Justice Anne Mwewa Sitali and Ors v Attorney General (2024/HP/1373) [2024] ZMHC 165 (11 October 2024)

IN THE HIGH COURT OF ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) 2024/HP/1373 IN THE MATTER OF: ORDER 53 RULE 3 OF THE RULES OF THE SUPREME COURT OF ENGLAND & WALES 1965 ( 1999 EDITION) VOLUME 1 AND 2 . IN THE MATTER OF: AN APPLICATION FOR LEAVE TO COMMENCE JUDICIAL REVIEW. IN THE MATTER OF: THE DECISION OF THE JUDICIAL COMPLAINTS COMMISSION TO HEAR COMPLAINT NO. 24/JCC/076 BY MOSES KALONDE AND TO REOPEN THE CASE OF A MATTER INVOLVING SIWALE HONOURABLE MULENGA AND HONOURABLE JUSTICE PALAN MULONDA. JUSTICE MUGENI IN THE MATTER OF: IN THE MATTER OF: IN THE MATTER OF: (BY (BY SYAKALIMA), 2016/JCC/81 2016/JCC/87 2016/JCC/84 THE COMPLAINTS UNDER CAUSE NUMBER 2016/JCC/77 (BY EMMANUEL MTONGA AND ALFRED CHIMS MBEWE), 2016/JCC/80 (BY DOUGLAS (BY 2016/JCC/DANTE KAINFA CHANDAG'OMA), PETER SUANDERS), SINKAMBA), CHARLES LONGWE), AND OTHER SIMILAR COMPLAINTS INCLUDING THE RECENT COMPLAINT BY MOSES KALONDE WHICH RESULTED IN THE JUDICIAL COMPLAINTS COMMISSION'S DECISION TO REOPEN THE CASE AGAINST HONOURABLE JUSTICE ANNE MWEWA SITALI, HONOURABLE JUSTICE MUGENI SIWALE MULENGA AND HONOURABLE JUSTICE PALAN MULONDA HAVE ALL BEEN CONCLUSIVELY DECIDED, YET THE JUDICIAL COMPLAINTS COMMISSION HAS DECIDED TO HEAR THE SAME MATTERS. TO THE DECISION OF THE JUDICIAL COMPLAINTS COMMISSION THE SUSPENSION OF THE HONOURABLE JUSTICE ANNE MWEWA SITALI, HONOURABLE JUSTICE MUGENI SIWALE MULENGA AND HONOURABLE JUSTICE PALAN MULONDA. RECOMMEND ZAMBIA MR. THE DECISION OF THE PRESIDENT OF THE REPUBLIC OF HAKAINDE HICHILEMA DATED 23RD OF SEPTEMBER 2024 JUSTICE ANNE SUSPENDING HONOURABLE MWEWA SITALI, HONOURABLE JUSTICE MUGENI SIWALE MULENGA, AND HONOURABLE JUSTICE PALAN MULONDA. IN THE MATTER OF: SECTION 12 OF THE STATE PROCEEDINGS ACT, CHAPTER 71 OF THE LAWS OF ZAMBIA. IN THE MATTER OF: ARTICLE 11 OF THE CONSTITUTION OF ZAMBIA, CHAPTER 1 OF THE LAWS OF ZAMBIA. IN THE MATTER OF: ARTICLE 18(9), (11) OF THE (10) AND CONSTITUITON OF ZAMBIA, CONSTITUTION OF ZAMBIA ACT, CHAPTER 1 OF THE LAWS OF ZAMBIA OF ZAMBIA AS READ WITH THE PROVISIONS OF THE JUDICIAL (CODE OF CONDUCT) ACT NO.13 OF 1999 AS AMENDED. BETWEEN: JUSTICE ANNE MWEWA SITALI JUSTICE MUGENI SIWALE MULENGA JUSTICE PALAN MULONDA 1 ST APPLICANT 2ND APPLICANT 3RD APPLICANT AND ATTORNEY GENERAL RESPONDENT Before: Hon. Mr. Justice C. Zulu, Hon. Lady Justice C. B. Maka, Hon. Mrs. Justice T. S. Musonda. For the Applicants: Mr. S . Chisulo, SC & Mr. D. Musonda of Messrs Sam Chisulo & Company. For the Respondent: Mr. M. Muchende, SC., Solicitor General. Mrs. C. L. Kasonde-Mwanza, Principal State Advocate and Mr. K. Sakachiva, State Advocate RULING Cases referred to: 1. Patience Chalwe and Freeman Mwelwa v. The Attorney General (2014/HP/0793). 2. The People v. Attorney General ex-parte Nigel Mutuna and 2 Others (2013) ZMSC 38. 3. Nyampala Safaris (Z) Limited and Others v. Zambia Wildlife Authority and Others (2004) Z. R. 49. 4. R v. Hillingdon London B. C exp Puhlhofer (1986) A. C. 484. -R2- 5. Attorney General v Mutembo Nchito (SCZ Appeal No. 157/2015). 6. The People v. Judicial Complaints Commission, Vincent Blackskin Malambo, Chad H Muleza, Dean Mwansa Mum.ha and the Attorney General ex-parte Timothy Katanekwa (2024/HP/0262). 7. Mutembo Nchito v Attorney General 2016/CC/0029. 8. JNC Holdings Limited V. Development Bank of Zambia (SCZ Appeal No. 874/2012). 9. Chikuta v. Chipata Rural Council (1974) Z. R. 241. l 0. New Plast Industries v The Commissioner of Lands and Attorney General (2001) Z. R. 51. 11. Nigel Kalonde Mutuna & Charles Kajimanga v. The Attorney General 2012/HP/0515. 12. Chiluba v. The Attorney General (2003) Z. R. 153. 13. Amanda Muzyamba Chaala (Administrator of the Estate of the late Florence Mwiya Siyunyi Chaala) v Attorney General and Another (2012) Vol. 1 Z. R. 316. 14. Kansashi Mining PLC v Zambia Revenue Authourity (SCZ Appeal No 143/2014). 15. Anisminic Limited v. The Foreign Compensation Commission and Another [1969] 1 ALL E. R 208 at page 213. 16. Nyali v the Attorney Generall6-17 (1956) 1 QB 1 at page 16-17). 17. Edwin Harold Dayan Dande & Four Others v. The Inspector General, National Police Service and Five Others. 18. Erica Fungai Ndewere v. The President of the Republic of Zimbabwe, Simbi Veke Mubako and Yvonne Masvora. 19. Chirambwe v. President of the Republic of Zimbabwe & e Others (CCZ-4-21). 20. Mayo v. Chacha & Others 2017 (Z) ZLR 142 (CC). 21 . Mandlakayise John Hlophe v. Judicial Service Commission and Others (Case No 43482/2021). 22. Doctors For Life International v Speaker of the National Assembly and Others (2006 (2) SA 416 (CC) para. 23 and 24). 23. John Sangwa (2021/CCZ/0012). Legislation referred to: v the Attorney and Another 1. Constitution of Zambia (Amendment) Act No. 2 of 2016. -R3- ( 2. The Rules of the Supreme Court of England and Wales 1965 (White Book 1999) Edition. 3. High Court Act Chapter 27 of the Laws of Zambia. 4. The Judicial (Code of Conduct) (Amendment Act) No. 13 of 2006. 1.0 INTRODUCTION 1.1 This ruling is in respect of the Respondent's application for an order to discharge the leave granted to the Applicants on 28th September 2024 to commence judicial review. The application was made pursuant to Order 53 rule 14 / 4 of the The Rules of the Supreme Court of England and Wales 1965 (White Book 1999) Edition. The application was supported by an affidavit and skeleton arguments. 1.2 The Applicants contested the application, by filing an affidavit in opposition together with their skeleton arguments dated 4th October 2024. 2.0 BACKGROUND 2.1 The Applicants, Justices Anne Mwewa Sitali, Mugeni Siwale Mulenga, and Palan Mulonda, serve as Judges of the Constitutional Court. 2.2 On 23rd September 2024, the Republican President pursuant Article 144(3) of the Constitution of Zambia (Amendment) Act No. 2 of 2016, respectively suspended the Applicants from the office of judgeship based on a recommendation by the Judicial Complaints Commission (JCC) issued under Article 144 (2) of the said Constitution. The suspension was -R4- intended to allow the JCC to hear the complaint lodged against the Applicants by Moses Kalonde. 2.3 It is alleged that prior to the complaint by Moses Kalonde, six complaints had been lodged against the Applicants with the JCC by Emmanuel Mtonga and Alfred Chims Mbewe (cause number 2016/JCC/77), Douglas Syakalima (cause number 2016/JCC/80), Kaimfa Chandang'oma and others (cause number 2016/JCC/81), Dante Sunders (cause number 2016/JCC/82), Peter Sinkamba (cause number 2016/JCC/84) and Charles Longwe (cause number 2016/JCC/87) . 