THE Lusaka High Court has ordered and restrained the Lovemore Chikopa-led tribunal from proceeding with its probe against former Supreme Court judge Phillip Musonda because he is no longer a judicial officer.
Acting Supreme Court judge Florence Lengalenga said proceeding to inquire into the alleged misconduct of Justice Musonda will be illegal because he resigned as a judicial officer and the tribunal was constituted to probe him while he was serving as a judge.
In 2012, President Sata suspended Justice Musonda and High Court judges Nigel Mutuna and Charles Kajimanga and appointed a tribunal to probe their alleged professional misconduct.
But last year, Justice Musonda resigned from the bench and commenced a judicial review challenging the tribunal’s insistence to probe him despite having stopped work as a Supreme Court judge.
In a judgment delivered yesterday, Justice Lengalenga, who is also acting Supreme Court judge, quashed the tribunal’s decision to probe Justice Musonda and restrained it from proceeding to further hear allegations levelled against him.
The former Supreme Court judge wanted the High Court to grant him an order of certiorari and prohibition against the tribunal’s decision to investigate him.
An order of certiorari is a writ seeking judicial review and it is issued by a superior court, directing a lower court, tribunal, or other public authority to send the record of a proceeding for review.
“I hereby grant the order sought as follows, an order of certiorari quashing the decisions of the tribunal delivered on June 18 and 28, 2013, respectively, for the tribunal to proceed with its hearing against the applicant [Justice Musonda] notwithstanding his resignation from office as Supreme Court judge,” she said.
Justice Lengalenga added: “I further grant an order of prohibition restraining the tribunal from acting outside or in excess of its jurisdiction by proceeding against the applicant when he is no longer a judicial officer.”
The judge further awarded costs to Justice Musonda to be taxed in default of agreement.
Justice Lengalenga granted both Justice Musonda and the Attorney General leave to appeal to the Supreme Court against her decision if they are not satisfied.
She said it is unfair and unjust for the State to use the tribunal as an example against would-be future misconduct by judicial officers because each case should be treated according to the facts and its own merits.
Justice Lengalenga said the tribunal’s mandate has already been achieved because Justice Musonda has pre-empted its recommendation by removing himself from the office by way of resignation.
She said inquiry into Justice Musonda’s alleged misconduct has been frustrated by his resignation because at the end of the investigation, the tribunal’s recommendation for the lifting of the suspension or removal from office would be ineffective against him.
“I am persuaded by the applicant’s arguments that his resignation from office as a Supreme Court judge placed him outside the tribunal’s jurisdiction under the constitution,” Justice Lengalenga said.
She wondered how Justice Musonda can be investigated as a private individual under the laws that relate to judges.
Zambia Daily Mail