Lusaka High Court judge-in-Charge, Isaac Chali has refused to recuse himself in the case in which Civil rights activist Brebner Changala has made a fresh application for a writ of mandamus to compel Cabinet to constitute a medical board to determine the health status of President Michael Sata.
But Mr Changala has said he was shocked that Judge Chali had decided to go ahead and hear an application before the court when there was a complaint against him at the Judicial Complaints Authority.
Delivering ruling in the matter in which Mr Changala wanted the judge to recuse himself, Justice Chali said yesterday that he did not find reasonable grounds on which to base the perception by the applicant who feared that the words the judge used in his earlier ruling to describe him, coupled with his complaint to the Judicial Complaints Authority, might render him biased. Judge Chali added that Mr Changala’s lawyer Makebi Zulu submitted that the application for his recusal was not in any way intended to impugn his integrity but to preserve it from any perception of bias. “Counsel said he had confidence in my integrity and only wished to protect it from the perception of bias following his client’s letter of complaint to the Judicial Complaints Authority. First and foremost I find Mr Zulu’s submission to contradict the spirit of his client’s instructions and application. While the client is blowing hot, counsel is blowing cold.
“If indeed Mr Zulu did not find anything on which to impugn my integrity, he should have so advised his client, the application for recusal was going to be unnecessary. By his tone, Mr Zulu did not find anything wrong in me continuing to preside over the matter. For that reason alone I could have dismissed the application,” he said in his ruling.And Judge Chali said he had no apologies to make for the words or expressions he used in his earlier ruling to describe anyone including the applicant.
“If the applicant had come to court expecting to be flattered in words or indeed in the result of his case, then he should think again,” Judge Chali said.
He said litigants ought to know that not every case they took to court or application they made ought to result in their favour.
“There is an increasing tendency by litigants and their advocates to make unwarranted personal imputations of bias against judges when they lose cases. Imputations of bias should not be lightly made against a judge. They should only be made in clear situations. I cannot help but conclude that the applicant is merely speculating about the possibility of my being biased or prejudiced,” he said.
The judge said; “in the circumstances of the case, I can only describe the applicants’ application as flimsy, without merit and a disguised form of forum shopping, it is therefore dismissed”.
The judge has since sent September 4th 2014 as day for hearing the judicial review.
But Mr Changala said he was shocked that judge Chali had decided to go ahead and hear an application before the court when there was a complaint against him at the Judicial Complaints Authority. He said he did not understand why judge Chali had insisted to hear the matter.“I leave this to the legal minds in this country and the Commonwealth to see whether Judge Chali has any merit in going ahead in a matter that has landed at the Judicial Complaints Authority,” he said.Meanwhile Mr Changala said it was equally shocking that the acting Chief Justice could write to his lawyer asking for certain section of the law that could compel her to formulate a divisional court.
He was reacting to the special assistant to the chief justice Charles Zulu’s letter to his lawyer who requested that he should avail the acting chief justice provisions of the law upon which he requested for a divisional court. Mr Changala said he was getting worried that the matter was deliberately being delayed without taking the due consideration of the urgency of the matter at hand. “It is now going to two months since President Sata last interacted with nation but the judiciary is delaying progress in the case,” he said.