2.4 According to the Applicants, the six co~plaints were all based on the same facts and were determined by the JCC. That the JCC investigated the six complaints and found that no prima facie case had been established against the Applicants. 2.5 Notwithstanding the foregoing, in 2023, one Joseph Busenga filed a complaint with the JCC demanding that the earlier complaints be re-opened. The JCC declined to re-open the complaint, stating that the issues raised were dealt with and concluded. 2.6 Given the Applicant's grievance with the decision of the JCC to re-open and hear the complaint lodged by Moses Kalonde, and their subsequent suspension from office, the Applicants applied to the High Court for leave to apply for judicial review. 2. 7 And the remedies sought via judicial review is for an order of certiorari to essentially quash the decision of the JCC to re-open the case and quash the decision of the Republican President to suspend them from office. The notice of -RS- application for leave to apply for judicial review was filed on 25th September 2024. The application was made pursuant to Order 53 rule 3(2} RSC. 2.8 The Applicants were granted leave to commence judicial review on 28th September 2024. The grant of leave operated as a stay of the proceedings before the JCC, which were scheduled to commence on 30th September 2024. 2. 9 The grant of leave spurred the Respondent's protest, prompting the Respondent to file the present application dated 1st October 2024, seeking to discharge the order for leave to commence judicial review, largely for want of jurisdiction. 3.0 THE RESPONDENT'S AFFIDAVIT 3.1 An affidavit in support of the application was sworn to by Brian Gombwa, the Acting Commission Secretary of the JCC. 3.2 He observed that, while the Applicants presented the JCC's rulings on allegedly similar past complaints, the Applicants deliberately and ingeniously failed to present the complaints related to those rulings, including the recent complaint whose aftermath triggered the current action before this Court. 3.3 According to Mr. Gombwa, given the Applicants' omissions, the Court was denied the opportunity to compare the substance of Moses Kalonde's complaint with those filed in the past. He added that the Court was prevented from distinguishing the current complaint from the previous ones. 3.4 According to the deponent, the new complaint raises issues that were not addressed in previous complaints. -R6- 3.5 It was further stated that the Applicants' affidavit verifying facts failed to disclose that the Applicants had raised preliminary issues before the JCC, arguing that Moses Kalonde's complaint was res judicata, as evidenced by exhibit "BG2." He added that the preliminary issues were dismissed on the ground that the recent complaint raised new issues. 3 .6 He explained that the JCC's ruling, which dismissed the preliminary issues raised by the Applicants, along with the recommendation to the Republican President and the subsequent suspension of the Applicants, were interlocutory orders for which judicial review was unavailable. 4.0 THE APPLICANTS' AFFIDAVIT 4.1 An affidavit in opposition was deposed to by the 2 nd and 3 rd Applicants on their own behalf and on behalf of the 1st Applicant. 4.2 In summary, the Applicants denied the Respondent's assertion that they deprived this Court of the opportunity to compare the substance of Moses Kalonde's complaint with those filed in the past. According to the Applicants; the exhibited rulings by the JCC disclose the gist of the complaints, which pertain to the same subject matter as the recent complaint, being the 2016 Presidential Election Petition. 4.3 The Applicants disputed the Respondent's assertion that Moses Kalonde's complaint against the Applicants had raised new issues, which were not raised in previous complaints. They observed that the Respondent had in fact conspicuously - R7- failed to state the alleged new issues which were not raised in the previous complaints. 4.4 The Applicants further stated that there was no need to mention the preliminary issue raised before the JCC, as it was not the basis for judicial review. They noted that the preliminary issue was nevertheless captured in the JCC report dated 23r d September, 2024 and in the Applicants' subsequent suspension by the President. 4.5 According to the Applicants, the JCC's decision to hear Moses Kalonde's complaint alleging incompetence and/ or gross misconduct against them, relating to the petition of Hakainde Hichilema and Another v. Edgar Chagwa Lungu and Others under cause number 2011, and its decision that a prim a f acie case had been proven against them, and its recommendation that they be suspended from office as Constitutional Court Judges, are amenable to judicial review. 5.0 THE RESPONDENT'S SKELETON ARGUMENTS 5.1 In support of the application, the Respondent restated the provisions of Order 53 rule 14/4 RSC. It was thus argued that, according to this provision, it was open for the Respondent to seek an order to discharge an order granting leave to commence judicial r eview. The Respondent did also acknowledged that the applications to discharge the grant of leave are invariably discouraged, and that, they should only be made where it can be shown that the substantive application would clearly fail. - R8- 5.2 The Respondent also cited the High Court case of Patience Chalwe and Freeman Mwelwa v The Attorney General flJ, where the Court outlined some of the issues to be considered in an application to discharge an order granting leave; almost similar to those for denial of leave. Itemized as follows: material non-disclosure; failure to demonstrate an arguable case, absence of jurisdiction to apply for judicial review, where the Applicant should have used an alternative remedy, where there was undue delay by the applicant, and failure by the applicant to make out a necessary precondition m relation to entitlement to seek judicial review. 5.3 Regarding non-disclosure of material facts, it was argued that pursuant to Practice Note 53/14/57 RSC, the Applicant has a duty to show uberrimae fidei, and if leave was obtained on false statements or suppression of material facts in the affidavit, the Court was conferred with the discretion to refuse an order for leave to commence judicial review. 5.4 It was reiterated that since the application for leave was determine ex parte, the Applicant's supporting affidavit ought to verify facts relied upon to support the application. 