Zambia Daily Mail by Online Editor on 6/8/13
By CHARLES MUSONDA
SUSPENDED Supreme Court Judge Phillip Musonda has resigned.
Judge Musonda says his departure from the Bench has become inevitable.
Last year, President Sata rejected Justice Musonda’s request to resign after the President suspended him along with High Court Judges Nigel Mutuna and Charles Kajimanga over alleged professional misconduct.
This is in a civil case involving Development Bank of Zambia as complainant and the Post Newspapers Limited, Mutembo Nchito, and JNC Holdings Limited as defendants.
Mr Sata said he will only consider Justice Musonda’s application after the tribunal appointed to probe the trio’s alleged professional misconduct has concluded its work.
In a letter dated June 4, 2013 to the President, Justice Musonda says staying on at the Supreme Court will be discomforting to him and his colleagues; and is therefore not feasible.
“I do not wish to contest my continued stay in court or in the tribunal. I wish to thank you for having given me the opportunity to serve as a Supreme Court judge during the tenure of your Presidency. I thank the acting Chief Justice, Acting Deputy Chief Justice and my colleagues on the court for the co-operation and guidance they gave me.
“I have spent 32 years and four months in the Judiciary – 12 years and four months as judge. I was appointed judge of the Industrial Relations Court on February 7, 2001, High Court Judge on August 2, 2002, and Supreme Court on May 5, 2011,” Justice Musonda’s letter reads in part.
He adds: “It is in light of this that I humbly request and pray that Your Excellency exercises statutory powers and discretion as determinant of conditions of service for serving Judges and those departing to allow me to be retired in national interest as I have almost reached retirement age at 62.”
President Sata has yet to respond to Justice Musonda’s request.
Justice Musonda says former Chief Justice Annel Silungwe was post-departure retired and accorded a retired Judge’s conditions of service.
“Your Excellence, as the fountain of justice, look at my service, additionally my wife has just returned from major surgery in India, which needs my constant attention…I leave with no bitterness against anyone as that would be uncChristian. Should my services be required in any area, I am available to serve my country,” he adds.
Since its appointment in May last year, the tribunal, which comprises Malawi High Court judge Justice Lovemore Chikopa as chairman, retired JJudges Thomas Ndhlovu and Naboth Mwanza as members, and Chipili Katunasa as secretary, has never sat.
This is because after their suspension, the three judges sought and were granted leave for judicial review by High Court Judge Fulgence Chisanga against President Sata’s decision to appoint the tribunal to investigate them.
But Attorney-General Mumba Malila appealed against Justice Chisanga’s ruling and last month the Supreme Court ruled: “We hold the view that looking at the provision of Article 98, there were sufficient arguments and law presented before the lower court for the lower court to have held that there was no illegality as the powers vested in the President under Article 98 (2) (3) and (5) supported the exercise by the President.
“We are satisfied that His Excellency exercised his powers vested in him pursuant to Article 98(3) and (5) in accordance with his primary functions as Head of State under Article 44 as read with Article 33. We hold, therefore, that it was a misdirection to hold or even suggest that there were questions still to be responded to at the main judicial review inquiry. We hold that the President did not usurp the powers of the Judicial Complaints Authority or those of the Chief Justice.”
However, the court added: “Before we end, we want to state that although we agree that the President in exercising the powers vested in him under Article 98 has unfettered discretion under the said Article, we nonetheless believe that it would be advisable, considering circumstances of this matter, for the tribunal not to proceed.”
Last week Ndola High Court Judge Mwiinde Siavwapa granted Justice Mutuna and Justice Kajimanga an application to commence judicial review challenging the legality of the tribunal. This will also act as a stay of the tribunal proceedings, which were scheduled to start on June 18 this year.