LAZ joins Sangwa’s case on the Chief Justice

The case in which Lusaka based lawyer John Sangwa has asked the High Court to order Chief Justice Ernest Sakala and Supreme Court Judge Peter Chitengi to vacate their offices because of the two’s alleged over-age has taken off.

And the Law Association OF Zambia (LAZ) has joined the proceedings as friends of the court through lawyer Eric Silwamba.

Attorney’s-general Mumba Malila in his affidavit filed this morning said that the Chief Justice was just re-appointed. The case in being heard by Ndola based judge Lisimba but is sitting in Lusaka. The matter comes up Friday for hearing.

Mr Sangwa is seeking the high court’s oder that Chief Justice Ernest Sakala and Justice Peter Chietengi should vacate office because they are too old.

Mr. Sangwa is acting on behalf of his clients, Faustin Kabwe and Aaron Chungu, who are jointly charged with former President Frederick Chiluba for alleged theft of US$500,000 public funds.

Mr Sangwa’s petition arises from a case in which the Supreme Court dismissed Chungu and Kabwe’s appeal against High Court Judge Evans Hamaundu’s decision, which denied them leave to apply for judicial review.

In their application for leave to apply for judicial review, Kabwe and Chungu sought an order of mandamus to oblige Ndola High Court registrar, Jones Chinyama, who sits as principal resident magistrate, to give reasons for finding them with a case to answer together with Chiluba.

Mr Sangwa said in his petition that at the time of hearing the appeal, Mr Justice Sakala and Mr Justice Chitengi had passed the retirement age of 65 stipulated in Article 98(1) of the Constitution.

He said after their retirement, the late President Mwanawasa appointed the two judges to a term not exceeding seven years, but that Parliament did not ratify the appointment.

“Their assumption of office as Supreme Court Judges and their performance of the functions, without ratification by the National Assembly of the said appointment, violated Articles 1 and 93 of the Constitution,” Mr Sangwa said.

He said by virtue of such facts, his clients’ right to a fair hearing before an independent and impartial court established by law as guaranteed under Article 18(9) was violated.

Mr Sangwa said this is because the court that heard their appeal on June 2, 2009 and delivered its judgment on July 9, 2009 was not a court established by law, and that it was not independent and impartial.

He is therefore seeking an order restraining Mr Justice Sakala and Mr Justice Chitengi from occupying and performing their official functions until after hearing and determination of the petition.

Mr Sangwa is also seeking a declaration that the two judges’ occupation of office and performance of official functions is beyond Article 93(2) of the Constitution, hence null and void.

And in the affidavit in support of summons for an interim relief, pursuant to Article 28(1) of the Constitution, Mr Sangwa said the relief his clients are seeking is necessary because as long as the two judges continue occupying office and performing official functions, it is unlikely that the petition will receive a fair hearing.

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