TWO University of Zambia law lecturers have argued that chief justice Irene Mambilima is protecting liable ministers by refusing to constitute a tribunal to investigate them.
On January 13 this year, Chapter One Foundation wrote to justice Mambilima asking her to establish a tribunal to investigate ministers who had not been declaring their assets annually as provided for in the Parliamentary and Ministerial Code of Conduct.
But justice Mambilima later refused to do so in a letter dated February 11, arguing that she was restrained by Article 263 of the Constitution which provides that “a person holding a public office shall, before assuming office or leaving office, make a declaration of their assets and liabilities, as prescribed.”
However, in an analysis of justice Mambilima’s reasoning titled: Why is Chief Justice Irene Mambilima shielding the misconduct of ministers, Dr O’Brien Kaaba and Felicity Kayumba Kalunga contend that the Chief Justice veered off her powers.
“We disagree with the decision and legally defective reasoning of the Chief Justice for at least three reasons. Firstly, the Chief Justice has no power under section 13 of the Parliamentary and Ministerial Code of Conduct Act to investigate the allegations and let alone determine the complaint on its merits,” they write. “Secondly, in her efforts to determine the complaint on the merits, the Chief Justice ventured into constitutional interpretation with the effect of rendering a statutory provision unconstitutional, thereby unconstitutionally usurping the jurisdiction of the Constitutional Court. Thirdly, justice Mambilima’s interpretation of the Constitution vis-a-vis section 10 of the Act flies in the face of well-known and established principles of constitutional and statutory interpretation.”
The duo argued that going by legal provisions, it was difficult to understand justice Mambilima’s reasoning.
“It is therefore incredibly difficult to appreciate the reasoning behind the Chief Justice’s decision in this matter. To have followed the mandatory provisions of section 13(3) of the Act and established a tribunal to investigate the allegations of misconduct by ministers presented the simplest and clearest option in this case,” they contend. “Instead, the Chief Justice chose to act as a highly problematic gatekeeper, one who blatantly disregards statutory provisions and violates well-known principles regulating constitutional and statutory interpretation. One would not be faulted for thinking that the Chief Justice went to great lengths to shield the liable ministers from being investigated by a tribunal as prescribed by law. The question is: why?”
The two lecturers say if implemented to the full, the Act could help promote transparency and good governance as was intended by the framers.
They say “the Act contains progressive provisions regarding the minimum standard of conduct expected of MPs and ministers….”
“…, together with administrative justice mechanisms for redress which contribute towards meeting the above constitutional values and principles,” the duo argues further. “If implemented, the Act has potential to not only improve the quality of leadership, but also tame corruption often manifested through the growing abuse of public resources, which now appears to be part of our staple food in Zambia as can be seen from the gloomy annual reports of the Auditor General and the Financial Intelligence Centre (FIC). Good laws are of little use unless they are effectively implemented.”
They say Chief Justice Mambilima should have constituted a tribunal immediately she noticed that Chapter One Foundation had met the requirements for doing so in the request.
Dr Kaaba and Kayumba argue that Chief Justice Mambilima was not there as an adjudicator but simply an administrative officer who could have constituted a tribunal.
“Starting with the first point, the Chief Justice has no power under the provisions of the Parliamentary and Ministerial Code of Conduct Act, to investigate or determine the merits of an allegation submitted to her in writing by a complainant,” they contend. “Her administrative function under this section is purely ministerial. This means that she must carry out the statutory function as a matter of duty, devoid of any discretion, freedom or choice. She cannot therefore opt out of performing this statutory function.”
The lecturers argue that it is only the tribunal that has powers to investigate ministers and not the Chief Justice.
“Once Chapter One Foundation had fulfilled the requirements of section 13(1) of the Act, namely, submit a written complaint signed by the complainant, the mandate of the Chief Justice was simply to notify the President and the Speaker of the allegation and appoint a tribunal,” they argue. “The powers to investigate the allegations and determine their merits are given to the tribunal by section 14 of the Act. The framers of the Act intended for this power of the Chief Justice to be purely ministerial as they put in place a mechanism to counter abuse of its provisions by creating an offence of knowingly making a false allegation. By proceeding to investigate the allegations and determining them on their merits, the Chief Justice acted illegally and ultra vires the empowering provisions.”
The lecturers contend that justice Mambilima had assumed responsibilities of the Constitutional Court.
They say it is only the Constitutional Court which is mandated by law to interpret the Constitution.
“The second point we wish to address is the Chief Justice’s unconstitutional attempt to usurp the exclusive jurisdiction of the Constitutional Court by venturing into constitutional interpretation on a matter where she clearly lacked the jurisdiction to do so as shown above. The binding and authoritative interpretation of the Constitution, except for the Bill of Rights, is a matter reserved to the Constitutional Court,” argue the lecturers. “Article 128(1)(a) of the Constitution is categorical in vesting this power in the Constitutional Court and there is no ambiguity about it. Since the Chief Justice was simply being asked to play an administrative role of appointing a tribunal, she had no business in veering into constitutional interpretation.”
See full article in Sunday Mast.