Milingo Lungu v The Attorney General and Anor (2022/CCZ/006) [2023] ZMCC 23 (7 November 2023)

, • :i IN THE CONSTITUTIONAL HOLDEN AT LUSAKA (Constitutional Jurisdiction) COURT OF ZAMBIA 2022/CCZ/006 IN THE MATTER OF: THE CONSTITUTION OF THE LAWS OF ZAMBIA OF ZAMBIA, CHAPTER 1, VOLUME 1 IN THE MATTER OF: ARTICLES AND 23S (b) OF THE CONSTITUTION CHAPTER 1 (S), 128, 173 (1) (a), (c), (g), 180 (7), 216 (c) OF ZAMBIA ACT, 1, VOLUME 1 OF THE LAWS OF ZAMBIA IN THE MATTER OF: THE STATE PROCEEDINGS OF THE LAWS OF ZAMBIA ACT, CHAPTER 71, VOLUME 6 SECTION 8 OF THE CONSTITUTIONAL COURT ACT, 2016 IN THE MATTER OF: BETWEEN MILINGO LUNGU AND - � --:...___,_,.. .. ___ i CONSTITUTIONAL COURT OF REPUBLIC OF ZM,;EIA I ZAMBIA •L 06 N�V 2��· REGISTRY 7 PETITIONER THE ATTORNEY GENERAL P O BOX 50067, LUSAKA 1'1 RESPONDENT ADMINISTRATOR GENERAL 2"d RESPONDENT Coram: Shilimi, DPC, Mulonda, Mu life JJC on 12th October, Musaluke, Mwandenga, Chisunka, 2023 and 6th November, Kawimbe and For the Petitioner: Mr S. Sikota, SC of Messrs Central Chambers and Mr M. Chitambala of Lukona Chambers For the 1st Respondent: Mr. M. Nkunika and Mr C. Ngoma of Simeza Sangwa Associates For the 2nd Respondent: Mr. K. M. Kalumba, Acting Assistant Administrator General RULING Mabenga v The Post Newspaper ·umited (Appeal No. 069/2012} (2015) (21 ZMSC 20 Cases Referred to: (2002) 2 AC 357 v Porter 1. Magill 2. Michael May 2015} 3. R v Sussex 4. President Justices, of the Republic Case CCT16/98 5. JCN Holdings 6. Human Rights 7. John Kasanga v Development case No. 14959-K and Another of 2018 (2008} ZMSC 45 Ex Parte McCarthy {1924) 1 KB 256, (1923) ALL ER Rep 233 of South Africa v The South African Rugby Football Union & Others, Bank of Zambia, Appeal No. 87 /2012, at 494 v Ibrahim Mumba and two others, Appeal No. 21 and 24 of 2005 of South African Jewish Board of Deputies. Force and Others v Monnig and Others (610/59) 8. South African v Bongani Human Rights Masuku and Others, on behalf Commission Case CCT 14/19 South African Defense 4 All SA 691 9. Council of Review, (ZASCA 64; (1992} 10. Bernett 11. Garuba v Omokhodion v ASSA Bank Ltd (2011} 2019 (3) SA 92(CC) 15 NWLR (Pt. 1269} to: Legislation Referred 1. The Constitution 2. The Constitutional 3. The Judicial Court Rules, (Code of Conduct) S. I. No. 37 of 2016 Act No. 13 of 1999 Act No. 2 of 2016 of Zambia (Amendment) to: Works Referred 1. Black's Eighth Law Dictionary, Edition R2 1.0 Introduction and background (1.1) When we heard this application, we sat with our brother Justice Mwandenga who is currently out of jurisdiction and so the Ruling is by the. majority [1.2) This is a Ruling on a Notice of Motion filed on the 7th June, 2023 (the Motion) by the Petitioner for an Order for Recusal of Honourable Justice A. M Shilimi, Honourable Justice M. Z Mwandenga and Honourable Justice K. Mu life made by the Petitioner pursuant to Order 9 Rule 20 (1) of the Constitutional Court Rules, Statutory Instrument No. 37 of 2016 (CCR) as read with Sections 6 and 7 of the Judicial Code of Conduct Act, No. 13 of 1999 (JCCA). The Motion was accompanied by an affidavit in support sworn by the Petitioner together with a list of authorities and skeleton arguments dated 7th June, 2023. [1.3) The Petitioner seeks a determination by this Court of the following questions as to whether: a. Honourable Justice Mr. Arnold Mweetwa S!iilimi, Honourable Kenneth continue Petitioner 2023/CQ/00S Mu life and Honourable to sit on the panel to determine as an Advocate· the appointment Zachariah Mr. Mudford this matter in light of in the matter under cause of the said Judges is questioned. is involved wherein Justice number Justice Mr. can Mwandenga the fact that the R3 " b. Honourable Justice Mr. Arnold Mweetwa Shilimi, Zachariah Mu life and Honourable Justice to sit on the panel to determine Mr. Mudford this matter in light Honourable Justice Mwandenga Mr. can of the fact that the Justice Mr. P. Mrs. M. S. Mulenga, that sat and Mr. Chisunka or put an order on the file to show Justice and Justice Kenneth continue panel comprising Mulonda, continued why they will not continue to Justice to sit had not recused Justice Mrs. Mr. M. Musaluke themselves sit in this matter. A. Sitali, (1.4] In the affidavit filed in support of the Motion, it was deposed that the Petitioner commenced this matter in 2022 challenging the revocation of the indemnity agreement between himself and the Director of Public (OPP). Prosecutions That the said matter had a panel of Judges that comprised of Honourable Justice Mrs. A. Sitali, Justice Mrs. M. S. Mulenga, Justice Mr. P. Mulonda, Justice Mr. M. Musaluke and Justice Mr. M. K . Chisunka. It was deposed that Honourable M. M. Justice Munalula was also part of the panel but that she had recused herself. (1.5] That during the period of hearing the Petition, new Judges were to be appointed and promoted to this Court by the Republican President. (1.6] That upon appointment of the new Judges was a new panel of Judges constituted