Sangwa finally takes Chief Justice to High court
Supreme Court of Zambia
Lusaka lawyer John Sangwa today (Tuesday) morning filed in a petition in the High Court to have Chief Justice Enerst Sakala vacate office.
The petition is also for Justice Peter Chitengi to vacate office saying the two are in office illegally.
Mr. Sangwa contends that the two’ s contracts were renewed by Late president Levy Mwanawasa in July 2008 without ratification by parliament as required by law.
Last Week Mr. Sangwa petitioned Attorney General Mumba Malila on the issue and gave him seven days to act.
Arttoney General Malila has failed to respond hence the move to the High Court by Mr. Sangwa.
Mr. Sangwa argues that the two senior judges are above the retirement age and should have retired at 65.
The Chief Justice and Justice Chitengi have already been served with court documents.
Below is the retyped petition letter by Mr. Sangwa to Arttorney General:
Our ref: K48/JPS/2009
The Attorney General
Ministry of Justice
Fairley Road
Ridgeway
Lusaka
Dear Sir,
The People v.The Prinnciple Magistrate, Ex-Parte Faustine Mwenya Kabwe
And Aaron Chungu Appeal No. SCZ/8/93/2009
[1] On 29 April 2009, we lodged the above-stated appeal and because of its urgent nature it was heard in Ndola on 2nd June 2009, by a Bench consisting of the Chief Justice, Mr. Justice Peter Chitengi and Madam Justice Chibombo. We understand that Madam Justice Chibombo is acting Judge of the Supreme Court in line with the provisions of Article 93(5) of te Constitution. On 9th July, what was described as the “judgment” of the Court was read by the Chief Justice and our client’s appeal was rejected.
[2] It has now come tour client’s attention that the time of hearing the appeal on
2nd June 2009, both the Chief Justice and Mr. Justice Chitengi had already passed the retirement age of sixty-five stipulated in Article 98(1) of the Constitution, hence not qualified to hold the office f judge of the Supreme Court; consequently not competent to hear and determine this appeal or any other appeal case.
[3]Article 98(1), omitting the parts not relevant to the issues at hand, reads:
Subject to the provisions of this Article, a person holding the office of a
Judge of the Supreme Court — shall vacate that office on attaining the age
Of sixty-five years: (Emphasis ours)
[4] We are aware of the proviso to Article 98(1), which omitting the parts not relevant, reads:
Provided that the President-
(a) may permit — a judge of the Supreme Court, who has attained that
age to continue I office for such a period and may be necessary to enable him to deliver judgment or to do any other thing in relation to proceedings that were commenced before him before he attained that age;
(b) may appoint — a judge of the Supreme Court, who has attained the age of sixty-five years, for such further period, not exceeding seven years , as the President may determine. (Emphasis ours).
[5] These provisions did not allow their Lordships to hear and determine this appeal or any other appeal after reaching the retirement age. If their Lordships are in the office on the strength of proviso (a), it is our view that that proviso only empowers that President to permit their Lordships to continue in office, after reaching the retirement age, only for such a period as may be necessary to enable them to deliver their opinions in appeals, which they heard before reaching the retirement age. It does not allow them to hear and decide appeals after attaining retirement age.
[6] However, if their Lordships are in office on the strength of proviso (b), we admit that under that proviso the President has power to appoint a retired judge of the Supreme Court to another term not exceeding seven years. This is a fresh appointment which must be ratified by the National Assembly in line with the provisions of Article 93.
[7] So far as we have been able to establish there has been no ratification by the National Assembly of their Lordships’ appointments after retirement. It is our position that the Chief Justice and Mr. Justice Chitengi are holding their offices and performing the functions of the judge of the Supreme Court illegally. They are doing so in violation of Articles 93 and 98 of the Constitution. They were not, therefore, competent to hear and decide our clients’ appeal.