5.5 Based on Practice Notes 53/14/57 and 53/14/60 RSC, the Respondent buttressed the argument that, the Applicants having alleged that Moses Kalonde's complaint was similar to the other six complaints previously heard by the JCC, the Applicant failed to produce Moses Kalonde's complaint as well as the other six similar complaints, to illustrate that the JCC's re-opened the complaint, which was res judicata, to warrant the Court to invoke its powers to review the JCC's -R9- decision making process. It was thus argued that proof of the alleged similarity of the complaints or lack thereof was a material fact that would directly affect the Court's decision on whether or, not to grant leave sought by the Applicants. 5.6 The Respondent argued that it was necessary to delve into the aforementioned issues on the authority of the Supreme Court's position in the case of The People v. Attorney General ex-parte Nigel Mutuna and 2 Others2Jwere it was held that, it was proper for the Appellant to attack the cogency of the evidence given in support of the application for leave, particularly to canvass the applicable law. 5.7 Citing Practice Note 53/14/19 RSC, the Respondent highlighted the established position that the remedy of judicial review was concerned with reviewing, not the merits of the decision in respect of which the application for judicial review is made, but the decision-making process. The Respondent cited the cases of Nyampala Safaris (Z) Limited and Others v. Zambia Wildlife AuthoritJ/ and Othersf3J and R v. Hillingdon London B. C ex parte Puhlhofer,4J in support of this proposition. 5.8 The Respondent also highlighted the procedure to be followed by the JCC when handling a complaint as outlined in Article 144 of the Constitution of Zambia (Amendment) Act No. 2 of 2016. 5. 9 It was argued that pursuant to Article 144 ( 1) of the Constitution, the JCC received a complaint and proceeded to issue summons to the Applicants. And that upon consideration of the Applicant's responses, the JCC -RlO- established that a prima facie case had been made out against the Applicants. And that the JCC presented its report to the President as required by Article 144 (2) of the Constitution. And that the President as mandated by Article 144 (3) suspended the Applicants upon receipt of the JCC's report. 5.10 It was contended that the Applicants did not demonstrate which part of the process the JCC failed to follow. In addition, It was observed that the Applicants having been dissatisfied with the ruling of the JCC, opted to raise an issue for judicial review. According to the Respondent, the Applicants' conduct to commence judicial review was a veiled attempt to assail the merits of the JCC's decision. And we were urged to curtail this process. 5.11 In support of the position that there can be no judicial review on decisions that are interlocutory in nature, the Respondent cited the Supreme Court case of Attorney General v Mutem.bo NchitdSJ, which guided the High Court to exercise great restraint when exercising its discretion to review an interlocutory decision of an administrative tribunal. 5.12 Further that, to persuade the Court to hear and determine an application for judicial review of an interlocutory decision, the Applicant was required to establish that without being afforded the said relief, there would be a fundamental failure of justice. It was restated that the court's interference into proceedings before a tribunal, carried the risk of the court straying into deciding on the correctness or merits of preliminary issues. Additionally, it was observed that -Rll- allowing judicial review on interlocutory decisions of administrative tribunals, would hinder them from efficiently conducting their administrative inquiries. 5. 13 Contextually, it was argued that the JCC's decision was interlocutory in nature and the Applicants had not established grounds that could be said to have made their current application so exceptional, such that without reviewing the decision, the Applicants would suffer a fundamental failure of justice. 5. 14 In the light of the above, it was reasoned that the JCC's decision to recommend the suspension of the Applicants did not amount to a final determination of the Applicant being found guilty or amenable to dismissal, but was part of an ongoing investigation. It was argued that it was thus premature to allow judicial review at this stage as the Applicants would have an opportunity to defend themselves in the appropriate forum . 5.15 Turning to the final argument regarding jurisdiction, it was argued that pursuant to Article 128 ( 1 )( c) of the Constitution, subject to Article 28, it was the Constitutional Court which is clothed with original and final jurisdiction to hear 'a matter relating to the President, Vice-President or an election of a President.' 5.16 It was argued that having regard to the fact that the present matter inevitably relates to the interpretation and the exercise of constitutional power by the President, this Court would have to exercise its duty to refer the matter to the Constitutional Court. -R12- 5.17 Furthermore, it was contended that the Applicants having made reference to constitutional provisions, in so far as they relate to the exercise of constitutional powers by the JCC, this Court had no jurisdiction to determine the exercise of such powers which required this Court to interpret constitutional provisions. The Respondent cited the recent High Court case of The People v. Judicial Complaints Commission, Vincent Blackskin Malambo, Chad H Muleza, Dean Mwansa Mumba and the Attorney General ex-parte Timothy Katanekwaf6J. In that case Mulenga J declined to grant leave to commence judicial review proceedings. The decline was on the basis that the Applicant cited excess of jurisdiction, illegality and procedural impropriety as grounds for relief, which would require the Court to evaluate the conduct of the JCC by reference to constitutional provisions, which were outside the Bill of Rights, which by Article 128 of the Constitution were reserved for litigation and determination in the Constitutional Court. 5.18 Finally, it was reiterated that the grant of leave to commence judicial review proceedings was fundamentally flawed and should be discharged. 6.0 THE APPLICANTS' SKELETON ARGUMENTS 6.1 The Applicants Counsel's arguments highlighted the principles governing the machinery of judicial review. It was contended that the application for judicial review was aimed at challenging the JCC's decision of 23rd 8eptember 2024 to re-open and hear a matter related to how the Applicants handled the Presidential Petition of 2016. -R13- - 6.2 Additionally, it was stated that the Applicants' desire was to challenge the decision of the President made on 23rd September 2024 to suspend them from office with immediate effect, based on a recommendation made to the President by the JCC. It was thus argued that the JCC lacked jurisdiction, on account that the matter the JCC sought to re-open was res judicata. 