ACTING Chief Justice Lombe Chibesakunda has appealed to the Supreme Court to quash High Court Judge Dominic Sichinga’s decision to annul her decision not to appoint a tribunal to probe former Minister of Tourism and Arts Sylvia Masebo.
Justice Chibesakunda is also a judge in the Supreme Court.
She wants the Supreme Court to quash the decision by Judge Sichinga which overruled her when she refused to appoint a tribunal to investigate Ms. Masebo on allegations of corruption and abuse of office.
Justice Chibesakunda has argued that Justice Sichinga erred in law when he held that there was illegality in the Acting Chief Justice’s refusal to appoint a tribunal, thereby rendering the decision as being ultra vires and a nullity.
But former Minister of Tourism William Harrington has contended that Justice Chibesakunda erred when she refused to appoint a tribunal to investigate allegations of corruption and abuse of office levelled against Ms Masebo.
This is in a matter in which Justice Chibesakunda has appealed to the Supreme Court against the decision by Judge Sichinga to quash her decision not to appoint a tribunal to probe Ms. Masebo for corruption.
Judge Sichinga ruled that Justice Chibesakunda erred when she refused to appoint a tribunal upon an application by Mr. Harrington.
Mr Harrington has said through his lawyers, Gilbert Phiri of PNP Advocates, that the High Court was fortified in ordering that a tribunal be appointed as provided for under the Parliamentary and Ministerial Code of Conduct Act of the laws of Zambia.
“And the Acting Chief Justice Chibesakunda’s refusal to do so was illegal and accordingly a nullity and ultra vires,” stated Mr. Harrington.
He argued in his submissions made on 9th September, 2014 that the law clearly stipulated the administrative role of the Chief Justice upon receipt of a complaint from any person of the impropriety involving any Member of Parliament or Minister in Government.
Mr. Harrington said Justice Chibesakunda’s grounds of appeal must fail as it was crystal clear that she acted illegally in refusing to appoint a tribunal before he could furnish her office with details of the allegations.
“There is no provision in law requiring any would-be complainant to make out a prima facia case before the Chief Justice as that was a matter for determination by the tribunal once constituted. In any case, I did furnish the Acting Chief Justice with sufficient particulars in support of the allegations,” he stated.
Mr. Harrington has also disputed the accretion by the Attorney General Musa Mwenye that Judge Sichinga erred in law when he held that the decision to refuse to appoint a tribunal was flawed under the head of procedural impropriety as the decision effectively denied him an opportunity to be heard.
“I have agreed with the High Court that there was gross failure by the Acting Chief Justice to observe procedural rules expressly laid down in the Act and that the said Act does not bestow on the office of the Chief Justice licence to sieve complaints that she receives,” he submitted.
He also told the Supreme Court that if the framers of the law (Act) overlooked the need to grant power to the Chief Justice to consider the merits of the complainant’s allegations, the appropriate body to set the right, if at all it needed to be set right, that body was not the Supreme Court.
Mr. Harrington further submitted that the grounds of appeal by the Attorney General must fail as the procedures prescribed by the law were not followed by the Acting Chief Justice. He argued that it was a mandatory requirement in the Act for a tribunal to be appointed upon receipt of allegations of impropriety by Members of Parliament who may be a Minister of Government, adding that the Act used words such as “shall” denoting that it was mandatory.
“As a complainant I was entitled to be heard by a tribunal pursuant to the provisions of the Act.
I want to disagree with the Attorney-General that Judge Sichinga failed to appreciate the distinction between allegations and particulars, saying there is no dispute as to the definition of the two words and would therefore not belabour their semantics,” said Mr. Harrington.
He disagreed with the Attorney General that Justice Shichinga contradicted himself when he held that there was no decision made by the Chief Justice amenable to be quashed on one hand and that the decision made by the Chief Justice was ultra vires.
“The illegality by Madam Justice Chibesakunda according to Justice Shichinga was in not appointing a tribunal when the law did not vest any right in her to refuse to appoint a tribunal even after receiving a complaint.
‘‘Refusing to appoint a tribunal upon receipt of allegations is illegal and outside the provisions of the Act.
‘‘And it is an act of inaction on the part of the Acting Chief Justice that the High Court declared a nullity,” he said.