Retired Supreme Court Judge Phillip Musonda has made an application in the Lusaka High Court for leave to apply for judicial review to refrain the Judge Chikopa Tribunal from proceeding to investigate him for alleged professional misconduct.
Judge Musonda’s defense lawyers say their client cannot appear before the tribunal because he has resigned from judicial service. Judge Musonda also wants the Lusaka High Court to stay any preliminary decisions made by the tribunal against him
Musonda resigned as Supreme Court judge when he was about to be probed by the Judge LovemoreChikopa Tribunal for alleged professional misconduct.
He was to be investigated together with two High Court judges, Nigel Mutuna and Charles Kajimanga concerning the same.
Dr Justice Musonda has challenged the decision of the tribunal to proceed with the hearing against him saying there was no need for such as he has ceased from being a judicial officer.
He wants the court to quash the decision of the tribunal saying there was no way it could proceed because he had stopped serving in the judiciary by way of resignation under the law.
He also wants the court to order that the tribunal should not proceed to hear or make anydirectives or determinations against him following his resignation as a Supreme Court Judge.
Dr Justice Musonda wants that all formal proceedings to the tribunal scheduled to commence on July 15, 2013 and any preliminary decisions made by the tribunal to be stayed until after the hearing of his motion for summons or until further order.
He stated in his in ex-parte application for leave to apply for Judicial Review that the decision by the tribunal to proceed hearings against him is illegal as he had exercised his Constitutional right to resign which resignation has been accepted by his appointing authority.
He said “the applicant has ceased being a judicial officer within the meaning of section 2 of the Judicial Code of Conduct Act number 13 of 1999. The objective of the inquiry under Article 98 (5) has been achieved by the resignation and the jurisdiction of the tribunal overridden.”
Dr Justice Musonda said the decision of the tribunal was illegal in terms of Article 14 of the Constitution because it was tantamount to forced labour by assuming him to be a serving judge when he had already effectively resigned.
He charged that the decision of the tribunal is ultra-vires as he was no longer a sitting judge and that its sitting after his resignation would be illegal in terms of Article 23 of the Constitution.
He said the decision of the Tribunal to proceed against him also amounted to discrimination because in two other similar cases, proceedings of the tribunal were terminated after the two individuals had resigned.
He said the proceedings would be illegal and contrary to Article 18 of the Constitution as it violated his fundamental right to a fair trial in the light of an order for stay of proceedings granted to High Court judges Nigel Mutuna and Charles Kajimanga who were jointly charged with him and had a joint defence.
Dr Justice Musonda said if the tribunal went ahead against him alone, he would be deprived of the benefit of Judge Kajimanga’s evidence.
He further said the Tribunal was acting in excess of jurisdiction by insisting to proceed against him by inviting unknown persons to come and testify against him on matters that were outside the knowledge of such persons as the allocation of cases was an internal matter within the judiciary.
He said it was unreasonable for the tribunal to proceed and determine a matter that has already been determined by his resignation.
He said the same would be unreasonable and disrespectful of the Supreme Court ruling as it would ignore its wise and timely advice for it not to proceed with the hearings because there were Constitutional issues involved in the matter.