6 .3 Conversely, it was observed that it was not the Applicant's desire to challenge the merits of the JCC's decision or the President's decisions, but sought to challenge the decision making process leading to their suspension. 6.4 It was argued that the Applicants' application was meritorious with high prospects of success, because the JCC's decision-making process leading to their suspension was flawed, on account of illegality, unreasonable, procedurally improper and irrational. 6.5 The allegation of failing to disclose material facts was discounted. 6.6 Furthermore, it was contended that the Applicants were not obliged to address the preliminary issue referred to by the Respondent, because the Court was moved to review the Respondent's decision to recommend their suspension and the resultant suspension. The Applicants reiterated their position that the preliminary issue was nevertheless captured in the JCC's report which was exhibited in the affidavit verifying facts . -R14- 6.7 Regarding the argument that this Court had no jurisdiction to order a stay of proceedings of pending proceedings before the JCC, it was submitted that the Supreme Court in the case of Mutembo Nchito v. The Attorney Generalt7J, explicitly stated that a recommendation of the tribunal was subject to judicial review. 6.8 Reg~ding the question whether the decision of the JCC was amenable to judicial review. It was argued that contrary to the Respondent's submissions, the JCC's subject decision cannot be said to be interlocutory in nature, based on the fact that Article 144 (2)(3) of the Constitution of Zambia, mandates the President to suspend a Judge, if the JCC finds a prima facie case against the Judge. 6.9 In the same vein, it was noted that the proviso to Section 24 of the Judicial (Code of Conduct) (Amendment Act) No. 13 of 2006, provides that, where no prima facie case has been established, the JCC was conferred with the discretion to dismiss the complaint without investigating further. 6.10 According to the Applicant's Counsel, the above meant that the JCC's decision would have been terminated, if the JCC was of the view that no prima f acie case was established against the Applicants. That for this reason, the JCC's decision cannot be said to be interlocutory in nature. 6.11 It was also submitted that the JCC's decision was distinguishable from the interlocutory decision envisaged in the Supreme Court case of Mutembo Nchito v The Attorney Generaf71. On the basis that, the JCC's decision in the -RlS- present case was not as a result of an application by the Applicants, but rather a decision on the substantive issues. 6 .12 The Applicant's Counsel restated that the JCC's decision was under challenge based on the ground that the JCC lacked jurisdiction to conduct an investigation into the current complaint. It was, therefore, noted that without jurisdiction, the JCC's inquiry and the decision-making process amounted to nothing, and that this Court was not obliged to wait for any further step or decision before reviewing this particular case. The Applicants sought to rely on the case of JNC Holdings Limited V. Development Bank of Zambia<8J, where the Supreme Court held that as decided in the Chikuta v. Chipata Rural Councilf9J and New Plast Industries v The Commissioner o[Lands and Attorney General<10J, where a Court has no jurisdiction, it cannot make any lawful orders or grant any remedies sought by a party to that matter. 6 .13 It was submitted that the JCC cannot, therefore, subject the Applicants to a fair process in the absence of jurisdiction and, that everything arising from an inquiry that is devoid of jurisdiction was a nullity. 6 . 14 In furtherance of the foregoing, it was con tended that judicial review proceedings are sensibly practical at this stage owing to the fact that, the Applicants will not have the opportunity to successfully challenge any later decisions of the JCC as the same will culminate in their removal from office without the possibility of reinstatement. 6.15 The Applicants cited the cases of Attorney General v Mutembo Nchitof5J and Mutembo Nchito v Attorney -R16- Genera'1f7J respectively decided in the Supreme Court and Constitutional Court to buttress their argument. It was noted that although successful, Mr. Nchito could not be reinstated as he was already removed from office of the Director of Public Prosecutions. 6.16 The Applicants' Counsel expressed fear, that if the Court vacated its decision to grant leave, the Applicant will suffer a fundamental miscarriage of justice. 6.17 Regard was also had to the High Court case of Nigel Kalonde Mutuna & Charles Kaiimanga v. The Attorney Genera'1f11J, where it was held that in an application to discharge leave, the Respondent was required to demonstrate that the Applicant's case was totally hopeless, bound to fail and therefore not worthy of further investigation at a substantive hearing. Additionally, it was reiterated that applications for discharge of leave are discouraged, and should only be made where the respondent can show that the substantive application may fail. That an applicant for judicial review need only show that he has a prima fade case or arguable case, or reasonable ground for believing that there had been breach or threat or failure to perform a public duty. 6.18 Finally, it was argued that the Applicants had demonstrated that there was reasonable ground for believing that the JCC breached its public duty, and that a threat of further breaches was imminent, unless the order of stay was upheld. -R17- 7.0 HEARING OF APPLICATION 7.1 At the hearing of the application, the learned Solicitor General and his legal team made oral submissions to augment the Respondent's written skeleton arguments. 7 . 2 The learned Solicitor General informed the court that he was relying on the affidavit in support and skeleton arguments filed on the 1st October 2024. The gist of the submission was that, the application to discharge leave for judicial review was permissible under Order 53 Rule 14/4 of the RSC. One of the key considerations as restated in the cited cases of Attorney General v Mutembo Nchitd5J and Attorney General v Nigel Kalonde Mutunaf11J was where the substantive application for judicial review was bound to fail. 7.3 It was contended that the Applicants breached the duty to make full and frank disclosures with regard to previous complaints which could have assisted the Court to compare and contrast those previous complaints with the one by Moses Kalonde. That this suppression of material facts should move the court to discharge the leave. 