[8] The allocation of or clients’ case to a Bench made up of the Chief Justice and Mr. Justice Chitengi also violated our clients’ right guaranteed under Article 18(9) of the Constitution. Under that Article our clients are guaranteed the right to a fair hearing before and independent and impartial Court. A panel dominated by retired Supreme Court judges, but in office in violation of the Constitution, cannot be independent and impartial as required by the Constitution. The situation is aggravated when the following factors are considered,
(a) although the President has the power to appoint a retired judge for a further period not exceeding seven years, the circumstances in which the Chief
Justice and Mr. Justine Chitengi were appointed and the period they are expected to serve are not known;
(b) their appointments after retirement were not ratified by the people’s
representatives in the National Assembly;
© without such ratification the judges are serving at the pleasure of the;
President;
(d) given the low life expectancy in Zambia, there is a presumption that
once one has served up to the age of 65, one has given his best both physically and intellectually;
(e) given the high level of unemployment in the country those who have
reached retirement should vacate their officers and create room for
others; and
(f) after all a retired judge is entitled, until death, to 80% of the serving
judge’s emoluments;
[9] Other than violating the Constitution the panel that heard our clients’ case also violated Section 3(2) of the Supreme Court Act, which provides:
The determination of any question before the Court shall be according to
The opinion of the majority of the members of the Court hearing the case.
[10] The Court hat heard and determined our clients’ appeal was made up of three judges of the Supreme Court, the minimum number of judges that can hear and determine an appeal as stipulated in Section 3(1). However, only one opinion was read by the Chief Justice as representing the opinion of the Court. This is in violation of Section 3(2) of the Act. The said Section requires each of the three judges, working independently, to deliver his or her own opinion. It is only after reading the opinion of each judge will it be possible to determine the majority opinion of the Supreme Court cannot, therefore, be pre-determined by the judges in secrete chamber and one opinion delivered. It is for the parties to the appeal and other interested parties to read opinion of each judge and from there deduce the majority opinion of the court of the. Our clients have the right to know the opinion of each judge that was part of the panel that heard their case. The said provision is meant to benefit our clients and is designed to enhance the independence and impartiality of the Supreme Court
[11] The departure by the judges of the Supreme Court from the provisions of the Section 3(2) of Act;
(a) undermines transparency and accountability within the Supreme Court;
(b) stifles diversity in legal thinking and creativity;
© violates Article 91(2) OF THE Constitution, which enjoins judges to observe
the Constitution and the law;
(d) curtails development of the law and the legal system; and
[12] If your interpretation of the constitutional and statutory provisions we have referred to is different from ours we have instructions from our clients to move the High Court so that the issues we have raised can be adjudicated upon. However, if you share our interpretation of the said provisions, we would like to know what you propose to do to correct the constitutional and statutory violations we have outlined above.
[13] We would be grateful to hear from you within seven days from date hereof. If we do not we have instructions to move the High Court.
Yours faithfully
Simeza Sangwa & Associates
Cc: His Excellency the President
His Lordship, the Chief Justice
Her ladyship the Deputy Chief Justice
His Lordship Mr. Justice Chitengi
The Speaker of the National National Assembly
Mr. Faustin Kabwe
Mr. Aaron Chungu
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BRAVO JOHN PETER SANGWA, YOU ARE THE ONE!!!!!
If Sangwa’s claims are frivolous, the High Court will straighten him out. Nonetheless, what we can’t afford as a civilised society is to create a privileged group of citizens who, by virtual of the offices they hold, become UNTOUCHABLES (not in the Indian Cast System way), or who are above the Law.
I thought that people like Sangwa have the law on their finger tips. Yes your claims Sangwa are corect according to Article 98(1) of the laws of Zambia. But the provisions of Article 98(1)(b) the president has the power to appoint someone who has attained the age of 65 and that person can save in that capacity for a period not exeeding 7 years. Based on what have you taken the CJ to the High Court? Please have a clear understanding of the law not half baked claims. Go and make your stand firm before you take up such a sensitive issue.
Purebreed:
That’s what lawyers do. They are advocates on behalf of their clients—even on behalf of murderers. It is up to the prosecuting body (govt in this case) to make sure the accused (FTJ) doesn’t not get off—either evidentiary or procedurally.
You can’t fault defense attorneys for using every legal means at their disposal to defend and, quite possibly, free their client. After all, that is what they are paid for. Seems unfair, but perfectly legal.
Isaac Chisuzi is a retired General he should also face the law.
Wherever this country is going to.
Just yesterday the ZRA boss was busy receiving a donation on behalf of the Umutomboko, surely can he be expected to preside over affairs of ZAIN in an impartial manner after that nice donation?
