A PERSON calling himself a private citizen has lodged a complaint to the Judicial Complaints Commission against Choma magistrate Exnorbit Zulu following his order to have Dr Simon Miti arrested for corruption allegations raised at the time he was health permanent secretary.
And former PF Lusaka Province youth chairperson Kennedy Kamba has claimed that Dr Miti, who is President Edgar Lungu’s principal private secretary, is innocent.
In a letter to the Judicial Complaints Commission chairperson, Marvin Chanda Mberi, who gave his address as 44 Nyati Street, Site and Service, Twatasha, Chingola, had accused magistrate Zulu of professional misconduct in the way he conducted himself in the case of Henry Kapoko and four others.
Mberi has asked the JCC to suspend magistrate Zulu.
“I write to your high office to express my displeasure against the Learned Magistrate, His Worship (sic) Exnorbit Zulu during the course of delivering judgement at Lusaka in Lusaka District as per the above cited case. The brief background of this case is that the named Magistrate on 2nd August, 2018 whilst delivering judgment in which one Henry Kapoko was convicted and sentenced to a term of eighteen years in prison for theft of over Six Million, Eight Hundred Kwacha (K6.8 Million) public money when they were employees of the Ministry at the time Health….” reads the letter.
“The Magistrate ostensibly did proceed to make an order for the arrest of the then key state witness who is now State House Principal Private Secretary a Dr Simon Miti to answer the alleged corruption related charges brought out at the time he served as Permanent Secretary. Additionally, he claimed that Dr Miti was aware of what was transpiring in the Ministry [but] he feigned ‘ignorance’ and that he was an accomplice who had an interest to serve. I’m fortified by the provisions of Article 2 of the Constitution and for the purposes of convenience, the portion(s) are reproduced and provides as quoted herein below: 2. ‘Every person has the right and duty to –
(a) defend this Constitution; and
(b) Resist or prevent a person from overthrowing, suspending or illegally abrogating this Constitution.’ Further, Article 118 (1) of the Constitution which entrenches the principles governing judicial proceedings in clear and unambiguous terms profess to state clear that the judicial functions are to be exercised within the ambit of justice and the people of Zambia are reserved with the exclusive and inherent right to hold the Judiciary accountable…” Mberi said.
“Without prejudice and with respect to their independence in the course of delivering judgments, the magistrates or judges are required strictly to confine themselves on the indictment and it is not procedurally provided for them to discuss matters outside the indictment,” he said.
Mberi said it was inconceivable to assume that the legislature intended that the magistrate or presiding officer could have all the liberty to make adverse proclamations against an individual who was not indicted before court.
He said there was no identifiable authority justifying any act by a court to blow the trumpet in regard to any act that ought to be prosecuted.
He said proceedings could only be commenced following an arrest without a warrant and complaint before the magistrate having jurisdiction and not at the instance or the directive from the court save for the contempt, which is committed in the face of the court.
“Any act done to the contrary would unavoidably lead to the regrettable miscarriage of justice,” Mberi said.
“In order to preserve an apprehension of impartiality, the judicial officer is required to refrain from any act that would be calculated to have an apprehension of subjectivity. It is thus expected to separate investigative or prosecutorial with concurring adjudicative functions. In the jurisprudence of criminal justice system on the society that thrives on the adversarial system, the Judiciary inclusive of any judicial officer is bound to play a reactive and proactive role in so far as the commencement of proceedings is concerned. It is thus not procedurally correct for the court to incite an arrest of any person who is likely to be the party to the proceedings. It is acts of this nature which compel members of the public to invalidate the trust reposed in the particular judicial officer and the Judiciary at large.”
Mberi said magistrate Zulu’s pronouncement to possibly arrest Dr Miti was legally flawed and prejudicial to the interest of justice.
He said magistrate Zulu’s order also undermined the integrity of the judicial process.
He imputed “malice” and “gross misconduct” on the part of magistrate Zulu.
“In light of the above, it is my considered view that there is a prima facie case of professional misconduct and incompetence in Honorable Zulu as that did not only constitute a misdirection on his part but neglect to follow the laid down rules of criminal procedure,” Mberi said. “It is further my considered view that this grave error relating to the basic rules related to criminal proceedings, seemingly depict representation of acts of bias and impropriety which should be redressible by initiating the complaint before your Commission. It is against this background that I seek the indulgence of your high office and the Commission at large to take necessary actions and therewith institute an inquiry to hear the allegations raised therein. It is further my humble plea that on receipt of this letter, the said officer be suspended from performing his duties until this matter has been settled or in the likely event the complaint abandoned. It is my belief that the expedient act will help in preserving the integrity of the judicial process thereby upholding public confidence in the Judiciary.”
And Kamba stated that civil society organisations commenting on PF media director Sunday Chanda’s recent attacks on magistrate Zulu and the judiciary were not only misleading themselves but also have their facts twisted.
Nine CSOs have asked Chief Justice Irene Mambilima to investigate Chanda following his attack on magistrate Zulu.
In their joint letter signed by Alliance for Community Action executive director Laura Miti, the organisations requested the head of the Judiciary to act on the assault on the judiciary and magistrate Zulu.