7.4 The second aspect of the submission pertains to the preliminary issue that the Applicants had raised before the JCC and was dismissed. It was submitted that had the Applicants exhibited the application to raise preliminary issue and not just the ruling, the Court would have been guided by the Supreme Court decision of Attorney General v Mutembo Nchitd5J to the effect that interlocutory decisions of administrative tribunals were not amenable to judicial -R18- review. It was reiterated that the Applicants had deliberately and calculatively decided to conceal the application. 7.5 As regards the Republican President's power to suspend the Judges on the recommendation of the JCC, it was the learned Solicitor General's submission that by Article 144(2)(3) of the Constitution; assailing the said presidential powers would be veering into the exclusive jurisdiction vested 1n the Constitutional Court under Article 128 (1) of the Constitution. The learned Solicitor General urged the Court not to take that route; as a challenge on the powers of the President cannot be a subject of judicial review. That moving this case to full hearing would entail the court pronouncing itself on constitutional issues for which it has no jurisdiction. 7.6 It was further restated that the recommendation by the JCC for the suspension of the Judges was an interlocutory decision for which judicial review should not lie. It was lastly argued that where a new matter arises, a party cannot be estopped from raising it. That Moses Kalonde accordingly raised new issues in his complaint and the public was not estopped from filing a complaint before the JCC. 7 . 7 The legal team for the Applicants led by the learned State Counsel, Mr. Chisulo equally made oral submissions to augment the written arguments. They also relied on the affidavit in opposition and skeleton arguments filed on 4 th October 2024. 7.8 In addition it was submitted that although the· court has power to discharge the leave granted, the Nigel Kalonde Mutunaf 11J case reaffirmed a general principle of law to the -R19- effect that applications to discharge leave are discouraged, and should only be granted in exceptional circumstances. The Applicants contention was that there were no exceptional circumstances in this case to discharge the leave. 7 . 9 It was further reiterated that the Applicants were challenging the decision of the JCC recommending their suspension and any further hearing of the matter. That therefore the Applicants had no obligation to disclose material facts relating to the preliminary issue as it was not the subject matter of these judicial review proceedings. 7.10 The Applicants further submitted that their case as can be deciphered from the affidavit verifying facts pertain to procedural issues. These include the failure to subject the Applicants to a hearing and to avail the JCC report to the Applicants. That this was contrary to the Constitutional Court decision in the case Mutembo Nchitd7J which determined that according to the dictates of the rules of natural justice, the report and findings of the tribunal ought to have been availed to the Petitioner. 7. 11 The Applicants reiterated that the decision of the JCC which was being challenged was not an interlocutory decision. The Supreme Court case of Mutembo Nchitd7J was therefore supposedly distinguished from this case. 7.12 As regards the Respondent's submission that this Court would be delving into constitutional issues which are the preserve of the Constitutional Court, if the Court proceeded with the judicial review, the Applicants' argument was that judicial review proceedings are guided by Order 53 RSC for -R20- which the High Court has jurisdiction. That on the other hand, the Constitutional Court Rules have no provision for commencement of judicial review proceedings in the Constitutional Court. . ..., 7.13 Furthermore, that the Supreme Court in the Mutembo Nchito(7J and Nigel Mutunat11J cases, found no issue with the commencement of proceedings for judicial review in the High Court, notwithstanding that these cases dealt with constitutional provisions including the appointment of ad hoc tribunals to try the Petitioners. 7 .14 It was submitted that case law as established in the cited cases allow a party who has been subjected to a statutory body such as the JCC to subject a decision to judicial review. 7 .15 It was submitted that it was not correct to argue that individuals affected should only approach this Court after the conclusion of proceedings envisaged under Article 144 of the Constitution were concluded. That this approach would take away the jurisdiction of this Court to hear judicial review matters, as the Court is vested with authority to entertain applications regardless of whether or not a final decision had been made. 7.16 It was additionally submitted that the Applicants were not challenging constitutional provisions, but the jurisdiction of the JCC to hear the Applicants under circumstances alluded to in the skeleton arguments . That the JCC cannot, therefore, proceed to hear the new complaint and the Applicants have the right to approach this Court by way of judicial review to consider the process by which the JCC's decision was made. -R21- 7.17 In reply, the Respondent reiterated that as demonstrated in the Applicant's affidavit verifying facts, the Applicants had not produced the previous complaints alluded to, to enable the Court to compare the same with the recent complaint. That this was a deliberate suppression of material facts and breach of duty to disclose material facts. 7.18 Regarding the breach of natural justice; with respect to the establishment of the prima facie case by the JCC, it was submitted that the Applicants did not at any time allege that they were never given an opportunity to be heard in their affidavit verifying facts. That the Applicant's argument was a mere afterthought to justify the decision to grant leave. 7.19 Turning to the argument based on Article 144 (2) of the Constitution and Section 24 of the Judicial Code of Conduct, it was submitted that it was not permissible to pit a constitutional provision with a statutory provision. 7.20 It was reiterated that the proceedings before this Court would require interpretation of the Constitution and this Court did not have such jurisdiction. 