to hear his matter. That the new panel comprised of Honourable Justice Mr. Arnold Mweetwa Shilimi, Honourable Justice Mr. Kenneth Mulife Zachariah and Honourable Justice Mr. Mudford Mwandenga. R4 " [1.7) It was deposed that the deponent was advised by his advocates on record and that he verily believed the same to be true that the changes in composition of the panel of judges was not sanctioned by any order, recusal or disqualification of the previous panel. [1.8) That the three new Judges in question were a subject of a Petition between Isaac Mwanza and Maurice Mutale [sic] v The Attorney General 2023/CCZ/00S where the appointment of the said Judges was being challenged and the Petitioner was one of the Advocates representing the 2nd Petitioner in that matter. [1.9) It was deposed that the Petitioner was advised by his appointed advocates on record and that he verily believes the same to be true and correct that the new panel cannot continue to sit on the panel to determine this matter because involved the Petitioner was in the matter bearing cause No. 2023/CCZ/00S. [1.10) Further, that the Petitioner was advised by his advocates on record and that he verily believes the same to be true and correct that there is a reasonable apprehension that the said Judges will not decide this matter with impartiality and hence they should not continue to sit on the panel to determine this matter. RS • [1.11) It was the Petitioner's position that he had further been advised by his appointed advocates on record and he verily believes to be true and correct that there was a risk of violating a cardinal of the guarantee Constitution, that is the right to a fair trial, if the said Judges did not recuse themselves. [1.12) It was deposed that the Petitioner's Advocates on record reiterated their advice to the Petitioner that this Court is undoubtedly cognizant of its oath of office to do justice to all in accordance with the law and without fear or favour and dutifully be impartial thus by avoiding sitting and hearing is called the matter when their suitability in question would save the interest of justice. [1.13) It was added that to refuse this application would ground definable judicial misconduct on the part of the Judges whose suitability to· determine this matter is in question. [1.14) In the Petitioner's written submissions, it ·was contended that this application was competently before this Court as it had been made by way of Notice of Motion pursuant to Order 9 Rule 20 (1) of the Constitutional Court Rules which provides that: Any interlocutory application as the case may be. or notice made under the Act shall be of motion, made by summons R6 [1.15) The Petitioner proceeded to address the recusal of the Judges in question by citing sections 6 and 7 of the Judicial (Code of Conduct) Act No. 13 of 1999 which provides that: the officer's previously practiced concerning the matter concerning a party of the facts or discussion or the officers' spouse has any personal, . or indirectly shall not adjudicate directly in the matter; shall not of any or take part in any in 'which on the grounds that served whether witness officer officer the matter; is handling knowledge or personal be questioned on or take part in bias or prejudice has been a material the proceedings; of any proceedings as a legal practitioner with whom the officer or discussion might reasonably has a personal legal practitioner• seven, a Judicial 6. (1) Notwithstanding section any consideration adjudicate matter in which the officer legal or pecuniary interest . (2) A judicial consideration impartiality (a) the officer or a party's concerning (h) the officer (c) a legal practitioner law or served (d) the officer or a party to the proceeding; (e) the officer parent or child or any other member of the officer's matter in the subject pecuniary the proceeding; or could substantially affect to the officer (I) a person related (i) is a party to the proceeding of a party; (ii) is acting (iii) has any interest or (iv) is to the officer's the proceeding. 7. (1) A judicial commencement disclose the parties' whether officer, as a legal practitioner that could interfere disqualification to consider, legal representatives of the proceedings disqualified individually or as a trustee, the officer's or an officer, knowledge interest director officer likely or not to be a material in the proceedings with a fair trial has a family under section six shall, at the of the matter, or consideration or the parties and shall request in the absence of the or the spouse of the officer or has any other interest that or the officer's spouse, or hearing; or a trustee witness in to waive the disqualification. R7 officer has disclosed an interest other than bias or prejudice concerning and the legal representatives may agree a party to the proceedings, the that the officer (2) Where a judicial personal parties adjudicates (3) A disclosure form part of on the matter. the record or an agreement