By Elias Munshya, LLM. MBA, MDIV.
A lot has been said about this case. I will try to make it as plain simple as possible.
Magistrate Benjamin Mwelwa was hearing a criminal case. The parties were as follows: The People (represented by prosecutors from the Anti-Corruption Commission and the DPP), and the accused (represented by lawyers). In Zambia and elsewhere in the common law systems, lawyers are not parties to a matter. Lawyers are advocates for the parties. Magistrates and judges (the bench) in most circumstances know each other, could drink kachasu together, went to school together and they could be personal friends. There is no system in the common law world where a judge must recuse themselves because a lawyer is personally known to them. Lawyers are not parties to a matter. They are advocates.
In a criminal matter before a magistrate: both the state and the accused are equal before the court. The magistrate even if they are employees of the state (the judiciary), they are not under the auspices of the state (as prosecutors). Prosecutors should not think that they have a better status before a magistrate. The magistrate court is independent and does not do the bidding of the state as a matter of administrative convenience. The state must present their case before the magistrate and the magistrate is expected to make rulings according to the law and fact- both preliminary and substantive as the matter is ongoing.
In this case, the state appeared before the magistrate and they had a nolle prosequi to enter. I have no space to outline how nolles have become contentious in Zambia! The defendants in this matter contested the nolle. Good for them! They argued some novel point of law. Their argument was that under the new Constitution 2016, the DPP can’t just ambush parties in a criminal matter with a nolle. The DPP must provide reasons for their nolle, they argued. Magistrate Mwelwa heard both sides and realized that he could not answer the Constitutional question. Apparently in Zambia, when a magistrate determines that there is a constitutional question to be addressed, they must refer the matter to the Constitutional Court. That is exactly what Magistrate Mwelwa did. Who would fault him? I would do exactly that. He referred the question of the DPP’s nolle powers in view of Constitution 2016 to the Constitutional Court for determination.
Apparently, this irked the state’s prosecutors. They protested that the power of the DPP to enter a nolle is sacrosanct. However, instead of appealing that ruling; they instead complained to Magistrate Mwelwa’s administrative bosses! Here is the huge problem. State prosecutors should never be given this much power or right to complain against adjudicators in this manner. The ACC prosecutors complained that the magistrate should have entered the nolle without question. But as explained above, the magistrate had conflicting interpretations of Constitution 2016 before him. On one hand, the state said “we have the DPP’s nolle, accept it,” on the other hand, the accused said, “no way, there is a new constitution that has curtailed the DPP’s powers.” Magistrate Mwelwa acted very reasonably to refer this question to the Constitutional Court.
Suspension! After the prosecutors complained to the management of the judiciary, we are not sure if it was the Chief Justice they complained to or if it is Registrar Honourable Charles Kafunda. But anyway someone decided to write this magistrate and suspend him. Among reasons for suspension? Referring this question to the Constitutional Court for determination. This is not how the judiciary should be handling matters. The management should have made it clear to the state that they can either appeal Mwelwa’s ruling, or they should complain to the Judicial Service Commission or something like that. Parties to a matter should not be given the rights to circumvent judicial decisions by administrative actions. What the state failed before Mwelwa they could not achieve through the back door.
Magistrates should not fear administrative retaliation for judicial decisions. There must be a clear distinction drawn here. The fact that the ACC or the prosecutors have access to management in the judiciary should not be used to blackmail magistrates. Magistrates are particularly vulnerable because they do not have as much protection as enjoyed by judges of the superior courts. There was no way judiciary management was going to pull the same nonsense had this issue involved a High Court judge or a judge of a superior court. If you cannot have respect for small magistrates, you cannot have respect for the big fishes. Zambians cannot stand by while the judiciary erodes itself in their eyes.
The question that Magistrate Mwelwa had taken to the Constitutional Court has been addressed by the court. In fact, the Constitutional Court judges agreed with magistrate Mwelwa by holding that the question was properly before them and it was an important constitutional question. The majority in this ruling disagreed with the accused and upheld the state’s position that the DPP’s powers to enter a nolle cannot be challenged. The dissenting opinion of Judge Munalula is an opinion of the future. We will look at what Munalula said in her ruling later. But Judge Munalula ni nshimbi. No Size! (I am trying to be colloquial here).