They stated that following the Supreme Court of Zambia’s recent citing of Chikondi Foundation president Bishop John H Mambo, and Mr Gregory Chifire for contempt of court for commenting on a court judgment in the matter of Savenda Management Services Vs Stanbic Bank Limited, a matter that had been duly disposed of, they were of the view that a precedent had been set in which individuals who comment on matters that have been disposed of, or in court, will be cited for contempt of court.
“While we, as CSOs, have always been of the view that once a case is disposed of, it is no longer subjudice and therefore those who comment on it are not in contempt of court, we are convinced that the direction the highest court in the land has taken in the Savenda Management Services and Stanbic Bank Limited case must be seen to be applied fairly, until clarity on what constitutes contempt of court is achieved. The statement we bring to your attention attacks the judgment delivered on the Henry Kapoko case by magistrate Zulu and the magistrate himself.”
But Kamba yesterday, in an uncharacteristic tone and style attacked the nine organisations as ‘uncivil’ ‘choir’.
“We wish to make a comment or two that there is an unholy alliance of the two-faced grouping that perpetually convene workshops in luxurious places while they pretend to be concerned about the underprivileged. They drive fancy cars, live the life of riley and spend days on end looking for something to do to attract funding from outside the country. They are deliberately misleading themselves to push the envelope and give themselves some modicum of credibility and viability in the eyes of their donors,” alleged Kamba in a statement. “They become sore with boredom as they drink tea and sigh sorely as they swivel. They are the swivelling society; going round and round in circles pursuing relevance. A number of Civil Society Organisations (CSOs) have also got their facts twisted in their efforts to place comments on the [Henry] Kapoko judgment in the same basket as Bishop John Mambo’s contempt of court case. A reminder to our CSO friends – It is irrational to compare lemons with apples. But it is very logical to compare apples with apples or lemons with lemons.”
Kamba stated that under qualified privilege, a judgment after it had been passed could be criticised and that there was nothing criminal about commenting on the judgment.
“A reminder of [Hakainde] Hichilema’s innumerable scurrilous attacks on the judiciary and the duplicitous silence of civil society regarding the same: While we’re still on memory lane, let’s revisit the numerous vicious and often personal attacks of UPND leader Hakainde Hichilema on the judiciary. Where were the Civil Society Organisations hiding when Hichilema consistently made a sport of tearing down the judiciary, undressing judges of the Constitutional Court, labelling them corrupt and all manner of colourful adjectives? Where were they when Hakainde viciously assaulted the personalities of judges Annie Sitali, Palan Mulonda and Mungeni Mulenga labelling them corrupt?” Kamba asked. “Where was the ‘civil society’ choir that is today being conducted by a foreigner in singing their off key contempt chorus? Did they all lose their tongues? It was only the Law Association of Zambia (LAZ) that put Hakainde in his place. The rest were thunderously quite. Where were they and where have they been during the frequent times sour faced Hichilema has verbally brutalised judge [Mwila] Chitabo – a judge who in more recent times has not been spared by the corrosive tongue of the UPND leader? What a two-faced lot they are! – displaying double standards with forked tongues!”
Kamba challenged the ‘uncivil society’ to respond to the questions Chanda raised in his article regarding the judgment.
“…so that perhaps the assimilation challenged Mike Isaiah Mulongoti, as well as some overly eager beavers in ‘Civil Society’ can learn something regarding comments on the Kapoko judgment: As it is, Dr [Simon] Miti has already been pronounced guilty by a judgment without any charges or any trial; As a state witness he has been convicted with those who were convicted; Where are the charges which the magistrate wants Dr. Miti to answer to? Who prosecuted Dr. Miti? Who was his defence counsel?” Kamba asked. “As a state witness, Dr Miti appeared before the magistrate and two or three others in this particular case. Isn’t it strange that the magistrate at the time didn’t see the need for Dr Miti to be cross-examined on issues he’s never been charged for? How can a state witness be turned into a subject of conviction by a magistrate? Dr Miti has never been cited nor has he ever appeared before court as the accused, so how did the magistrate judge him? Where are the sacred rules of natural justice? When has a judge ever directed who and should not be prosecuted; Remember the Michael Mabenga ‘case’?”
Commenting on State House’s “no position” comment on the Lusaka Magistrates’ Court order that President Edgar Lungu’s principle private secretary Dr Miti should have his day in court over the theft of public funds from the Ministry of Health at the he was permanent secretary, the People’s party leader Mulongoti said the Head of State was a culprit of a number of felonies.
And Kamba stated that former secretary to the cabinet Sketchly Sacika knew that Dr Miti had no charges before any investigative wings.
Sacika had said Dr Miti should not be shielded if he was guilty.
“Now gently getting back to delicately holding our senior citizen’s hand; Dr Sacika knows that Dr. Simon Miti has no charges before any investigative wings and that the Principal Private Secretary doesn’t have any case before any courts whatsoever. Isn’t it therefore deviously mischievous that a man of his stature should carelessly and publicly say Dr Miti should not be shielded ‘If’ he’s guilty? As it turns out, it is actually Dr Sacika, Mulongoti and cronies together with political elements in civil society that have been shielding the vicious attacks of a grumpy opposition leader on the judiciary,” stated Kamba. “But then, that may not be so surprising- like the old adage goes ‘Birds of a feather stick together’ but more significantly: Age does not always connote maturity; and grey hair doesn’t always imply wisdom as Mulongoti has proved – just as civil society isn’t always civil.”