of the proceedings made under subsection in which it is made. (2) shall [1.16] It was submitted that the above provisions are built into the test that now enjoys universal application, which is firstly, that in considering an application for recusal, this Court presumes that judicial officers are impartial in adjudicating a particular dispute, when the and secondly, reasonable_ basis for requesting a Judge(s) to recuse themselves exists, the application for recusal has to be made. It was added that the import of sections 6 and 7 cited above, was that a judicial officer shall not sit and adjudicate on a matter where there is a real possibility of bias. The case of Magill v Porter1 was cited where the test for recusal was stated to be as follows: Whether would conclude a fair-minded and informed observer, that there was a real possibility having the facts, considered that the Judge was biased. (1.17] The Petitioner proposed to adopt the above test in this application as it was the universally accepted test for recusal of Judges and further argued that the impartiality and independence of the said Judges is questionable given the circumstance highlighted in the Petitioners' RS affidavit in support of the Notice of Motion. the test on In emphasising recusal, the Petitioner proceeded to call into aid the case of Michael Mabenga v The Post Newspapers Limited 2 where the Supreme Court opined as follows: That the Judge in the Court below should have recused herself because there was a likelihood that she would be biased against '[T)he learned The Court stated: in which the lawyer appearing different matter. judge should not have handled before her was prosecuting the judge in a the appellant. a matter [1.18] It was added that the Supreme Court in the above matter reasoned that counsel cannot prosecute a judge in one case and at the same time appear before that judge in another proceeding. That the Supreme Court went on to hold that "any party to an action is entitled to transfer a matter from one Judge to another Judge where a Judge's impartiality may be reasonably questioned." It was submitted that in re-echoing the principle that a Judge should not place themselves in a position where their impartiality may be reasonably questioned, the Supreme Court drew from the English case of R v Sussex Ex Justices, Parte McCarthy 3 where it was held that: Not only must justice be done; it must also be seen to be done. R9 • [1.19] It was the Petitioner's submission person that any fair-minded would conclude that the Honourable Justices in question would be biased towards the Petitioner as he is one of the advocates representing the 2nd Petitioner in another matter that questions of the the appointment said Judges. That the Petitioner, in the discharge of his duties as counsel in that matter, may have submitted or said certain things that may be received by the said Justices as a personal affront, that therefore it is in the interest of justice that they ·recuse themselves from this matter. [1.20] It was further submitted that to refuse this application would result in a violation of a cardinal constitutional guarantee, that is, the right to a fair trial, upon which the entire judicial edifice is built. It was added that allowing the said Judges to sit in this matter would also violate Article 18 of the Constitution which guarantees a fair trial by an independent and impartial Court. The Petitioner agreed with the Constitutional Court of South Africa in the case of the President of the Republic of South Africa v The South African Rugby Football Union & Others4 where it was held as follows: RlO At the very outset we wish to acknowledge and her or that a litigant his counsel who find it necessary to apply for the recusal of a judicial officer has an unenviable task and the propriety of their motives should not lightly be questioned. Where the grounds are reasonable counsel must advance the grounds without fear. On the part of the Judge whose recusal is sought, there should be a full appreciation of the admonition that she or he should not be unduly sensitive and ought not to regard an application for his [or her] recusal as a personal affront. [1.21] In addressing the argument that the changes made to the panel were not sanctioned by any Court order or previous recusal, the Petitioner relied on the case of JCN Holdings v Development Bank of Zambia5 where the Supreme Court stated that a transfer of a matter from one Court to another must be sanctioned by the order of the Court. It was contended that this Court ought to allow this application as the change of the panel was not sanctioned by any Court order neither did the panel that handled this matter previously, recuse themselves or advance any reasons for the change. [1.22] It was highlighted that the order of recusal sought was in this matter meant to protect the efficacy of the proceedings and the Petitioner's right to a fair trial. It was emphasised that a refusal of this