Supreme Court judges have warned that if the Chikopa Tribunal will take place, it will do so against the better judgment and advice of the Supreme Court of Zambia and will have the effect of undermining the independence of the Judiciary in Zambia.
According to the three dissenting Supreme Court Judges the very fact that the majority judges acknowledged that there were issues which made it necessary that the Tribunal should not proceed, meant that Judge Flugence Chisanga was right in her earlier decision to grant Judicial review so that contentious matters could be resolved.
In their combined judgment availed to the press the Judges expressed concern that procedural propriety had not been observed in the manner the President proceeded to appoint a Tribunal without considering recourse to the Judicial Complaints Authority which he appoints.
Judge Hilda Chibomba said the independence of the Judiciary must be guarded by all and that an enabling environment must be created so that judges work freely and fairly without feeling at any stage that , ‘a displeased litigant’ can complain to the Head of State and a Tribunal be appointed.
The Judiciary she said must exercise its function without fear or favour- whether imaginary or real.
Judges, she said, were accountable for their conduct and for their work.
In the case of JCN, Post Newspaper and Mutembo Nchito case, it was common knowledge, she said that an appeal has been lodged in one of the cases that led to the appointment of the Tribunal by some parties and was pending judgment in the Supreme Court.
This, she said, was one of the mechanisms that the parties explored.
She noted that the event leading to the appointment of the Tribunal also stemmed from the judges or their judicial functions as judges.
Judge Elizabeth Muyovwe also noted that although the majority judgment stated that the President had “unfettered” discretion it still concluded that “It would be advisable considering the circumstances of this matter for the Tribunal not to proceed.” She said.
This, she said, implied that the President should have allowed a different course of action because Judge Flugence Chisanga was correct.
She found Judge Chisanga was on very firm ground in her decisions to grant judicial review.
Judge Muyovwe said the President should not appear to ignore a statute whose very existence emanates from the constitution.
The Judicial complaints Authority, she said was established to provide checks and balances on the Judiciary.
Another Judge Marvin Mwanamwambwa said that it was erroneous to suggest that executive action by the President were not amenable to judicial review.