Why judge Hamaundu should not chair Kabimba tribunal

Following revelations by Fr Frank Bwalya that Judge Hamundu is a former classmate of Justice Minister Wynter Kabimba, we are beginning to question Hamaundu’s integrity.

Hamundu is the chairperson of the tribunal that has been set up to investigate Kabimba.

Being a senior Judge, we expected Hamaundu to be well versed with rules of natural justice especially the need to have no bias in decision-making.

We expected Hamaundu to recuse himself from leading the tribunal on Kabimba. He is not even supposed to be on that tribunal. There are moral and legal reasons for Hamundu to stay away from that tribunal. He is a personal friend of Kabimba; they were classmates at Kafue Boys secondary school and actually attended law school together at the University of Zambia.

We understand Hamaundu and Kabimba are very close family friends even up to day.

If Judge Hamaundu had any decency – respect for himself, or respect for ethics, he would not have accepted to be appointed to chair a tribunal to investigate a friend. He should declare interest and let other people handle that case. At least Judge Hamaundu should publicly respond to these charges. Let him deny that Kabimba is not his friend.

As things stand, whatever decision Judge Hamaundu’s tribunal will arrive at will be unconscionable and unsafe.  The decision will be open to challenge in a court of law under judicial review. This is because there is manifest procedural impropriety in the whole process.

Citizens can be excused for thinking that it was Kabimba who actually selected Hamaundu to chair the tribunal. Kabimba is the minister of Justice under which judges fall so he certainly had a hand in the selection of tribunal members. That is why he could not resign despite concerns from members of the public.

But we are not really bothered about Kabimba. Kabimba has no manners and we can’t expect him to be troubled by issues of professionalism. That is why his legal career has been a shame to say the least.

But for a career-lawyer like Hamaundu to sink so low after so many years of labouring to build his CV, it makes us want to shed tears for mother Zambia.

Just in case Hamaundu has forgotten why it is important for decision makers to be neutral, we shall explain to him. And since he is a qualified lawyer and judge, we shall explain to him in legal language.

Sir, we are sure you are familiar with this maxim nemo judex in causa sua potest? In English, it simply means that ‘no man should be a judge in his own cause’.

As you are very well aware your Lordship, ‘his own cause’ here is interpreted to include friends and family members.

The reason may sound simplistic but it is logical and valid. It is aimed at preventing bias, real or apparent.

When there is bias in decision-making, justice suffers because the role of the decision maker especially in judicial matters is that the arbiter should be neutral.

Let us by way of example explain to you what is meant by apparent bias.

Since you Zambian Judges religiously follow English judgements and apply them to matters in Zambian courts, we shall take you to England.

Are you aware of the seminal case of the House of Lords Re Pinochet –R v Bow Street Metropolitan Stipendiary Magistrate, Ex Parte Pinochet Ugarte (no 2) [1999] 1 All ER 577?

Here is a brief timeline.

Pinochet was a dictator who ruled Chile and during his reign, he committed crimes against humanity, including killing people when he was bored.

After losing power, he went to UK for medical treatment (They all do, these dictators). While in UK, he was arrested for crimes against Humanity at the instigation of Spain. A court in Spain wanted him to stand trial there.

Pinochet’s lawyers argued that he could not be arrested or tried in UK because as former president of a sovereignty state, he enjoyed immunity from acts he did while he was head of State. The lower courts in UK agreed with his contention. But the House of Lords (now the Supreme Court) In November 1998 said that immunity applied only to acts which international law recognised as being among the functions of a head of state. The House of Lords said those acts did not include torture or  taking hostages.

In short, the House of Lords said General Pinochet should be extradited to face trial in Spain for crimes against Humanity.

BUT, AND READ VERY CAREFULLY HERE YOUR HONOUR, Pinochet was not extradited to Spain because one of the Lords (judges) who made the decision to extradite him had an interest in this matter.

 Lord Hofman, one of the judges who ruled that General Pinochet should be extradited was the chairman and a director of Amnesty International Charity Limited, an entity owned by Amnesty International.

Amnesty International itself was pushing for the arrest of Pinochet.

So the decision of the House of Lords to extradite Pinochet was set aside by the House of Lords itself. At least the Judges there are willing to accept when they are wrong and take steps to address those wrongs.

What is important for you Judge Hamaundu to understand is that there was no suggestion that Lord Hoffmann was actually biased against Gen Pinochet.

Note that the entity Lord Hofman was chairing was just a branch of Amnesty International and he was not involved in its daily operations.

But his fellow Lords said he had an interest in the outcome of the proceedings and he was in effect, acting as a judge in his own cause. They said justice must not just be done but must be seen to be done.

Lord Browne-Wilkinson who read the decision of the court to set aside its earlier judgment explained what they meant by apparent bias.

‘As I have said, Senator Pinochet does not allege that Lord Hoffmann was in fact biased. The contention is that there was a real danger or reasonable apprehension or suspicion that Lord Hoffmann might have been biased, that is to say, it is alleged that there is an appearance of bias not actual bias.

‘The fundamental principle is that a man may not be a judge in his own cause. If a judge is in fact a party to the litigation or has a financial or proprietary interest in its outcome then he is indeed sitting as a judge in his own cause.

‘The second application of the principle is where a judge is not a party to the suit and does not have a financial interest in its outcome, but in some other way his conduct or behaviour may give rise to a suspicion that he is not impartial, for example because of his friendship with a party. This second type of case is not strictly speaking an application of the principle that a man must not be judge in his own cause, since the judge will not normally be himself benefiting, but providing a benefit for another by failing to be impartial.’

So, Judge Hamaundu, have you examined your conscious and agonised over this matter adequately?

Have you thought of your hitherto outstanding CV and how it shall be impaired by this one act of folly on your part?

In whose interest are you willing to sacrifice your morality and professionalism? Is it for Kabimba or money or both? Would you really go to that extent just to make sure you are confirmed as Supreme court Judge? Is being High Court or mere Supreme Court judge not good enough if you attained that position on merit? Have you been threatened that if you don’t cleanse Kabimba through this worthless tribunal you will lose your position as Supreme Court Judge?

Tell us because we do not understand your sudden stupidity.  Maybe this is how you really are, you have just been pretending?

Even at this late hour, we urge you to seek God’s guidance and go through the professional code of conduct. You may just come back to your senses for, to tell you the truth, the path you have taken is full of snares.

The country is watching.

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