application risked this matter being adjudicated Court and upon by an impartial Rll ... would also ground this Court in definable judicial misconduct. It was prayed that the order of recusal of the Judges in question be granted. [1.23) In orally augmenting the written submission, the Petitioner submitted that, the issue for determination was whether there was a proper and legal reconstitution of the panel previously by the constituted President of the Court to hear and determine the Petition filed by the petitioner. The reconstitution referred to was said to have happened in two phases, firstly by the substitution of some of the judges initially selected by the Court President to hear and determine the petition by the judges that were newly appointed by the Republican President and ratified by the National Assembly. That the second limb involved the decision of the President of the Court to further the bench reconstitute to hear this Petition by enlarging the bench from five judges to eleven. [1.24) It was argued that the President of the Court having executed her administrative function of constituting the initial panel under Section 4 (2) of the Constitutional Court (CCA) Act wasfunctus Officio and did not have any further administrative function to perform. That any further changes to the duly constituted panel would have had to follow the exercise of a judicial function, which requires that an order of the R12 ' court is generated either through an application or by by the parties the court and that in this matter there is no such Order and neither is there any application on record made by either of the parties to the matter requesting for enlargement of the bench to include the judges referred to in the notice of motion before this Court. In support of his argument, the Petitioner referred this Court to the Pakistan Supreme Court decision in Human Rights case6 where the Court in considering the provisions of Order XI of the Supreme Court rules of 1980, decided that once a bench has been constituted, cause list issued, and the bench is assembled for hearing cases, the Chief Justice cannot reconstitute the bench except in cases of recusal by any member of·. the bench or unavailability or to sit due to prior commitments, illness where the rules require a three-member bench instead of two. [1.25) The Petitioner further submitted that although this was the first time such a matter was coming up before this Court, a similar matter which they contended is on all fours with this case, namely the case of Micheal Mabenga v The Post Newspapers 2 where it was held that the learned judge should not have handled a matter in which a lawyer appearing before her was prosecuting the judge in a different matter R13 • referred to above was considered by the Supreme Court and that, that decision is the law as it stands. 2.0 Respondents case [2.1] Both the 1st and 2nd Respondents did not file affidavits in opposition and skeleton arguments. The 1st Respondent submitted on points of law and the 2nd Respondent .adopted the l't Respondent's submissions. [2.2] The.1st Respondent submitted that the practice and procedure in this Court is as provided for under section 9 of the CCA which provides that: vested 9. The jurisdiction procedure, be exercised Rules. in the court shall, in the manner provided as regards practice and by this Act and the [2.3] Reference was also made to Section 4 (2) of the CCA which clearly. provides that the power to constitute and reconstitute panels is reposed in the President of the Court. [2.4] It was the 1st Respondent's further submission that there is no requirement in either the CCA or the Rules for a Court order for reconstitution of a panel and that reliance on the Pakistan Supreme R14 Court decision, whose practice and procedure is different does not aid the Petitioner. (2.5] With regard to the case of JCN Holdings v Development Bank of Zambia5 cited by the Petitioner, in aid of its argument on the need for a court order for the transfer of a matter from one judge to another, it was the 1st Respondent's submission that the said case dealt with a specific provision under the High Court Act which deals with transfer and that this case is inapplicable in casu as there is no similar provision in the constitution, CCA, CCR or indeed the JCCA, that require an Order of reconstitution by the as suggested Petitioner. [2.6] With regards to the issue of recusal of the judges listed in the notice of motion, the 1st Respondent referred the Court to the Supreme Court decision in the case of John Kasanga and Another v Ibrahim Mumba and Others7 where the court stated as follows: of the legislature between Act that any relationship It is not the intention of conduct) Counsel representing disqualified (code the judicial officer and any party should make a judicial from adjudicating in the matter. in enacting a judicial officer RlS ' ' [2.7] It was argued that the Micheal Mabenga2 case is distinguishable from the case at hand as the circumstances in the two matters are different and that the notice set out of motion has not specifically the actual ground upon which the Petitioner seeks the listed judges to recuse themselves. [2.8] Finally, it was the 1'1 Respondent's submission that the arguments advanced in this case as the basis of recusal any of do not fall within the stipulated grounds under Section 6 of the JCCA as is required and as guided by the Supreme Court in the John Kasanga 7 case above. 