These are things we should be dealing with as we reform Institutions, now we have a Chief Justice who has seemingly no credibility even in the eyes of his own fraternity, kaya
People! lets be objective at the matter on hand. Lets not just condemn everything going on based on our emotions. This is constitutional matter and has been taken to courts of law. Whether Chiluba and the group is involved does not matter as we have to put things in order. Sangwa is brave and deserve our support, not forgetting that he is only acting according to instructions from the client. Lets not show our ignorance over matters we do not understand instead of waiting and see. The Post who have being in the forefront crucifying plunders know also how to handle it as it will serve as a bench mark even to our future generation!!!!!!!
Finally Mr Sangwa is winning his defence on technicalities, first he rightly contended that the Task force is illegal and up to date the task force has failed to arrest chungu and Kabwe, now he is rightly sayng the chief justice is occupoying office illegally as per constitution.Could this be the first nail on the Task force’s casket? Mr Sangwa earlier went to court contending that the appointment of private prosecutors from MNB was illegal because tender procedures were not followed despite the deal involving billions.He went further to say that only the Police from ZP, DEC and ACC have the power to make an arrest in this country as the task force was not established by parliament the peoples representative and has therefore no jurisdiction in this country.On the same issue he and prof Mvunga even asked the courts to declare Max Nkole a hostile witness.My advice to Malila(AG) is to handle this fight between Sangwa and Nchito in a mature way as it has the potential to create a constitutional crisis.All these are problems LPM sc created and swept them under the carpet by making freinds with Big media houses.
Well done Sangwa ! please extend the same to thedefence service wings i.e ZAF wing, Army wing, Police service and ZNS. they have a lot of old ballies working on contracts that Levy Mwanawasa foolishly introduced to benefit only a selected few that were related to him. Get all of those those chaps by the b@llz !!
Go GO sangwa, all I like is a man of actions not people who just talk and talk. Fight this to the bitter end, we are with you on this one. lose or win, its better to set the record straight.
There is something really fishy going on in the judiciary. But sangwa has a point. Custodians of the law should observe the law to the letter.
Notwithstanding Article 98(1) of the Constitution, Article 98(1)(b) does allow their lordships to continue on the bench for a further 7 years and it is stupidity of the worst order for Sangwa to manufacture provisions that are not in the constitution by claiming that this requires a fresh appointment which must be ratified by the National Assembly in line with the provisions of Article 93. His arguments are dangerously vexatious and it is now incumbent on the LAZ to expunge this plunder defence lawyer immediately.
Reading Sangwa’s letter above, it feels one with shame that a supposedly lawyer of note could scheme such a pathetic charade, with evil intent and to one end alone, misintepreting the law for his own personal gain to get plunderers off the hook. People of Zambia have for long complained about these plunder defence lawyers’ delaying tactics and for one, I do not see anything wrong with Sakala’s wise counsel to Phiri to conclude the case sooner than later.
Looking at the performance of the courts, I agree with Sangwa! The Dora saga and rubbing shoulders with convicts who await appeals is a confirmation that courts are being headed by compromised and tired minds.
Zambia is finishing like a Chitenge material!
Dora Siliya was set free bucause the tribunal had no jurisdiction.
Let’s see what happens to the above case presided over illegally.
Government of law is gone. Wehave government of men.
What was the rationale behind the 65 years limit in the constitution?
Fi law fyacabecabefye. So are the two presiding over cases illegaly after having reached retirement age? Nalifisula sana fi law. Nibukabolola ibwasuminishiwa.
How can the man of the law, the custodian of the law, the refuge for all be a law breaker. ernest Sakala and other pensioners should leave the bench. We have topo many people queueing up for such jobs. Let him leave it too young people. Above 65 years? Let Sakakal and Peter Chitengi go!
We are counting down. Six days to go.
Finally tables have been turned. The CJ has too much of an interest in these corruption cases and its only fair that he leaves if justice is to be seen to be done.
yalula khani, we shall wait and see how the law can be bended to suit whoeva
Yebo, this makes too much sense but what the hell is going on between CJ and Sangwa?
Do we smell the “Free Chiluba” campaign using other means