The management of the judiciary now is coming up with fresh and new reasons why the suspension of the magistrate must be upheld. What is fundamentally offensive to constitutional order is the ambivalence that the judiciary management has towards the rule of law. Suspending a magistrate because the ACC has complained after losing a point of law they were arguing makes no sense! It is not right. It is tyranny.
We now understand that the Attorney General is the one to respond to any future challenge of Mr. Kafunda’s illegal letter. Public officers in Zambia, like the Chief Justice and the Registrar of the Judiciary, can do all they can, mess up and leave it all to the Attorney General to clean up and face questions. This particular mess is so important to our constitutional structure and we hope to litigate it before the courts, before the public, and before the politicians. We will not relent.
We are not trying to defend an incompetent magistrate. If Mwelwa is incompetent the Judicial Service Commission must provide reasons to fire him. But it is not incompetence to refer a question to the Constitutional Court for determination. Actually, it is incompetence for the judiciary to get a complaint from a losing litigant and use that to suspend a magistrate!
For now, we end here and we call upon all Zambians concerned about common sense and the rule of law to make it very clear to the judiciary. We support the judiciary. We support superior judges. But we also support small judges, the little magistrates out there who are doing all they can to keep the judiciary going. If we demoralize magistrates, there will not be any rule of law to uphold in Zambia. Magistrates are all over the nation, hearing matters every day. They are working in very difficult conditions and they do not have as much protection as the big fishes. Magistrates do not have to worry about what Honourable Kafunda thinks about their rulings. Mr. Kafunda’s duties are to provide magistrates with pens, pencils, clerks, benches and several utensils they need to serve our country.
As a side note, Chief Justice Mambilima must know that we are her partners in ensuring that our courts are independent. If she wants to continue being our partner, she is welcome to, but if she continues tolerating illegal acts from her management, the people of Zambia will make it very clear that our courts are sacred and we will defend them!
About the Author: A passionate defender of the rule of law, Elias Munshya is a pentecostal preacher, practicing civil litigation law at West End Legal Centre in Calgary, Alberta, Canada. He is a member of the Law Soceity of Alberta and holds several degrees in law (MBA, LLM, LLB), theology (BA, MA, MDIV), business (MBA) and counselling (MA).
Counsel, it is clear to me that your comments in this your article, demonstrate a fixed mind to attack the misguided action of the judiciary in placing Magistrate Mwelwa on suspension over a matter of law which occurred in the courtroom.
I agree with you entirely; there is no justification for Magistrates Welles’s suspension which, most likely, is illegal and which action is itself illegal.
As to the facts leading to the purported suspension of the Magistrate, your argument is false and lacks any merit, either at law and which I. Find to be deeply embarrassing, coming from a public spirited advocate of your calibre.
It is clear to me, at least, that in your quest to defend the hapless magistrate, you are not prepared to acknowledge the facts, which are simply that there was no constitutional question to be referred to the Constitutional Court. None whatsoever.
1. You claim, in carefully couched third-person terms, that the defence challenged the Director of Public Prosecutions’ decision to enter a Nolle Prosecqui in the case. You put it this:
“Their argument was that under the new Constitution 2016, the DPP can’t just ambush parties in a criminal matter with a nolle. The DPP must provide reasons for their nolle, they argued. Magistrate Mwelwa heard both sides and realized that he could not answer the Constitutional question. Apparently in Zambia, when a magistrate determines that there is a constitutional question to be addressed, they must refer the matter to the Constitutional Court. That is exactly what Magistrate Mwelwa did. Who would fault him? I would do exactly that. He referred the question of the DPP’s nolle powers in view of Constitution 2016 to the Constitutional Court for determination”.
There are three (3) blatant falsehoods in your one passage.
a) you claim that under the Constitution of Zambia, 2016 the DPP “cannot just ambush parties in a criminal matter with a Nolle. The DPP must give reasons for their nolle……”.
This is utterly and absolutely false. Your use of the words “….they argued”, is a dishonest attempt on your part to deflect this blatant falsehood from yourself to your equally dishonest defence counsel in the matter.
Article 180(4)(c) of the Constitution of Zambia 2016, states as follows:
(4)The Director of Public Prosecutions may:-
(c) discontinue, at any stage before judgment is delivered, criminal proceedings instituted or undertaken by the Director of Public Prosecutions or another person or authority.”
Kindly show me the words “the DPP must give advance notice of his intention to enter a Nolle Prosecqui, and must also give his reasons therefore”.
