CANADA based Barrister and Solicitor Elias Munshya has asked the judiciary to stop illegal and illogical acts that betray the constitutional and legal order of the country. And Munshya has given the judiciary a 60-day ultimatum in which to withdraw the suspension of Livingstone magistrate Benjamin Mwelwa and lawyer Gilbert Phiri or he will take legel action against it.
In a letter to Chief Justice Irene Mambilima dated September 12, 2017, Munshya strongly disagreed with the judiciary’s suspension of magistrate Mwelwa and the barring of lawyer Gilbert Phiri from appearing before any court.
The barring of Phiri, who was one of UPND leader Hakainde Hichilem’a lawyers in the treason case, followed his public criticism of the judiciary’s ban on people carrying their phones and recorders inside the courtroom where the opposition leader was to be tried.
Munshya, in his letter, stated that abuse of the law while trying to enforce the law was still abuse.
“As citizens, we have a duty to hold all arms of government accountable and I hope you will pay due attention to this letter,” Munshya stated.
“The Judiciary suspended Honourable B. Mwelwa, a class 2 magistrate from Livingstone, for referring the matter he was hearing to the Constitutional Court for determination of what he believed to be a constitutional question. The question was whether Constitution 2016 had changed the Director of Public Prosecutions’ prerogative to enter a nolle prosequi. Apparently, your management did not take kindly to this and you suspended the magistrate while the matter was still being heard.”
He called the action illegal.
“If this suspension is tolerated, it will erode confidence in our judiciary and magistrates will fear administrative retaliation if they ruled in a manner that goes against the wishes of management,”
“Zambians adjudicators do not awe a duty to decide cases according to the wishes of the State, be it the executive, the legislature or the judiciary. They owe the duty to the people, to act fairly and reasonably.”
Munshya told justice Mambilima that the judiciary was not above the law and neither was she. He stated that the judiciary management could not be seen to be interfering in matters before court.
“If Mr Mwelwa has committed a crime or has done anything that deserves sanction, you would be justified in following appropriate legislation to discipline magistrates. When a magistrate gets a ruling wrong, correction can be done through appeal to the higher court and not suspension. The Constitutional Court seems to have vindicated the magistrate after ruling on the question,”
“There is another matter of notorious concern. A few mothers ago, the judiciary in a statement from Honourable Charles Kafunda, claimed to suspend a lawyer from appearing before the courts of law until he had been disciplined. Lawyers in Zambia are not officers of the judiciary and they are not amenable to the judiciary’s disciplinary procedures.”
He stated that lawyers belonged to a self-governing and self-disciplining profession and that all discipline must be channeled through the Law Association of Zambia in accordance with both the Law Association of Zambia Act, the Legal Practitioners Act and appropriate regulations.
“Our common law does allow for a sitting judge to discipline lawyers appearing before her but it defies both logic and the law that the judiciary would suspend a lawyer from appearing before all courts in this manner,” Munshya stated.
“The rule of law is at stake here and a corrective action need to be taken to redeem our judiciary in which all Zambians hold a stake. It would betray a fundamental character of our profession if lawyers will cease to be self-disciplining and become an extension of the State through the judiciary. The judiciary had enough officers; clerks, magistrates, judges and other workers to worry about and should not spread its tentacles to direct disciplining of lawyers. Honourable Kafunda’s letter purporting to suspend lawyer Gilbert Phiri from appearing before judges is illegal. Tolerating this letter will interfere with the profession’s independence from the State.”
He stated that in view of the above, he was giving the judiciary 60 days to forthwith rescind the suspension of magistrate Mwelwa as it was illegal and unconstitutional. He also asked the judiciary to restore lawyer Phiri’s appearance privileges and have him disciplined through legal channels.
Munshya also asked the judiciary to cease illegal and illogical acts that would betray the constitutional and legal order of the country.
“If I do not hear from you within 60 days, I will invoke our constitution’s public standing privilege, retain counsel, and sue you and the judiciary. Considering the constitutional impact of these matters, both the Attorney General of Zambia and the Minister of Justice will be enjoined to the suit,”
“It is my hope, however, that you will govern rightly as you have always done and help restore confidence in the people’s judiciary.”
Munshya stated that Zambians must unequivocally support justice Mambilima’s gallant effort to fight corruption within the judiciary. However, Munshya stated that any efforts to fight corruption in the judiciary’s ranks must be done in a way that inspired confidence and followed the letter and spirit of the law.