7 .21 In relation to the argument regarding rules of natural justice, it was argued that the jurisdiction conferred on the JCC by Article 144 (2) of the Constitution, in making a prima facie case, does not include a right to be heard at this stage. The case of Chiluba v. The Attorney Generalf12J was cited. 7.22 In conclusion, it was submitted that at this stage, where a party had applied for judicial review, it was not enough for the Court to rely on the prima facie case established by the -R22- Applicant. According to the Solicitor General, the Court must consider whether the law and the facts presented to discharge leave are meritorious as established in the Attorney General v. Nigel Mutuna & Others11J case. 8.0 CONSIDERATION AND DETERMINATION 8.1 We have carefully considered the facts, and the arguments thereof, of which we have labored to summarize, in order to demonstrate the level of our appreciation of the issues we are judicially called upon to resolve. 8.2 We are mindful that judicial review as a public law remedy is a court process by which aggrieved citizens are enabled to challenge the illegalities of decisions made by public bodies or, authorities. It is, therefore, settled that the remedy is necessary for checks and balances, and for accountability of public bodies, to ensure that both the governed and the government adhere to the rule of law. Undoubtedly, where judicial review is properly employed and tenable, it guarantees protection of citizens against bureaucratic excesses ( see Amanda Muzyamba and Another v Attorney Generalf13J. 8.3 And it should be remembered that recourse to judicial review in the context of Order 53 RSC is not absolute. Therefore, the first tier of this process is an application for leave to apply for judicial review. And paragraph 53 / 14 / 55 of the White Book 1999 Edition, outlines the factors that the High Court should generally consider at the stage when leave is sought, thus: The purpose of the requirement of leave is: -R23- 8 .3.1 to eliminate at an early stage any applications which are either frivolous, vexatious, or hopeless. to ensure that an application is only allowed to proceed to a substantive hearing if the court is satisfied that there is a case fit for .further investigations. 8.4 And 1n concurrence with both the Applicants and the Respondent, at this stage, an applicant is duty bound to bring material available which on quick perusal, the Court would be able to discern that it discloses issues fit for further investigations. 8 .5 The next stage in the application for judicial review is the full investigation stage at which the party seeking the Court's intervention is required to establish either that the process of reaching the decision by the authority concerned was not fair in that, the rules of natural justice were not observed (procedural impropriety) or, that the decision arrived at was unreasonable by Wednesbury 's standard (irrationality) or, that the decision arrived at was tainted with illegality (ultra vires). 8.6 We granted to the Applicants an ex parte order for leave to commence judicial review proceedings based on the material that was before us on 28th September 2024, and on how the supporting documentations were drafted. This was the first stage referred to above as provided under Order 53 RSC. 8 . 7 But, before we could proceed to the n ext stage, which is the full investigation stage, the Respondent invoked Order 53 rule 14 / 4 RSC, which provides that: -R24- - - - - - - - -- - - - - - - - - - 8. 7. l It is open to a respondent (where leave to move for judicial review has been granted ex-parte) to apply for the grant of leave to be set aside (see paras 53/14/62 to 53/14/64, below); but such applications are discouraged and should only be made where the substantive respondent can application will clearly fail. show that the 8.8 In rendering further guidance to the object of the above stated practice note, the Supreme Court in the case of Attorney General v. Nigel Mutuna and 2 Others<11J, stated that that at this stage, it is open to a litigant challenging the grant of leave, to either bring evidence or argue on points of law or fact or both, and show that the main application was certainly bound to fail. And that, the Court is entitled to delve into the merits of the main inquiry, to determine whether or not an application to discharge an order granting leave falls within the ambit of Order 53 Rule 14 /4 RSC. 8.9 The grounds in summary upon which the Respondent seek to discharge the order grating leave are as follows: 8 . 9.1 (i) (ii) the Applicants did not disclose material/acts; the decision of the JCC to reopen, recommend for suspension and the suspension of the Applicants are interlocutory in nature and not amenable to judicial review; (iv) (iii) the review of the constitutional mandate of the JCC as provided under the Constitution was a preserve of the Constitutional Court; and the matter relating to the President, in this case the exercise of presidential powers vested in the President under Article 144 (3) of the the Constitution was Constitutional Court. the preserve of 8.10 On account that the aforestated grounds have raised jurisdictional issues we shall deal with this issue first. -R25- 8.11 The primary'jurisdictional issues, in this context is whether this a fit and proper case for determination under Order 53 RSC, in the light of Article 128(1) of the Constitution (Amendment) 2016, which for the avoidance of doubt provides: 8.11.1128. (1) Subject to Article 28, the Constitutional Court has original andftnaljurisdiction to hear- (a) (b) (c) a matter relating to the interpretation of this Constitution; a matter relating contravention of this Constitution; a matter relating to the President, Vice President or an election of a President; violation or to a (d) appeals relating to election of Members of Parliament and councillors; and (e) whether or not a matter falls within the jurisdiction of the Constitutional Court. 8.12 A determination hinging on jurisdiction is absolutely necessary for the reason stated in the case of Kansanshi Mining PLC v Zambia Revenue Authority14J, where the Supreme Court held: 8 . 12 .1 The High Court only has jurisdiction if a matter is correctly commenced before it. 8.13 And in Anisminic Limited v. The Foreign Compensation Commission and Another<15J it was held that: 8.12.1 An order made without jurisdiction is a nullity. 8.14 Notably, the process of judicial review or administrative justice in Zambia in terms of court machinery is operationalized under the common law mechanism, particularly under Order 53 RSC. The RSC are applicable to our jurisdiction under the doctrine of default rule, by section -R26- 10 of the High Court Act Chapter 27 of the Laws of Zambia. 