Plot No 9618
Law Association of Zambia
No. 1 Lagos Road
3 January, 2014
REQUEST FOR AN URGENT OPINION AND LEGAL ASSISTANCE
On 29 January, 2013, the Supreme Court heard an appeal in which Mr Newton Malwa (PF) was the appellant and I, Lucky Mulusa (MMD), was the respondent. This is a matter in which Mr Malwa was appealing against the Kitwe High Court’s upholding of my election as the duly elected Member of Parliament for Solwezi Central in the elections held on the 20 September 2011 by the High Court.
Mr Malwa was represented by Mr. B. Mutale, SC and Mr. T.M Chabu of Ellis and Company, while Mr Moses Chitambala of Lukona Chambers represented me.
The Supreme Court panel constituted Chibesakunda, Acting Chief Justice, Mumba, Acting Deputy Chief Justice, and Wanki, and Muyovwe, JJS.
Judgment was delivered on the 10 December 2013 (see attached).
In August or September 2013, the Lawyer for the Appellant, Mr. B. Mutale, became the lawyer for the Act. Chief Justice as well – meaning that his submissions were still being considered by her in the judgment later delivered in December 2013.
In the defamation of character case between Dan Kalale and QFM Radio currently before the High Court, evidence that suggests impropriety on the part of the Acting Deputy Chief Justice was heard. It emerged that, in 2010, Justice Florence Mumba, now the Acting Deputy Chief Justice, as Chairperson of the Electoral Commission of Zambia entered into an illegal contract with an audit firm, KPMG, to conduct an illegal audit of the ECZ books of accounts, which at that time had already been audited by the Auditor General. This was done without following tender procedures and neither did she have executive powers to do so.
This act was also allegedly accompanied by a demand that the audit firm be paid upon commencement of the illegal exercise. The sum involved was K1.1 billion (Kr1,100,00). Both the Auditor General and the Zambia Public Procurement Authority found her criminally liable for prosecution. The Anti-Corruption Commission (ACC) also found her wanting in her conduct but strangely enough, only gave her a written administrative censure. This act was of a criminal nature. It was a misplaced conduct by the ACC to give her an administrative censure over a matter of a criminal nature for which she should have been prosecuted.
As stated above, two of the Justices who sat on the panel ought not to have sat for the following reasons:
Act. Chief Justice Lombe Chibesakunda: –
- The Acting Chief Justice, Lombe Chibesakunda, heard the appeal from lawyers who later became her own lawyers while the case was still active and pending judgment; and
- The Acting Chief Justice, Lombe Chibesakunda, heard the appeal from a political party which the Acting Chief Justice appear to have struck an agreement with as witness the revelation in the correspondence in the Nevers Mumba Supreme Court contempt judgment (see attached).
Act. Deputy Chief Justice Florence Mumba:-
Her history at the Electoral Commission of Zambia and her subsequent elevation to the position of Acting Deputy Chief Justice by the PF government is suspect and does not qualify her to be an honorable person who cannot be influenced by external forces. The conduct of the ACC did not provide closure to the matter and any concerned member of the public can still activate the matter for prosecution. This makes her position highly compromised.
I am seeking your opinion whether an urgent application can be made to request the Supreme Court that:
- The whole judgment be reversed; and
- The appeal be heard all over again before a different panel.
This would be on the grounds that the panel that heard the appeal included at least two persons, the Acting Chief Justice, Lombe Chibesakunda, and the Acting Deputy Chief Justice who ought not to have sat:
I also wish to know if there is any inherent and enabling jurisdiction under which such an application can be made.
PRECEDENTS RELIED UPON
Convictions have been quashed in cases where the prosecutor was seen to have had a cup of tea with the magistrate. Decisions have been reversed because of that.
In R v Bow Street Metropolitan Stipendiary Magistrate Ex parte Pinochet Ugarte (No. 2), the House of Lords, revisited its own judgment and set it aside on the grounds that there was the possibility of bias.
This matter is of a public nature. It has potential to have far reaching implications on the dispensation of justice by the Supreme Court under the reign of the Acting Chief Justice Lombe Chibesakunda and also provide a precedence that future matters of a similar nature may rely upon.
I therefore request that, if the opinion rendered is in the positive, LAZ considers representing this matter in the public interest. The actions required are:
- Render the urgent opinion sought as stated above;
- Request the Supreme Court:
- To reverse the judgment; and
- Request that the appeal be heard all over again before a different panel.
- Simultaneously, file an application to stay the judgment; and
- Request that the lawyers acting for the Acting Chief Justice, Lombe Chibesakunda recuse themselves.
In conclusion, the aim for pursuing this matter is:
- To uphold the principle of natural justice;
- To avoid bias or semblance of bias on those who are judging others (This is the principle well supported by the Judicial Code Of Conduct Act); and
- To ensure that justice must not only be done but must manifestly be seen to be done.
The Supreme Court is the final court in our land. There is therefore nobody else I can go to. I have to somehow go back to the Supreme Court to ask the court to set aside its own judgment and send the matter to another panel to hear it.
Failure to do this will result in the Supreme Court having litigants leaving the court with deep and abiding sense of grievance that justice has not been done and that we are victims of injustice.
Thanking you in anticipation of a favorable hearing,