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By Temwani Tembo and Emmanuel Lishandu8th April 2024
INTRODUCTION
The Legal profession is
said to be a noble one. This entails that legal practitioners, judicial
officers and judges are expected to conduct themselves in a manner of
integrity. However, this quality is not always portrayed. The following is a
review of the case of Joshua Ndipyola
Banda V Attorney General (2022/CCZ/0010) as decided in the Constitutional
Court for Zambia. As will be seen, this case espouses the position of the law of
Zambia regarding the importance of ethical conduct in the legal profession both
in one’s personal and public life as well as the repercussions of misconduct.
BRIEF FACTS
A decision was made by
the president to remove the petitioner, Joshua Ndipyola from the office of the
High Court Judge on recommendation of the Judicial Complaints Commission
Following the mandatory provisions of the Constitution. This was after Mr
Mwanza, the complainant issued a complaint based on the conduct of the
petitioner prior to him becoming judge. The complaint involved the petitioner soliciting
a sum of k63000.00 while he worked as an undersheriff in the Judiciary in order
for Mr Mwanza’s case to have a favourable outcome.
ISSUES
Whether or not the
Judicial Complaints Commission has jurisdiction to hear allegations for actions
that took place prior to becoming a judge?
Whether or not the
president contravened the Constitution when he removed the petitioner from
office of judge under Article 144(5) (b) of the Zambian Constitution (No 2 of
2016) without first following the provisions of Articles 144(3) of the
constitution?
RATIONALE AND HOLDING
The judge is not
insulated from being investigated for past misconduct which occurred before one
became judge especially were a complaint lodged against them is pending
hearing. The Judicial Complaints Commission did not usurp the powers of the
Constitutional Court when it investigated the complaint. This is because the
body in discharging its constitutional duties applies to the constitution. An
aggrieved party may petition the court alleging breach of Constitution by the
Judicial Complaints Commission through its decisions in line with Article 128
(3)(C) of the constitution. Which explains that actions, omissions
and decisions made by persons in authority may be heard in the constitutional
court.
The Judicial Complaints
Commission acted in line with the mandate in Article 143 of the constitution
which provides the procedure to be followed when a judge is to be removed. This
was seen when the petitioner was informed about the complaint and gave a
written response to the allegations. Summons were then issued for him to appear
before the Judicial Complaints Commissions and to present evidence. Thus, Article
143 of the constitution was complied
with in that, the Judicial Complaints Commission specified in the summons that
the petitioner was to answer to the allegations of misconduct pertaining to
corrupt practices. This complaint was considered even though it was after
ratification of the petitioner’s appointment as High Court judge as it covered
misconduct pending before it.
SIGNIFICANCE OF CASE
This case is cardinal to
our jurisdiction because it sets the precedent on the required ethical conduct
of judicial officers in Zambia. The court clearly stated that the petitioners
conduct led to the compromising of the integrity embodied in the office of High
Court judge. The court was persuaded by the case of Shirang Yadavarao Waghamare V State of Maharashtra and others (Appeal
No. 7306 of 2019) of the Indian jurisdiction which held that integrity is
the hallmark of judicial discipline and the judiciary must take utmost care to
protect the temple of justice. Thus, based on this premise or reasoning, the
court found that the petitioner Mr Banda engaged in corrupt practices which
according to Article 266(c) constitution
is tantamount to gross misconduct leading to removal from office of judge.
The case further
clarifies the procedure to be followed whenever a judge is to be removed from
office as stipulated in Article 143 and 144 of the Constitution.
Additionally, the court
highlighted that it was immaterial that the gross misconduct of the petitioner
occurred before his appointment as judge. This is because the misconduct was
enough to discredit a judge of the high court and make them liable for their
actions.
The court further stated that the legal profession upholds the quality of integrity in highest regard. As such, even procedural impropriety in the removal process cannot be a valid reason to acquit a judge whose misconduct was established.
CONCLUSION
This case illustrates how
the Zambian Legal system places a high regard on professional ethics and
integrity of judicial officers or judges. These qualities are to be upheld as
they carry on their duties.
LEGAL AID INITIATIVE(Bringing the Law to Your Comfort)
About the Authors:
Temwani Tembo is a third year student at the University of Zambia and a researcher at Legal Aid Initiative.
Emmanuel Lishandu is a second year law student at Cavendish University. He is also a researcher at Lega Aid Initiative.