E. Munshya, LLB (Hons), M.Div.
When President Sata established the Chikopa Tribunal to probe the conduct of Judge Mutuna and Judge Kajimanga, I vehemently objected to that action. My reasons for objecting were provided in the article published by the Daily Nation Newspaper and the http://www.eliasmunshya.org blog. I supported Justice Fulgence Chisanga when she stayed President Sata’s decision. This case, will be referred to as Mutuna I, and should not be confused with the other Mutuna case, which was heard by Justice Siavwapa. Justice Siavwapa has since issued his ruling in the Mutuna II case. In this article, I will not dwell on the Mutuna II case. Suffice here to mention that Mutuna II might be under appeal as the Attorney General has objected to the holding of Mr. Justice Siavwapa. Indeed, as and when the case of “Mutuna I” is overruled by the Supreme Court of Zambia, it remains good law. Justice Siavwapa needed to follow Mutuna I when he ruled for Judges Mutuna and Kajimanga in Mutuna II. But we should return to this case another day.
The Mutuna I case ended up in the Supreme Court of Zambia, where Acting Chief Justice Lombe Chibesakunda and her majority held that the President of Zambia does have unfettered powers under the constitution to suspend judges and establish a tribunal to probe their conduct (Article 98). It is this holding that I found quite offensive to say the least. At that time, I held and still do hold that the President of our republic, while being the Executive Head of our nation can not, or perhaps should not, have unfettered discretion or powers to suspend judges based on “information” that he alone receives (see Mutuna and others v. Attorney General, ). The chief reason why the President shouldn’t be given all this power is because of our constitutional doctrines of “separation of powers” and “judicial independence”. The power of the president to establish a tribunal to probe judges must be balanced by the doctrine of judicial independence so that the president is estopped from establishing tribunals in ways that erode this doctrine. This was the issue that the application (or trial) judge Madam Fulgence Chisanga had to resolve. There was no question about whether the President has the power to suspend the judges (Article 98 of the Constitution of Zambia), but rather how we must balance that power with the doctrine of judicial independence (Article 91 of the Constitution). So the issue was about whether we needed to use the Judicial Complaints Authority to deal with the Mutuna and Kajimanga complaints first in keeping with Article 91 before we use the President’s power in Article 98. Justice Chisanga gave a stay of proceedings and set a hearing date into these issues. However, the Supreme Court who stated that the President’s power to suspend and appoint a tribunal is sacrosanct overruled her. Even if I disagreed with the Supreme Court’s ruling, I still respect it as part of our present constitutional law.
Having regard to this background information about the Mutuna I case, can we say the same about the recent tribunal established to probe Mr. Mutembo Nchito? Mr. Nchito, after learning that he had been suspended by the President, rushed to the High Court to obtain a stay of proceedings of the tribunal. Justice Chitabo granted the stay and set the hearing date. It was only after the intervention of the Attorney General that Justice Chitabo reversed himself and quashed his stay. It appears that Mr. Nchito wanted to use the strategy and the arguments that Judge Mutuna and others had used. But the problems I find is that the two cases are quite different. In fact, the two cases are very dissimilar. What was at issue with Mutuna I was the “independence of the judiciary” from executive interference. The objection was reasonable, the president should not be seen to be interfering with the judiciary when the constitution has Article 91, which prescribes the route to be taken when dealing with an erring judicial officer. Regardless of how Mr. Nchito holds himself to be, with regard to the position of the Director of Public Prosecutions, our constitution does not provide that office with any elaborate way for dealing with complaints against the office of DPP. As such, while the DPP does have the security of tenure, she shouldn’t have the security against presidential suspension. There is no other doctrine upon which the DPP could challenge a presidential suspension or tribunal. The doctrine of separation of powers, applies to the judges, but it does not and cannot apply to the Director of Public of Prosecutions since the DPP is only but an arm of the administrative state. The DPP is an arm of the Executive and belongs to the Executive, there is no way a holder of that office should impose upon itself the doctrinal protections afforded only to the judiciary.
In fact taking this matter further, I find it quite anomalous that the Zambian constitution affords the DPP security of tenure. In many ways security of tenure has everything to do with shielding certain government officials from direct political accountability. Judges for an example do have security of tenure and consequently have no direct political accountability. However, all officers of the administrative state should not have any security of tenure because security of tenure has the potential to amputate such officers from the process of political accountability. The role of the DPP is to carry out prosecutions on behalf of the “people”. Isn’t it ridiculous that for the same people to remove this officer they must jump too many hoops? The role of Attorney General in fact has a larger public interest role than the DPP and yet she has no security of tenure under our constitution, why should the DPP have it? It is this limited security of tenure that made Bo Mutembo to make some decisions that went against common sense and the rule of law. Why wouldn’t he not issue a nolle in his own case if to remove him from office, we must first move mountains? Justice Chitabo was right to reverse himself over the matter. Mutembo should be able to appear before the tribunal and account for the serious allegations of unethical behavior and most probably crimes.