath of Hichilema’s failed petition. Now serving as chair of the JCC, Malambo and his initial team who included William Nyirenda, Irene Kunda, Andrew Dean Mwansa and Chad Muleza refused to reopen the case against the judges on the ground that the matter had already been decided and was closed.

The fact that nearly all the petitioners who have sought the removal of the three judges after Sinkamba’s unsuccessful attempt are UPND associates suggests that this was a partisan exercise meant to exact revenge on the judges for dismissing Hichilema’s petition without hearing it. I say three judges because after the retirement of justice Hildah Chibomba, the petitioners who followed Sinkamba’s effort did not include justice Margaret Munalula in their complaints probably because she had ruled in favour of Hichilema during the 2016 election matter and may therefore have been seen as predisposed towards the current president. The UPND-aligned petitioners wanted only the three judges to be suspended and removed. Malambo and team however stood their ground and refused to reopen the matter.

Things took a different direction about three months or so ago when two vacancies arose on the JCC, offering Hichilema an opportunity to appoint replacements in the form of Eva Jhala and Cephas Katongo who were sworn in as Judicial Complaints commissioners on 29 June this year. Soon after their appointment, another person named Moses Kalonde was found to petition the JCC for the ninth time to have the three judges removed. Yesterday, 23 September, the three judges were summoned to the JCC for the very first time under Kalonde’s complaint. Their lawyer who had also represented the trio in 2016 during the Sinkamba case, raised a preliminary issue around the point that this matter had already been decided several times.

Of particular importance was that Malambo recused himself from yesterday’s proceedings. Chad Muleza was also absent. Only the new commissioners, Katongo and Jhala, were present alongside retired judge Prisca Nyambe. Nyambe, Katongo and Jhala moved to dismiss the preliminary issue raised by the lawyer of the three judges, found a prima facie case against three judges, sent a report to President Hichilema recommending the suspension of the three judges, and set Wednesday this week, which is tomorrow, as the date on which they shall hear and determine the main matter.

All this drama I have outlined above took place yesterday, as if the reconstituted JCC is in a hurry to find the three judges guilty of whatever charges levelled against them. (Following the backlash this morning, the JCC has now postponed the hearing from tomorrow to next week Monday, 30 September) Such an outcome will represent the completion of revenge for Hichilema who will only be too happy to announce the dismissal of the three judges on receipt of a JCC report that would recommend their removal. If one carefully looks at how Hichilema has treated those who wronged him in opposition such as Mumbi Phiri, it is easy to realise that revenge is a central element of his leadership.

The second motivation for the suspension of the three judges appears to be the eligibility case involving Edgar Lungu, whom Hichilema is determined to exclude from running in the 2026 election based on the real fear that the former president might defeat him. I have discussed this issue in greater detail elsewhere when showing how Hichilema is using lawfare to undermine political competition ahead of the next general elelction. See here for instance: mg.co.za/thought-leader…

Suffice to say that the eligibility case was brought by a UPND activist soon after Lungu returned to active politics in October 2023. The matter is coming up for hearing and possible determination by the full bench of the Concourt on 26 September, which is Thursday this week. At present, the ConCourt has 11 judges, four of whom were appointed by Hichilema. The remaining seven were all appointed by Lungu and have previously ruled, including just before the 2021 election when I sued him, that Lungu is eligible to run for office. (To understand why I sued Lungu, in 2021 and hired John Sangwa to represent me, click here: diggers.news/local/2021/06/…)

Now I have problems with the judgement that was passed by the full bench of the ConCourt in 2021 and have previously made my reasons public. However, unless it is overturned, the 2021 judgement of the court is precedent and makes Lungu eligible to run in the 2026 election as a result. The four judges that Hichilema has appointed, plus justice Margaret Munalula, who ruled in Hichilema’s favour during the 2016 election petition, appear to be the ones the President is counting on to not only overturn the 2021 judgement but also deliver a favourable verdict that would exclude his main rival from the 2026 election.

By suspending the three judges who are all likely to rule that Lungu is eligible to run again, as per their three previous rulings on the matter, Hichilema is strategically reducing the total number of judges on the ConCourt bench to 8. This 8 would consist of a majority five that is likely to rule against Lungu and the remaining three judges who, unless they abandon their 2021 judgement, will constitute a minority. As stated, Lungu’s eligibility case is coming up on 26 September. The speed with which the matter of the three judges is being decided indicates that the aim of suspending the justices is to prevent them taking part in the eligibility case. This way, the ConCourt would be left with majority judges whom the president probably sees as predisposed towards him and who will rule that Lungu is not eligible to run again. It is an extremely dangerous political game that Hichilema is playing over this desire to exclude Lungu.

The third motivation behind the suspension and imminent removal of the three judges is the desire to rig the ConCourt in favour of the president in the event of a disputed 2026 election. The constitutional court has the final say on all matters relating to the interpretation of Zambia’s Constitution, including the election of the president. For instance, in the event that an election petition is filed against the president-elect after elections, the ConCourt has the legal mandate to hear the matter within 14 days of its filing and can dismiss the petition or call for a fresh poll within 30 days. The decision of the ConCourt on any post-election case brought before it is final.

