Malawian Judge Lovemore Chikopa faces up to half a year in jail for contempt for disobeying a Ndola High Court order.
Ndola High Court judge Mwiinde Siavwapa has rejected a defence by Attorney General’s chambers, that they ignored a court order not to proceed with the tribunal because it had no warning of the possible punishment to be faced by anyone who would ignore it. The court held, among others, that since Chikopa was a judge, he ought to have known the consequences of disobeying a court order.
The judge has also dimissed an application by the state to dismiss the judicial review application.
Earlier this year, Chikopa and Chipili Katunansa who are chairperson and secretary respectively of the Tribunal Appointed by the President to Inquire into Alleged Professional Misconduct of judges Philip Musonda, Charles Kanjimanga and Nigel Mutuna went ahead to hold sittings for their tribunal despite being ordered not to do so by the court.
Judges Charles Kanjimanga and Nigel Mutuna asked the court to charge Chikopa and Katunasa with contempt of court,but the state argued that they could not be charged with contempt of court because the stay of proceedings delivered to them did not contain a warning that if they ignored it, they would face jail.
Nevertheless, Justice Siavwapa dismissed the duo’s argument and ordered that they be tried for contempt of court.
Siavwapa, through a litany of references to established law, held that the court had discretion on whether to add a notice of possible consequences of disregarding a stay of proceedings.
“The court of appeal held that the court has discretion to dispense with failure to incorporate a penal notice in a judgment or order requiring a person to abstain from doing an act and not where the judgment or orders requires a person to do an act.
The court has discretion to enforce a breach of an order by committal despite the absence of a formal penal notice,” the judge adjudicated.
Justice Siavwapa held that though the notice to stay proceedings did not elaborate the punishment Chikopa and Katunasa would face if they acted to the contrary, the power to punish for contempt of court is meant to prevent interference with the administration of justice, and that if Chikopa and Katunasa were allowed to ignore court orders on mere technicalities, the administration of the Zambian judicial system would be thrown in disarray.
He said that it was of extreme importance that the administration of justice is not allowed to suffer a fatal blow in the eyes of the public in order to give effect to the procedural requirements of the law.
And in another matter before Justice Siavwapa, the court allowed judicial review of the conduct of the Chikopa tribunal and dismissed arguments by the Attorney General that calls for the Chikopa tribunal’s conduct to be subjected to a judicial review lacked merit and were a repetition as the Supreme Court had already judged that the President had the right to create the tribunal.
The court said that what was before court was not whether the President could constitute a tribunal but whether the tribunal could behave a manner the defendants are not comfortable with.
The court also said the possibility of replicating trials (res judicata) could also not hold as the case of legality of the tribunal was not the same as he case of the legality of the conduct of the tribunal.
The two judgments mean that Chikopa and Katunasa could be jailed for contempt of court, and the way they conducted themselves be tried by a judicial review.