3. Petitioner's reply [3.1] In reply, the Petitioner, submitted that there was no argument that rules and Procedures are prescribed and that the 1'1 Respondent had failed to address the argument that the Pakistan case relates to an Order similar to Section 4(2) of the CCA. That Pakistan being a Commonwealth Country, invariably makes it's decisions value. of very high persuasive It was further 4(2) argued that Section of the CCA deals with constitution of panels and allocation of matters and not reconstitution. R16 [3.2) The Petitioner also submitted that the claim by the 1'1 Respondent that the JCN Holdings 5 and the Micheal Mabenga2 cases are inapplicable to matters before the cas_e at hand is unfounded. That the principles of law in the two cases resonate with circumstances of the current motion. [3.3) It was further submitted in reply that the grounds upon which this motion is premised are clearly enumerated in the motion itself and the facts disclosed in the affidavit. [3.4) Finally, it was the Petitioner's submission that the facts which have been set out in this matter are that the Petitioner took up a matter which touches personally on the Judicial officers in question and that the Micheal Mabenga2 case states that, that kind of situation is a reasonable indicator that there may be some personal bias and that there is no need to show actual bias. 4. Determination and Decision [4.1) We have considered and skeleton the application, affidavit in support Counsel arguments, submissions of learned in support of the application and the Respondent's submissions in opposition to the application. [4.2) We shall first consider the issue of whether the three listed judges can continue on the panel to determine this matter in light of the fact that the Petitioner was involved as an Advocate in the matter under cause number 2023/CCZ/005. R17 ' . [4.3) The law on recusal of a judge is well settled and was extensively discussed and laid out in our Ruling in this matter of 9th October, 2023. We shall however, once again endeavour to reiterate the basic principles of the law before applying the same to the facts as laid us. down in the application before [4.4) Recusal is defined by Black's Law Dictionary, Eighth Edition as removal of oneself as a judge in a particular matter especially because of a conflict of interest. In broad terms, the requirement for recusal arises in cases where there is reasonable fear that a judge may not act impartially in the determination of a matter before them. [4.5) There is however, a presumption of Judicial on the part impartiality of judicial officers. Impartiality is defined by the Royal Spanish Academy 2022 (https:/dte.rae.es/impartial) as follows: means an absence Impartiality against someone proceed with rectitude. of prejudice or something which or bias in favour of or to judge or makes it possible [4.6) Further Article 122(1) Act No.· 2 of the Constitution, of 2016 provides that: (1) In the exercise of the judicial only to this Constitution of a person or direction and law and not be subject or an authority. authority, the Judiciary shall be subject to the control [4.7) As stated in our said previous the Ruling on this matter, presumption of impartiality for the under our law is critical legitimacy of a judge's performance of his or her constitutional and legal functions. It is anchored on the understanding that the oath of R18 office taken by judges coupled with their training and experience, equips them to make determinations based only on merit in all disputes before them. (4.8) Superior Courts in other jurisdictions have in a plethora of decisions applied their minds to this fundamental principle of law and our understanding of the law on this matter is indeed fortified by the jurisprudence emanating In the South from these jurisdictions. African case of South African Human Rights Commission on behalf of South African Jewish Board of Deputies v Bongani Masuku and others8 , the Court stated as follows: that the presumption their oath of office of all disputes. recognised will discharge Courts have repeatedly of the judiciary officers the impartial adjudication through that - this stating this Court recognised 'In applying presumption disputes. and experience fairly contradictory the test for recusal, are impartial officers that judicial This is based on the recognition prepare determining where the truth may lie in a welter of that legal training task of Courts have recognised evidence. In SARFU, judges for the often-difficult a in adjudicating (4.9) The Court went on to state that: All this to say that the law does not suppose bias. If it did, imagine that judges assumption are individuals discipline, intellectual of applying capable of cases which will seize them during multiplicity of the bedlam that would ensue. There is an and their minds to the their term of of careful conscience the possibility R19 J • ' i,. ,1 .. without imparting ends justified their own views or attempting by their own personal in feebleness to office, achieve opinions. 