8.15 The applicability of judicial review as provided under Order 53 RSC, measured against the provisions of Article 128 (1) of the Constitution cannot be applied carte blanche in our jurisdiction, especially where the case is commingled with constitutional interpretation and enforcement of constitutional provisions, outside the Bill of rights. Therefore, in Nyali v the Attorney Generalf16J Lord Denning wisely guided as follows: 8.15.1 The common law cannot be applied in foreign lands without considerable qualification. Just like an oak tree, so with English common law. You cannot transplant it to the African continent and expect it to retain the character which it has in England. 8.16 It is reasonably apparent that prior to the amendment of the Constitution in 2016, the present challenge as regards the supposed procedural impropriety of this application would have been resolved without express constitutional limitation now imposed on this Court. 8.1 7 By way of illustration in the case of Attorney General v. Nigel Mutuna and 2 Othersf11J, the Supreme Court then noted that in considering the issue of whether or not to discharge leave, the Court should have considered the sensitivity and centrality of the constitutional issues raised. The said constitutional issues included the question of the interplay between Articles 91 and 98 (2 (3) and 5 of the 1996 Constitution. -R27- 8.18 Clearly, following the amendment of the Zambian Constitution in 2016, enforceability or recourse to Order 53 RSC must be compatible with Article 128 (1) of the Constitution. It is for this reason, Mulenga J, in the case of The People v. Judicial Complaints Commission, Vincent Blackskin Malambo, Chad H Muleza, Dean Mwansa Mumba and the Attorney General ex-parte Timothy Katanekwaf6J had this to say: 8.18. lDifferently the expressed, constitutional amendments that have taken place in the Zambian legal order have had the effect of somewhat limiting the High Court's power in judicial review proceedings in cases which require interpreting non-Bill of Rights constitutional provisions .... The point is thatjudicial review, being as it is, ... cannot be applied without significant modification to a country with a written constitution. 8.19 Perhaps, to add more context to the above case. Mulenga J, declined to grant leave to commence judicial proceedings on the basis that the Applicant cited excess of jurisdiction, illegality, and procedural impropriety as grounds for relief. The Court reasoned that the Applicant was inviting the Court to evaluate the conduct of the JCC by reference to constitutional provisions, which were outside the Bill of Rights. According to the Court, this was a function which, by Article 128 (l)(e) of the Constitution was reserved to the Constitutional Court. 8.20 The Respondent urged us to take the same approach here. It should be recalled that the Respondent took the view that determining the Applicants' case in this forum will r equire us to interpret constitutional provisions, for which we are divested of jurisdiction. -R28- I '- I 8.21 It was argued on behalf of the Applicants, that contrary to the Respondent's argument, the judicial review proceedings in this case were invoked under Order 53 RSC. It is therefore the High Court and not the Constitutional Court which has jurisdiction over these proceedings. The Applicants further relied on the Mutembo Nchitd7J and Nigel Mutunaf11J cases and highlighted that notwithstanding that these cases dealt with constitutional provisions, including the appointment of ad hoc tribunals, the Supreme Court found no issue with the commencement of proceedings for judicial review in the High Court. 8.22 The Applicants' argument squarely based on Order 53 RSC, would to some extent match the holding of the Kenyan Supreme Court, in the case of Edwin Harold Dayan Dande & 3 Others v. The Inspector General, National Police Service and 5 Othersl17J. Commenting on the dual approach, whereby a party may approach the Court for judicial review under the 2010 Constitution or, under Order 53 of the Civil Procedure Rules, which is similar to our Order 53 RSC, the Supreme Court stated: 8.22. llf a party files a suit under the provisions of Order 53 of the Civil Procedure Rules and does not claim any violation of rights or even violation of the Constitution, then the Court can only limit itself to the process and manner in which the decision complained of was reached or action taken ..... 8 .23 However, in so far as determining the issue of jurisdiction within our legal frame work, and in the context of this case, the question we consciously pose, bearing in mind our limitation, is how do we determine whether the issues raised -R29- by the Applicants are constitutional matters, which should by Article 128 (1) of the Constitution, be heard and determined by the Constitutional Court. 8.24 We extended our search to other jurisdictions, and encountered the case of Erica Fungai Ndewere v The President of the Republic of Zimbabwe, Simbi Veke Mubako, Charles Warara and Yvonne Masvora f18J, which we found to be quite helpful, albeit persuasive. 8 .25 This case involved an appeal against the High Court judgment, which declined to assume jurisdiction in respect of an application by the Applicant (a Judge of the High Court) for review of the recommendations of the Tribunal appointed to investigate alleged misconduct pursuant to which the President of Zimbabwe removed her from the office of High Court Judge. 8.26 As previously stated, the origin of the case emanates from the removal of the Applicant from office. The Supreme Court set out the principle that the finality of a matter of the President's decision was not a determinant factor on the question of jurisdiction. The Supreme Court guided that, what the High Court should have done was to consider the statutory framework on its jurisdiction and then decide whether there was anything in that framework ousting its decision to review the recommendations of the Tribunal after the President acted on them. 8.27 The Supreme Court of Zimbabwe referred to the Constitutional Court case of Chirambwe v. President of the Republic of Zimbabwe & Others20J, where the Court set out -R30- the test to determine whether a matter fell within the exclusive jurisdiction of the Constitutional Court, as being whether the issues raised involved an intrusion into the President's Executive powers. 8.28 The Supreme Court went further to state that the Court is required to carry out an inquiry whether the matter before it is within the exclusive jurisdiction of the Constitutional Court, and that the Court must be satisfied that there is a cons ti tu tional matter. 