JUDICIAL independence is compromised by acts of the judiciary itself, says Isaac Mwanza.
In a write-up, Mwanza, the Young African Leaders’ Initiative governance advisor, stated that the Judicial Complaints Commission should have investigated and recommended for removal High Court registrar Charles Kafunda for suspending Second Class magistrate from Livingstone, Benjamin Mwelwa, for referring a constitutional interpretation question to the Higher court.
Mwanza was commenting on a letter to Chief Justice Irene Mambilima from Canada based-Zambian lawyer, Elias Munshya, on the suspension of magistrate Mwelwa. He wondered who would defend the Constitution from being raped apart and who will defend magistrates from abuse of power by senior judicial officers.
On August 9, 2017, Kafunda suspended magistrate Mwelwa for referring a matter to the Constitutional Court when an interpretation was sought by a party on the provisions of the law regarding the entry of a Nolle Prosequi by Director of Public Prosecutions (DPP).
Mwanza stated that the Constitutional Court had since found that the application raised important constitutional issues as per majority and dissenting judgment of the Constitutional Court. He stated that there was something terribly wrong with the suspension of magistrate Mwelwa.
He stated that in a country where the rule of law was respected and institutions acted independently, then Kafunda, who is a judicial officer, should have been investigated by a Judicial Complaints Commission (JCC) for his conduct and recommended for removal.
“But this won’t happen because the authorities will decide to keep a blind eye to violations of the Judicial Code of Conduct by Registrar Kafunda and the JCC is still limping or trying to find its feet in discharging its mandate. Let me explain,”
Mwanza explained that the JCC was a constitutional body that had been given mandate to initiate its own investigation into the conduct of judicial officers and judges, apart from it receiving complaints from members of the public.
“This power, the JCC, it appears, is not ready to exercise and would rather watch judicial officers violating the Judicial Code with impunity,” Mwanza stated.
“In a society where the law is respected, Registrar Kafunda should have been asked to show cause why he must not be investigated for his acts which contravened Section 3 of Judicial Code of Conduct.”
He quoted section three of the Judicial Code of Conduct, which states that, “A judicial officer shall uphold the integrity, independence and impartiality of the judicature in accordance with the constitution, this Act or any other law.”
Mwanza wondered whether Kafunda upheld the integrity, independence and impartiality of the court by slapping on the person presiding over it with a suspension for referring the matter to the court with competent jurisdiction to make a determination.
He stated that the authorities must worry themselves over where Kafunda drew his power to suspend judicial officers.
“Has Registrar Kafunda abused powers under the Judicial Service Commission Regulations, 1998 (S.I. No. 8) to suspend judicial officers? Section 34 of the Judicial Service Commission Regulations, 1998 (S.I. No. 8) provides as follows: 34. (1) The Chief Administrator may suspend a judicial officer from the exercise of the powers and functions of the officer’s office if satisfied that – (a) the public interest so requires; (b) criminal proceedings have been instituted against the judicial officer; or (c) disciplinary proceedings for the dismissal of the judicial officer have been or are about to be instituted against the officer’,”
“(2) Whenever the Chief Administrator suspends a judicial officer under this regulation, the Chief Administrator shall notify the judicial officer in writing of the reasons thereof and shall forward a copy of the notice to the Commission for record purposes.’ The question is where has Mr Charles Kafunda, as Registrar, drawn his powers to suspend judicial officers and why has the Chief Justice, Honourable Irene Mambilima, and the Judicial Commission, allowed him to exercise the power which the law does not vest in him?”
He stated that the bigger question was whether a magistrate could be suspended for refusing to interpret the Constitution when question arises and whether reference of the matter to the Constitution Court attracts suspension.
Mwanza quoted Section 55 of the Subordinate Court Act, Chapter 28 of the Laws of Zambia, which states that “No action shall be brought against any magistrate in respect of any act done or order made by him in good faith in the execution or supposed execution of the powers and jurisdiction vested in him.”
“With such clear provision of the law, isn’t Registrar Kafunda in violation of the law by taking an action based on the acts of the magistrate to refer a constitutional question for interpretation of a superior court?”
Quoting Article 122 clause 2 of the Constitution, which states that a person…shall not interfere with the performance of a judicial function by a judge or judicial officer, Mwanza asked whether Kafunda’s action was not interference in the work of a magistrate (a judicial officer) in the performance of his duties.
He asked who was behind Kafunda’s letter suspending a magistrate for referring a case to the Constitutional Court in line with provisions of the supreme law of this land.
“I am hesitant to report Registrar Kafunda to the Judicial Commission for one reason because it seems Registrar Kafunda was clever when he authored his letter by stating, ‘management has deemed it necessary that disciplinary action be instituted against you in relation to your competence or any other facet of misconduct that may be revealed by your conduct of the case in issue…’”
“The Registrar was merely trying to say, ‘it’s not me but its management interfering in the performance of your duties.’ So who is really part of this management? However, this Registrar Kafunda may not run away from his act to suspend a magistrate when he wrote: ‘In the meantime, I find it necessary that you be placed on immediate suspension pending the outcome of the disciplinary process.’ Where did he draw this power to suspend a magistrate for refusing to interpret the Constitution and referring the same to the Constitutional Court?”
He stated that if magistrate Mwelwa did commit any other offense before the letter of August 9, 2016, which led to his suspension, he must be answerable and not shielded for his conduct.
Mwanza stated that if the matter was about reference of the case to the Constitutional Court, then magistrates must be extremely careful with the way they perform their duties because Registrar Kafunda would always be on them.
“I want to remind our magistrates across the country of what Martin Niemöller, a prominent Protestant pastor who spent the last seven years of Nazi rule in concentration camps said: First they came for the Socialists, and I did not speak out— Because I was not a Socialist. Then they came for the Trade Unionists, and I did not speak out— Because I was not a Trade Unionist. Then they came for the Jews, and I did not speak out— Because I was not a Jew. Then they came for me —and there was no one left to speak for me’,”
“These happenings in judiciary are meant to send a word to magistrates to always watch their shoulders and back because Registrar Kafunda doesn’t like magistrates with a Pilate attitude of washing off their hands in matters which are beyond their jurisdiction. The new version of judicial independence require that magistrates must now call Mr Kafunda to consult him before making a judgment or ruling. This is the kind of judicial independence known to our senior judicial officers even when they say judicial officers freely exercise their independence.”