Ministers who stayed in office illegally ordered to refund treasury

Ministers who stayed in office illegally ordered to refund treasury

 

THE 64 PF ministers who illegally remained in office after Parliament was dissolved ahead of the general elections will have to pay following the Constitutional Court’s refusal to reopen and review its final order.

In this matter, Patriotic Front secretary general Davies Mwila, on behalf of 63 others, asked the court to set aside part of its judgment that ordered the ministers to pay back salaries and allowances they obtained during the dissolution of Parliament.

This was in a matter where UPND, through its secretary general Steven Katuka petitioned the Constitutional Court to order Ngosa Simbyakula and 63 others to pay back all the money they got after Parliament was dissolved.

In his ruling Constitutional Court judge Enock Mulembe indicated that the court’s adjudicatory function could be defeated if its final decisions were open to casual challenge in form of applications for revisiting or setting aside part or the entire judgment at the instance of an aggrieved party.

Justice Mulembe, on behalf of other Constitutional Court judges, directed that the court had inherent authority to control its own procedure and to suppress any abuse of process.

The court upheld the arguments by the Law Association of Zambia (LAZ) that the 64 ministers ought to have sought leave of court before asking it to reopen its judgment of August 8, 2016.

LAZ had raised preliminary issues, seeking a determination on whether a party could seek to reopen a case without seeking leave of court and whether the application was competently before court.

“We find that on the basis of this court’s inherent power to control its own procedure, the third petitioners (LAZ)’s preliminary issue is meritorious and it is accordingly upheld,” judge Mulembe said.

Mwila had submitted that the order that cabinet ministers pay back the salaries and allowances they got while Parliament was dissolved in 2016 was unjust and oppressive and would result in the respondents suffering injustice through no fault of their own.

The former minister of home affairs prayed to the court to set aside the order, as its decision was improper, unjust, and was contrary to Article 118 and the national values and principles of human dignity, equity and non-discrimination outlined in Article 8 (d) of the Constitution.

“The respondents affected by the order were, through no fault of their own, subjected to an unfair process,” he said.

But LAZ raised a preliminary issue on whether the court had jurisdiction to reopen its final decision without a party needing to do so by seeking leave of court.

Lawyer representing LAZ Jeffrey Chimankanta stated that the party seeking the re-opening of the court’s final decision should seek permission of the court on paper and such permission must be granted.

He said that the Constitutional Court had jurisdiction to re-open its final decision on condition that the party seeking to move that motion obtains court permission in order to be heard.

Chimankanta argued that there was no rule which provided for the re-opening of the Constitutional Court’s final decision which had already been passed and entered.

He urged the panel of five judges to adopt the practice and procedure of the Court of Appeal of England in the matter of Taylor Vs Lawrence, which held that the court had jurisdiction to reopen its final decision but a party making an application should seek leave of court to move the motion.

Chimankanta said it was clear from the motion filed by Mwila that he did not seek the permission of the court to re-open its final decision but proceeded as though the court granted him permission.

He contended that as of August 10, 2016, the decision which Mwila was asking the court to reopen became functus officio as it was closed adding that re-opening the matter without the leave of court would amount to injustice.

Chamankanta urged the court to pronounce itself on the need for a party seeking to reopen its final decision to seek its permission before filing a motion.

He said if parties were allowed to casually seek to reopen final decisions of the court without seeking the court’s permission, there would be confusion as there would be no end to litigation.

Chimankanta further argued that if the matter went ahead without seeking leave of court “It would mean that every decision this court has made from 2016 would be subject to reopening without the permission of the court, even after this court pass it’s final decision, the other party would casually apply for reopening of the case and there would be no end to litigation.”

But Attorney General Likando Kalaluka said LAZ had conceded that the Constitutional Court had jurisdiction to re-open its final decision in exceptional circumstances but the only issue the law association had was that the 2nd respondents must have sought leave of court in writing.

Kalaluka said that the seeking of leave was not absolute as there were exceptional circumstances in a few cases like the one in issue.

“The position the State takes in this matter is quite different from the position taken by all other parties in that the state is of the view that the matter is an exceptional,” Kalaluka said.

He said the direction of the Court of Appeal in England in seeking written permission places undue influence on the party making the application and offends the constitutional provisions of Article 118 (2) (e).

Supplementing the Attorney General’s application, the respondents’ other lawyer Milingo Lungu, said although leave was not sought by Mwila, the same would not be fatal to affect the proceedings of the matter.

However, the Constitutional Court ruled that re-opening its decision would bring disarray and uncertainty to the proper functioning of the court.

Judge Mulembe ruled that the position of the court was that revisiting its final decision should be considered extra ordinary and a party seeking to re-open the decision must make a formal application for leave to reopen a final judgment of the court.

He directed that the 64 ministers required leave of court to file their notice of motion to set aside or revise parts of the judgment of August 8, 2016 but no such leave was sought and obtained, which rendered the motion incompetent before the court.

“In this regard, our firm view is that the efficacy of this court’s adjudicatory function would suffer defeat if its final decisions were open to casual challenge in the form of applications for revisiting or setting aside whole or parts of the said decisions at the instance of an aggrieved or losing litigants,” ruled justice Mulembe.

He further ordered that each party bears own costs.

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