8.29 Referring to the case of Mayo v. Chacha & Otherst20J the Supreme Court emphasized that the Court must simply be satisfied that a matter raises questions of law, the resolution of which require the interpretation, protection, or enforcement of the Constitution. 8.30 It was clarified that mere reference to a prov1s1on of the Constitution does not imbue a matter with constitutional character. The opposite, though less persuasive, according to the Supreme Court was that the absence of a reference to the Constitution does not mean that a matter is not a constitutional matter. 8.31 Having considered the circumstances of this case and drawing some legal lessons from the case of Erica Fungai Ndewere( 1 HJ, it is necessary to state that, the fact the Applicants moved us under Order 53 RSC does not mean that we cannot go a step further to inquire, whether given the nature of the jurisdictional issues, bordering on constitutional review, we have the requisite jurisdiction to proceed to the next stage of judicial review. -R31- l 'J r 8.32 As already stated, the crux of the Applicants' application is based on the argument that the JCC had no jurisdiction to re-open a complaint based on the earlier complaints that have previously been determined, wherein the Applicants and other Judges were vindicated of incompetence or/ and misconduct. Additionally, the Applicants seek to challenge the decision of the President to suspend them from office. 8.34 Upon careful reflection of the jurisdictional issues, we reason that for the decision of the JCC to be reviewed, we shall as well be compelled albeit unconstitutionally to review the consequent decision of the President to act on the recommendation of the JCC. It is obvious the two issues are intertwined and inseparable. As evident from the Respondent's skeleton arguments, there is also a likelihood that constitutional provisions regarding the JCC's mandate, which are outside the Bill of Rights, will require our inevitable interpretation, contrary to Article 128 (l)(a) of the Constitution. ii 8.35 In our view, considering the relief sought by the Applicants in relation to the challenge of their suspension, such action on our part will inevitably constitute an intrusion into 'a matter relating to the President. We find support in the pronouncements of the Supreme Court of Zimbabwe in the Erica Fungai Ndewere<18J case, wherein it was held: 8 .35. 1 The decision to be set aside, which relates to the role of the Executive in removal of Judges, can also be said, on the authority of Milswa supra, to be a constitutional decision bearing upon the comity between the Executive and the Judicial arms of the -R32- f IJ. f State. For that reason, it must be passed upon by the highest court in constitutional matters. 8 .36 We are also fortified by the South African case of Mandlakayise John Hlophe v Judicial Service Commission and Othersf21J, regarding the constitutional role of the Judicial Service Commission akin to our JCC, the Court held: 8.41.1 The JSC, as stipulated by the Constitutional Court in the First Certification Judgment, plays a "pivotal" role in the appointment and removal of Judges. And, ''there is no dispute that the issues relating to the composition process and processes of the JSC are constitutional matters of import. 8 .37 As to the apparent universal rationale why constitutional matters are generally and exclusively reposed 1n Constitutional Courts, the answer is not far-fetched. The remarks of Ngcobo C. J, stated in the South African case of Doctors For Life International v Speaker of the National Assembly and Others<22J. are compelling to cite, he stated that: 8.37.1 The purpose of giving [the Constitutiona'IJ Court exclusive jurisdiction to decide issues that have important political consequences is 'to preserve the comity between the judicial branch of government' and the other branches of government 'by ensuring the only highest Court in constitutional matters intrudes into the domain' of the other branches of government. The principle underlying the exclusive jurisdiction of this Court under section 167 (4) is that disputes that involves important questions that relate to sensitive areas of separation of powers must be decided by this Court only. Therefore, the closer the issues to be decided are to the sensitive area of the separation of powers, the -R33- T 'I C' more likely it is that the issues will fall withins. 167(4). 8.38 A complete and effectual determination of matters in controversy herein would inevitably involve an inquiry touching on interpretation of the constitutional mandate reposed in the JCC, dealing with processes of the JCC leading to the removal of a judge from office or otherwise. Allied to this, the inquiry would also extend to validate or invalidate the exercise of power by the President to suspend a judge on the recommendation of the JCC as provided by Article 144(3) of the Constitution. It is manifest and literally so, these are matters that are prima facie within the exclusive jurisdiction of the Constitutional Court, and not the High Court. 9.0 CONCLUSION 9 .1 In the light of the foregoing, we have come to the inescapable conclusion that the Applicants' application for judicial review under Order 53RSC, is constitutionally encumbered, and cannot proceed to the substantive inquiry, for want of jurisdiction. 9.2 And having resolved that we have no jurisdiction, it will be moot and otiose to venture into the other grounds raised by the Respondent for s eeking to discharge leave. 9 .3 As to the issue of costs, in John Sangwa v the Attorney and Another<23J the Constitutional Court held: 9 .2.1 The general rule in constitutional and public interest litigation is that, where a litigant brings a case raising an important constitutional and the public constitutionality of a statute, as in casu and loses such as interest testing issue, -R34- r,. (. l - - - - - - - - - - - - - - the challenge, condemned in costs. that litigant should not be 9. 4 Accordingly, we make the following orders: 9 . 3 .1 (i) the order for leave to commence judicial review is hereby dated 28th September 2024 discharged; (ii) the adjunct order for stay of proceedings of the JCC is consequently discharged; and (iii) We make no order as to costs. 9.5 Leave to appeal is granted. DATED THIS 4L 1 J DAY OF ~ 2024 C: .. .......................••.•••....••........ HON. MR. JUSTICE C. ZULU ...................... ~ : ................ . HON. LADY JUSTICE C. B. MAKA -.................. . ........................ ~ HON. LADY JUSTICE T. S. MUSONDA -R35-