THE High Court has lifted a stay which halted the setting up of a tribunal to probe Minister of Tourism and Arts Sylvia Masebo’s alleged professional misconduct.
This is in a matter in which former Minister of Transport and Communication William Harrington applied for judicial review of the State’s decision refusing to set up a tribunal to probe Ms Masebo’s alleged professional misconduct.
The High Court, upon hearing the judicial review, refused to give an order to acting Chief Justice Lombe Chibesakunda to appoint a tribunal.
The court also refused to grant an order of certiorari (writ seeking judicial review) to remove in the court the decision of the acting Chief Justice to refuse to appoint a tribunal to investigate allegations against Ms Masebo for the purpose of quashing it.
The court, instead, made a declaration that the applicant was entitled to be heard by a tribunal in accordance with the law.
The State applied for a stay of execution of the court’s decision pending determination by the Supreme Court, which was granted.
Mr Harrington said judgment could not be stayed in the manner the State sought, saying the judgment was declaratory in nature.
He argued that the court did not order the acting Chief Justice to set up a tribunal but that she did so on her own accord.
“The court did not grant the orders of certiorari nor mandamus that the applicant sought. This court did not order the acting Chief Justice to appoint a tribunal but that the acting Chief Justice did so on her own volition,” Mr Harrington said.
The State, however, contended that a tribunal was made pursuant to the court’s declaratory judgment notwithstanding that the court did not order the acting Chief Justice to constitute a tribunal.
It argued that if the stay was lifted, then the declaration made in the judgment would be moved to constitute a tribunal to probe Ms Masebo and that the appeal to the Supreme Court would be rendered irrelevant and an academic exercise.
High Court judge Dominic Sichinga said a declaration is a formal statement, proclamation or announcement and that a declaration sets out what the law is or the rights of the party.
Justice Sichinga said a stay temporarily halts or pauses proceedings which can be granted for various reasons and is normally lifted once the reason no longer applies.
He said a stay of execution of judgment was granted pending the outcome of the appeal to the Supreme Court and that the stay was granted in the view that no further steps would be taken.
“The State has argued that if the judgment is not stayed, the appeal would be rendered nugatory and an academic exercise. I do not find this ground sufficient or good and convincing to maintain the status quo,” he said
He said the tribunal was constituted by the acting Chief Justice three days after a stay was granted.
“In my consideration, this seems to suggest that the application for a stay should perhaps have been made ab initio [from the beginning] before the appellate court since this court made the declaratory judgment now being appealed against,” Justice Sichinga said.