[By Mutende Chanda]
GOOD governance activist Brebner Changala has asked President Edgar Lungu to suspend Lusaka High Court judge Sunday Nkonde for professional misconduct.
In a ruling dated November 9, 2020, the Lusaka High Court discharged the ex-parte leave for judicial review granted to judge Nkonde which operated as a stay of his suspension as the main matter was likely to fail.
Dr Fred M’membe, who is the former proprietor of the Post Newspaper (in liquidation), had lodged a complaint against judge Nkonde before the Judicial Complaints Commission (JCC) for being biased in handling the liquidation case.
Dr M’membe said judge Nkonde could not preside over the liquidation case of The Post Newspaper Limited as he once attempted to render the company insolvent in 2012 when he commenced a law suit against it on behalf of Finance Bank without the bank’s authority.
In November 2018, the JCC found judge Nkonde with a case to answer and wrote a letter to President Lungu that judge Nkonde be suspended from duty to allow the Commission to investigate him.
However, judge Nkonde applied for leave to commence judicial review proceedings against the Judicial Complaints Commission’s decision dated November 14, 2018.
The JCC recommend for judge Nkonde’s suspension after he was found with a case to answer for misconduct in the manner he handled The Post Newspaper liquidation case.
Judge Nkonde, who cited the Attorney General in the matter, said the directive by the JCC that the complaint against him by Dr M’membe be heard and that he be suspended, was null and void ab initio.
The Kitwe High Court granted him leave to commence judicial review which operated as a stay of the JCC’s decision to suspend him.
On March 11, 2019, the State asked the court to set aside the ex-parte order for leave to apply for judicial review.
In her ruling last month, Lusaka High Court judge Gertrude Chawatama discharged the order granting leave to commence judicial review.
“I agree with the respondent (the State) that the removal of a judge is governed by the Constitution. The ex-parte leave granted to the applicant (judge Nkonde) is hereby discharged. The reason for the discharge is that I am fully persuaded that the main matter is bound to fail,” said judge Chawatama.
Two weeks after that ruling, Changala says President Lungu’s deliberate silence on the matter amounts to lawlessness.
“There’s so much lawlessness in this country. And the danger about this lawlessness is that it’s anchored at plot one (State House), at the President of the Republic of Zambia,” he said. “He has no any other window of excuse than the tribunal, in that seven days have elapsed without acting, and without suspending judge Sunday Nkonde so that the full process of the law could commence and the matters are put to rest once and for all.”
Changala reminded President Lungu that everyone was equal before the law.
“I know very well that the gentleman he’s supposed to suspend is his colleague. And I know very well that the closure of The Post was a State House sponsored project. So, they’ll not want to sacrifice Sunday Nkonde. But the law being what it is it does not accommodate conducts that are against the rule of law. What I’m appealing to President Edgar Lungu is to suspend one of his closest allies, in the interest of justice, in the interest of the nation. He must put his partisan interests aside,” he said. “Mind you, he swore to uphold and protect the Constitution – he is the fountain of justice. He’s given power to serve the country honourably. The power that he has gives him no option but to adhere to the law. In this case he has to abandon his emissary at this critical hour. He has to abandon the person that served his partisan interests at some moment in time. He’s not going to be allowed by the same law to start looking for scapegoats. Mind you, when the JCC wrote to him to suspend Sunday Nkonde, he came publicly to say he has received documents that there is a court matter and a stay has been granted. How did he know about that and who served those documents to him at State House? So, President Edgar Chagwa Lungu, if he’s not careful, this matter will give him problems when he leaves office because he will have broken the law. The law says he’s supposed to suspend judge Nkonde within seven days. Now, since he has not done so, he has already broken the law. And if there are people who are alert elsewhere including Parliament, he can be impeached.”
Changala said, “the President obviously is looking for a way of saving an ally”.
“But already he has broken the law because the Constitution does not give him an option. Whatever he does in his quest to save his ally, he will not get away with it because the law binds him to act accordingly,” he said. “So, in this moment in time, the President has broken the law, and it’s up to the powers that be, which includes Parliament, to move in and put him on notice.”
He stressed that even the President’s personal friends should face the law.
“This is not a bow of sugar on his table. This is an order of the Constitution that Mr Sunday Nkonde must face the tribunal. It is unfortunate that the tribunal is supposed to be constituted by a colleague in the name of President Edgar Chagwa Lungu, but he has no choice – that is a requirement by the law,” Changala said. “President Lungu swore to protect and defend the Constitution of the Republic of Zambia. It’s almost two weeks since the High Court lifted the stay on Mr Sunday Nkonde’s application in which the Judicial Complaints Commission wrote to the President to suspend him so that a tribunal can be set up and investigate his conduct in the liquidation of The Post newspaper.”
Changala said if the ruling was about an opposition leader or a judge who was not his friend, President Lungu would have acted swiftly.
“Now, as a President of the Republic of Zambia he has no excuse but to carry out what the Constitution says, even if the culprit is one of his colleagues. If this ruling by the High Court had any implication on an opposition leader, he could have taken action. And he could have said my hands are tied, it’s the courts that have said it,” said Changala. “I, Brebner Changala, am asking President Edgar Chagwa Lungu for the first time to respect the Constitution. I know very well that Mr Sunday Nkonde and many players in the liquidation of The Post Newspapers are his colleagues. But he should put the country first, his colleagues later. He swore to protect and defend every part of the Constitution, so he should not be selective on his actions as commanded by the law.”
The Post was crippled by the State on the pretext that it was technically insolvent and could not pay its creditors.
This was after its former employees Andrew Chiwenda, Abel Mboozi, Roy Habaalu, Mwendalubi Mweene, Bonaventure Bwalya and the Zambia Revenue Authority commenced an action in the Lusaka High Court to wind up the company on November 1, 2016.
They claimed that the newspaper had failed to pay them their money cumulative to K815,000, and that it was just and equitable to wind it up as other creditors had seized its property.
The liquidation of the Post Newspapers and the process followed remains heavily contested.