THE Executive arms of Government on May 17,2012 came back fighting after Judge Fulgence Chisanga on Wednesday granted suspended Justices Nigal Mutuna and Charles Kajimanga leave to apply for Judicial review.
Judge Chisanga’s ruling meant stopping the proceedings of the tribunal appointed to investigate the alleged misconduct of Supreme Court Judge Philip Musonda and Two High Court Judges.
But Solicitor-General Musa Mwenye yesterday rebutted the High Court’s decision to stay proceedings of the tribunal.
The matter will come up today for continued hearing in chambers.
Mr Mwenye said Suspended suspended Justices Mutuna and Kajimanga have gone to Court prematurely, contrary to the provisions of the constitution.
This contained in the summons to discharge leave to commerce judicial review proceedings filed in the Lusaka High Court on May 17,2012.
Mr Mwenye said the powers to appoint a tribunal by Republican President is a constitutional move.
“The power to appoint a tribunal by the Republican President is a constitutional check on the Judiciary and the Judiciary cannot hear a matter suggested in the application.
“This is because it will become a judge in it’s own cause, endangering the well-established principle of memo judex in sua causa or no man should be a judge in his own cause,”Mwenye said.
Mwenye said the application to commerce Judicial review by two High Court Judges will fail in view of the provisions of Article 98(3) of the Constitution .
He said President Sata acted within his express constitutional powers as contained in Article 98(3) of the Constitution when he appointed a tribunal to inquire into the conduct of Justices Nigel Mutuna and Charles kajimanga.
Mr Mwenye said there is no procedural impropriety whatsoever on the part of President Sata because Article 98(3) of the constitution does not require him to hear the suspended Judges before he decides that the question of removing them ought to be investigated.
He said President Sata’s decision to appoint a tribunal to inquire into the conduct of the suspended judges is not unreasonable and the two judges have not displayed anything to exhibit unreasonableness .
President Sata suspended Supreme Court judge Musonda and High Courts Judges Kajimanga and Mutuna for alleged professional misconduct.
Justices Kajimanga and Mutuna have sued the Attorney-General ,asking Court to quash President Sata’s decision to investigate them.
Zambia Daily Mail