The government has failed in its legal battle to exclude former Solicitor General Abyud Shonga from representing the Law Association of Zambia (LAZ) in a matter in which the lawyers are demanding the removal of Justice Chibesakunda as the Chief Justice.
This is in a matter where Attorney General Mumba Malila through the Solicitor General Musa Mwenye applied to the High Court seeking for an order to have Abyud Shonga withdraw from representing LAZ for what they called conflict of interest.
Judge Zulu said that there was no harm in Shonga representing LAZ provided he protected and preserved the obligation of confidentiality of his former employer.
He also said that in light of State Counsel Shonga’s present instruction to act and retain brief on behalf of LAZ: “I can safely say there is no risk or actual conflict of interest, equally there is no real risk or actual breach of fiduciary and confidential obligation on the party of Mr. Shonga. Therefore the application to have him restrained or prevented or withdraw from representing LAZ is dismissed,” ruled Judge Zulu in favour of LAZ.
The Association has dragged to court Malila and Justice Chibesakunda for breaching the constitution.
LAZ also wants a declaration that the re-appointment of Justice Chibesakunda as Supreme Court judge by President Sata in May 2012 was illegal, null and void.
LAZ further wants the High Court to declare and order Justice Chibesakunda to vacate the office of the Supreme Court Judge and that Article 98 of the constitution of Zambia might not be used to reappoint a Judge of the High Court or Supreme Court to a position other than the position the said judge was ratified for upon first appointment.
The association is demanding that the Court to declare that President Sata 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 and to also declare that Justice Chibesakunda having attained and exceeding the age of 65 years did not qualify to hold the office that the office of Chief Justice of Zambia.
But in making his application and submissions to stop Shonga from representing LAZ, Mwenye observed that it would be conflict of interest for Shonga to be part of the LAZ team of lawyers seeking Chibesakunda out of the office on behalf of LAZ because at the time he was appointed Solicitor General Chibesakunda was re-appointed on a contract as a Judge of the Supreme Court.
Mwenye also observed that in terms of Article 54 of the Constitution, the Attorney General was the principal legal advisor to the government deputised by Solicitor General and therefore any contract cannot be concluded without the legal advice of the Attorney General and Solicitor General when so assigned.
He also contended that there was a risk of breach of confidence, saying that as a matter of professional imperative Shonga should be ordered to withdraw from the proceedings.
In his ruling Judge Zulu said that Shonga cannot be stopped from acting on behalf of LAZ and prosecute and defend interests adverse to the government provided there was no conflict of interest based on the principal of same matter conflict.
“Based on the statements made from the bar, it is prima facie true that the learned Mr. Shonga SC was not privy to the contract for the aforesaid first re-appointment let alone the appointment of her ladyship as Acting Chief Justice. In fact whereas it is alleged that the first re-appointment of Justice Chibesakunda was in April 2009, Mr. Shonga SC was only appointed Solicitor General in August 2009,” he said.