You cannot escape being called a false prophet by suggesting that you were merely quoting the defence in the case, in their objection to the entry of a Nolle prosecqui by the DPP. You are a lawyer and in your public duty to inform and educate, you must refer to the law, not falsehoods advanced by your fellow lawyers in the case at issue.
The power of the DPP to enter a Nolle Prosecqui at any stage of s case before judgment, in limited only in cases of appeal, or if the case was instituted at the instance of another person.
Art. 180(6) states as follows:
“(6) The power conferred on the Director of Public Prosecutions under clause (4)(c) shall not be exercised in relation to an appeal by a convicted person, a case stated or a question of law reserved at the instance of that person.”
I have read Magistrate Mwelawa’s ruling; there is no indication therein, that the case at issue,and therefore the objection by the defence to the DPP’s decision to enter a Nolle Prosecqui, fell under Article 180(6) of the Constitution.
What then, was the question to be referred to the Constitution Court? There can be no doubt that the power of the DPP to enter a Nolle Prosecqui in this case, is unquestionable, by this or any other court. Your argument, therefore, is false. The initial objection of the defence in the case, was utterly dishonest and their argument, equally false.
As to the law, it is my humble opinion, and I speak as a layman, that once the DPP makes application to the court to enter a Nolle Prosecqui, it is done. There is nothing for the court to consider and no ruling to be made. The case is closed.
It follows, surely, that any question arising after the Nolle Prosecqui is entered, is moot; it is fit only for academic speculation or bar room discussion.
A criminal case in which the DPP enters a Nolle Prosecqui, is dead. It cannot be continued by any other means or device, and Magistrate Mwelawa’s pretence that he had power to rule upon the validity of a Nolle Prosecqui, once entered, speaks to the paucity of the bench at the subordinate court level. Surely not!
In Nigeria, in The State v Ilori  1 SCNLR 94.
Justice Kayode Eso, who delivered the leading judgment, set out the following statement, which remains the law till date (at page 106):
“The pre-eminent and incontestable position of the Attorney-General, under the common law, as the chief law officer of the State, either generally as a legal adviser or specially in all court proceedings to which the State is a party, has long been recognised by the courts. In regard to these powers, and subject only to ultimate control by public opinion and that of Parliament or the Legislature, the Attorney-General has, at com¬mon law, been a master unto himself, law unto himself and under no control whatsoever, judicial or otherwise, vis-a-vis his powers of instituting or discontinuing criminal proceedings. These powers of the Attorney-General are not confined to cases where the State is a party. In the exercise of his powers to discontinue a criminal case or to enter a nolle prosequi, he can extend this to cases instituted by any other person or authority. This is a power vested in the Attorney-General by the common law and it is not subject to review by any court of law. It is, no doubt, a great ministerial prerogative coupled with grave responsibilities.”
The Constitution of Zambia 2016 does place a limit on this power as I have already stated above, in Art. 180(6). But the general principle is clear, which makes your argument false.
Here in Zambia, in the case brought by a citizen, Mr. Newton Ng’uni against then Director of Public Prosecutions Mutembo Nchito SC, Magistrate Lsmeck Mwale had the following to say:
“The Lusaka Magistrate has sustained the nolle prosequi entered by Director of Public Prosecution Mutembo Nchito on 20th February this year.
When the matter came up before Lusaka Magistrate Lameck Mwale Monday morning, Magistrate Mwale told the court that after considering the matter, he is of the view that the DPP has power to discontinue the case even when he is the accused.
Magistrate Mwale therefore allowed the case to be discontinued as the matter was not an exception due to the powers vested in the DPP by the Constitution.
And in interviews with Journalists outside court, Nchito reluctantly said the law had to be followed.”
A case which is stopped by the DPP by way of a Nolle Prosecqui, is incapable of raising constitutional or any other issues, because there is no longer a case before the court. The court cannot refer to a superior court, a matter which is not before it.
In Magistrate Mwelawa’s own words, he was staying the matter pending consideration by the Constitutional court, of issues raised by the defence.
This was a complete fallacy; one cannot raise issues on a case which had been withdrawn and was no longer before the court.
I hope that we are now on the same page.
Well articulated sir and I agree with your reasoning
You are on firm ground here sir and if it requires money to follow through on this we are ready to donate. Kindly inform us how we can donate.
The judiciary in Zambia has generally been disappointing in upholding the rule of law especially when it comes to holding the executive branch to account and any action that cajoles them into realising thus role must ve supported