'that a judicial to be biased' This was be presumed has the effect of impartiality will not lightly The presumption officer in the SACCAWU, confirmed not only is there a presumption the court, dislodged. but that this is a presumption (emphasis in favour added) that, where this court emphasised of of the impartiality that is not easily (4.10] We adopt the reasoning of the South African Constitutional Court in this matter as our own. The standard for recusal is not only an objective one, but is very high more so in a constitutional court due to the need to preserve the presumption of impartiality which is necessary for the effective functioning of courts of law and to prevent forum shopping. [4.11] It is not enough to merely allege that there is a danger of bias without producing cogent evidence, neither is it enough for the person alleging to merely have suspicions or apprehensions. Thus, in the South African case of Council of Review, South African Defence Force, and others v Monnig and Others9 , it was held that: bias is objective it rests upon the Applicant. The test for apprehended establishing unreasonable apprehension concerning bias for such an application. justifiable in the light must be assessed person reasonable as they emerge at the hearing and the onus of An unfounded or officer is not a of the a judicial The apprehension of the true facts that It follows of the application. R20 facts which were taken into account incorrect must be ignored in applying the test. (emphasis by an applicant added) [4.12] In another South African Constitutional Court Authority, v Bernert ABSA Bank Ltd10 it was stated that: of nature has ruled officer who alleges of bias simply underscore the formidable upon the litigant of impartiality have their case heard by another and the double requirement of the burden bias or its apprehension. to successfully the judicial because him or her. Nor should litigants that, by seeking The presumption reasonableness resting The idea is not to permit a disgruntled litigant complain be encouraged against officer of a judicial the disqualification believe officer who is they will, Officers have a likely from duty to sit in all cases in which they are not disqualified sitting. their judicial functions. choose their cases and litigants application substantial of bias. (emphasis do not choose their judges. unless a reasonable This flows from their duty to exercise observed, An it is based on apprehension for recusal should for contending grounds As lit) has been rightly the case in their favour. not prevail, Judicial judicial judges do not to decide added). to [4.13] We have given all due consideration to this issue and we find that it is both a matter of fact and law. The brief facts are that the Petitioner filed a Petition, before this court Cause No. 2022/CCZ/006, sometime in 2022 seeking various reliefs in relation to his previous role as the provisional liquidator of Konkola Copper Mines PLC. (4.14] On 17th March, 2023, the Petitioner through his law firm, knowing very well that he was already before this Court in the above stated R21 l < ' r ' matter, put himself on_ record for the 2nd Petitioner in a petition, Cause No. 2023/CCZ/00S filed by two Zambian citizens against the Attorney General before this Court challenging the appointment of judges by the President of the Republic of Zambia. of the A perusal Court record shows that the Petitioner personally once appeared before a single judge on 23rd March, 2023 and thereaft er, played no further role in the matter. The judgement of the Court in this matter also shows that a Mrs M. Musonda Mwape represented the Pertitioner's law firm. [4.15] The Petitioner's Affidavit in support of Notice of Motion for an Order for recusal and in particular paragraphs 13, 14, 15, 16 and 17 clearly shows that the perceived apprehension of biasness is based on advice by his Advocates and not personal apprehension as required by law. [4.16] The Petition in cause No. 2023/CCZ/00S which challenged the appointment of judges, including the three listed judges, was between two private citizens namely one Isaac Mwanza and Maurice Makalu and The Attorney General. The three listed judges were neither parties nor witnesses to the matter. [4.17] Taking into account the above, it is our considered view that the three listed judges' recusal is not tenable either in fact or l_aw. The Petitioner has failed to produce cogent evidence of alleged perceived bias against the listed judges sufficient to dislodge the presumption of impartiality. It is not enough to merely that allege R22 , , ' 1. 