LAWYERS representing suspended High Court judges Nigel Mutuna and Charles Kajimanga and Supreme Court Judge Dr. Phillip Musonda have asked the Supreme Court to dismiss the appeal case involving JNC Holdings, Director of Public Prosecution (DPP) Mutembo Nchito and Fred M’membe with cost.
This was after the State yesterday failed to justify why President Michael Sata suspended the three Judges involving the K14 billion Development Bank of Zambia (DBZ) scandal and consequently appointed a Judicial Tribunal without using the channels provided for in the constitution.
Attorney General Mumba Malila through Solicitor General Musa Mwenye insisted that President Sata acted correctly because Article 98 of the constitution allowed him to suspend Judges and appoint Tribunals.
But the Lawyers representing the suspended judges Eric Silwamba, Milner Katolo and Abyud Shonga argued that Article 91 of the Constitution stipulated the manner in which the President should have exercised those powers.
In any case they argued, the provision of judicial review existed to question the exercise of authority reposed in public offices including the Presidency.
This was the basis of argumentation when the bench made of seven Supreme Court Judges led by acting Chief Justice Lombe Chibesakunda sat to hear the appeal by the State against the grant of Judicial review against the Tribunal made by Judge Fulgency Chisanga.
In a unique hearing, the judges first decided to consolidate the various submissions including preliminary issues into a hearing of the appeal.
The suspended Judges had earlier raised a preliminary issue arguing that the appeal by the State was pre-emptive of the main matter which was still to be decided by the High Court in the Judicial Review proceeding.
But the State argued that the High Court ruling which had effectively stopped the Tribunal was wide ranging and beyond it’s scope.
Instead of waiting for Judicial Review proceedings, they felt that an appeal was the most appropriate avenue because the Judges did not stand a chance of winning the review as they were challenging a constitutional provision, namely Article 98 of the constitution which gave the President power to suspend Judges and constitute Tribunals.
But State Counsel Silwamba countered that the very constitution which had article 98 also had article 91 which prescribed the manner in which disciplinary action against Judges had to be undertaken, which was an Act of Parliament.
The Attorney General made no reference to article 91 of the constitution.
Lawyers representing Supreme Court Judge Philip Musonda also raised a preliminary issue, stating that the Zambian Airways case was still before courts of law and therefore could not at the same time be an issue in the Tribunal.
The judges have adjourned the matter to a later date to be communicated for judgment.