In anticipation of a petition against his possible re-election, Hichilema may have reasoned that removing the three judges, in the long term, allows him to pack the court with majority judges whom he sees as more likely to do his bidding such as endorsing his re-election, even if secured fraudulently. And if a sitting president is able to both rig an election and control the Constitutional Court, it is hard to see how he or she can ever be voted out of office. If the third motivation provides short term relief – the exclusion of Lungu – this third one is a fallback option meant to give him political insurance if he must rig his way back to power in 2026.

The fourth and final motivation is to send a warning to other judges about what awaits them should they dare to rule against Hichilema. Already, there seems to be considerable fear among some judges to rule against the executive in political cases where Hichilema has considerable interest especially matters involving members of the opposition. One must simply look at how the judiciary conducted itself in cases involving Miles Sampa versus the PF substantive leadership or how judges have behaved over the two PF MPs Nickson Chilangwa and Ronald Chitotela in relation to granting them bail pending the determination of their appeal cases.

Several judges have had to recuse themselves from hearing the two convicted MPs’ bail applications over what increasingly appears to be judicial deference to the executive. It is as if the aim is to keep Chilangwa and Chitotela in detention and use their prolonged absence from parliament to induce the Speaker to declare their seats vacant and conduct fresh elections which the UPND hopes to steal the same way they stole the Kwacha and Kabushi parliamentary by-elections.

It is like some judges are now afraid to take up cases whose facts, when married to the law, may require them to rule against the establishment. Other judges are now doing nothing as they are being allocated no cases for fear that they may rule in favour of the opposition. The suspension of the three judges will likely intimidate those remaining into submission. The message to the remaining judges on the bench is simple: behave correctly by doing the bidding of the president, or risk being kicked out by the reconstituted JCC!

I should end by saying that the unfolding developments around the suspension and removal of the three judges underscores two points. The first point is the need to create a competitive, merit-based, and transparent system of appointing judges. This should involve adverts of vacancies and interviews before a properly reconstituted Judicial Service Commission (JSC) which should include the Chief Justice. At the moment, everything is done in secrecy and in a manner that overly concentrates power in the presidency.

Judges are currently appointed by the president on the recommendation of the Judicial Service Commission, but members of this body are themselves appointed by the president subject to ratification by a generally pliant parliament through a simple majority. No one knows the criteria that the JSC uses to identify judges. People just wake up to news that so and so has been appointed to this or that court without any knowledge of how they were identified. What is needed is to create legislation that will provide for a very clear process of appointing judges in a transparent, competitive, and open manner.

Let there be adverts for instance calling for interested candidates to apply for positions in the judiciary so that anyone interested and meeting the outlined requisite qualifications is free to apply and become a judge. The JSC, whose members should not be appointed by the president, will then hold open and even televised interviews with the shortlisted candidates. Members of the public should be free to give evidence-driven testimony against any shortlisted person whom they think lacks the integrity to serve as a judge.

This manner of proceeding would ensure that those who end up as judges on our courts do so not because they know someone in the corridors of power but are qualified, competent, and impartial individuals with demonstrable experience, intimate knowledge and understanding of the law and who possess proven levels of integrity. In my view, none of the three judges who have been suspended should have ended up on the ConCourt in the first place. In fact, I have previously called for the removal of all judges on the ConCourt including the three under discussion for reasons that I have explained in greater detail elsewhere. (To see an example of my previous call for the removal of the judges, click here: diggers.news/local/2020/03/…) But like Hichilema’s recent appointees to the judiciary, they all ended up as judges precisely because we lack a transparent and open mechanism of appointing judges.

I had hoped that Hichilema would change this undesirable status quo where judges are appointed in a secretive way that does not foster transparency . After all, he had promised to create such a mechanism when he was in opposition. But after winning power, the president has reneged on his campaign promise, as he has done on so many others, and has used the same rotten system that his predecessors relied upon to appoint judges. The problem, in my view, is not just the lack of capacity in the individuals appointed to these roles; it is the inadequacies of a system that allows such individuals as the three we are discussing – and the many others appointed by Hichilema himself since he became president – to end up as judges in the first place. Left unaddressed, the current system risks creating a vicious cycle or scenario where the next president abuses the JCC the same way Hichilema is doing to remove the judges who were appointed by their predecessors.

The second point is the need to create an open and transparent system of removing judges from office. The current system is too secretive and the ongoing campaign to remove the three judges illustrates this point. The public do not know why they are being removed. Neither have they seen the report that the JCC sent to Hichilema yesterday that served as the basis for his decision to suspend them. In other words, the proceedings that lead to the removal of judges are always held in camera. The reports of the JCC that recommends the suspension or removal of judges are never made public.

Sometimes, even the affected officials who are removed through the current secretive process are never given copies of these reports. This ought to change. The proceedings ought to be open to the public, and the nature of the charges levelled against the accused judges must be published for all to see. If judges have failed or misconducted themselves in the course of their work, we the people need to know. After all, these judges exercise their authority in our name or on our behalf. Why is it unacceptable for us to know what wrongs they have done in our name and whether or not they have received justice?

By Shishuwa Shishuwa.

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Editor.