1' 1 • because of a peripheral role he played the in a matter between State and two private citizens, then the listed judges who were neither parties nor witnesses in the matter are likely to be biased. The high standard required to dislodge the presumption of impartiality has clearly not been met. Further, in any collegial system where the court consists of a number of judges, there is even less ground for objection. [4.18] The Petitioner heavily relied on the Micheal Mabenga2 Case. It is our considered view that from the this case is distinguishable Micheal Mabenga2 case. The impugned judge in that case was a before party to the proceedings a tribunal in which there was an .. appeal pending against the judge, in which Counsel for the Appellant was still representing the complainant when the matter came before the same judge. In casu, not only did the Petitioner· play an insignificant before role in the proceedings but this court, the listed judges were not parties to the proceedings. The matter has also since been concluded and closed. [4.19] Having weighed the facts on record we are and the law on recusal, of the firm view that the presumption by of impartiality enjoyed the three listed judges has not been rebutted. For the foregoing reason the three we find that the application for judges to recuse themselves has no merit and is therefore, dismissed. R23 [4.20] We now move to the second issue of whether the three listed judges can continue to sit on the panel to determine this matter in light of the fact that the panel comprising Justices A. Sita Ii, M. S. Mulenga, P. Mulonda, M. Musaluke and M. Chisunka that sat and continued to sit had not recused themselves or put an order on record to show why they will not continue to sit in this matter. [4.21] This issue was also exhaustively dealt with by this Court's Ruling of 9th October, 2023. We wish to reiterate and restate that the reconstitution function of the panel is an administrative of the President of the Court. Reconstitution is done routinely as necessary. The function is clearly provided for 4(2) of by Section the CCA which provides that: to the provisions Subject sitting may direct. of this. of such judges added) be composed (emphasis Act, the Court shall, of the Court as the President at any [4.22] The "President" is defined by section 2 of the CCA and means the "President of the Court appointed under Article 127 of the Constitution." Article 138 (2) further provides that: The President administration Chief Justice. of the Constitutional of the Constitutional Court shall be responsible Court under the direction for the of the [4.23] It is our considered view that the decision to constitute and reconstitute panels is purely administrative and based on the R24 authority of the Nigerian case of Garuba v Omokhodion , administrative decisions are not judicial decisions. [4.24) Reliance was put by the Petitioner on the decision of the Supreme Court of Pakistan in the Human Rights Case which it was argued value. was of persuasive It is our considered view that where there is an explicit statutory provision providing for the constitution and reconstitution of the panels as per section 4(2) of the CCA, this authority is of no relevance. [4.25) Reliance on the JCN Holdings 5 case does also not help the Petitioner as that matter dealt with provisions of the High Court Act in transfer of matters, provisions that are not applicable to this Court. (4.26) Our firm view therefore, remains that the composition of the Court for purposes of hearing an application is an or substantive matter function administrative that rests upon the President of the Court. A challenge to the composition of the Court outside the purview of a recusal process is therefore untenable. [4.27) Finally, our orders are as follows: 1. The application for the recusal of Honourable Justice Arnold M. Shilimi, Honourable Justice Kenneth Mulife and Honourable Justice R25 • Mudford Z. Mwandenga from cause number 2022/CCZ/006 is hereby dismissed for want of merit. 2. The constitution and reconstitution of panels is an administrative function of the President of the Constitutional Court and Honourable Justice Arnold M. Shilimi, Honourable Justice Kenneth Mulife and Honourable Justice Mudford Z. Mwandenga shall continue to sit on the panel as constituted by the President. 3. We make no order as to costs . . . . . . . . � . ....... ... .... ...... .. .. ...... A. M. SHILIMI CONSTITUTIONAL DEPUTY PRESIDENT- . ) . . � COURT . ... .... ....... .... . ... .. . .. . ... . .. . . . . . .. . . . . . . .. . . P. MULOND COURT JUDGE CONSTITUTIONAL . . . . . �· ;�·�;� .. ............. .. . .. .. .... .. . � . L COURT JUDGE CONSTITUTION CONSTITUTIONAL COURT JUDGE • ..... .. .. � CONSTITUTIONAL . . . . . .. . ..... . .. K. M. MULIFE COURT JUDGE .. R26