Zambia's constitutional court upholds judge's dismissal

24 November 2023 · Carmel Rickard

Five judges of Zambia’s constitutional court have rejected an application by a former member of the high court bench, Joseph Banda, challenging the decision of the country’s president, Hakainde Hichilema, to remove him from office in May 2022. The action against Banda is part of the current government’s declared push to fight corruption. However, in addition to upholding the decision to remove Banda, the judgment also shows that the process of holding Zambian judges to account on matters of misconduct is not operating as it should.

Read judgment

Zambia's constitutional court judges who dealt with this case began with an interesting statement: in their very first paragraph, they acknowledge that they are subject to the Judicial Complaints Commission (JCC). However, this is also the body at the centre of the case they were hearing. In terms of the judges’ constitutional mandate, they would nevertheless hear the matter, they declared.

Having dealt with and clarified that potential conflict of interest, they proceeded to the case. It had been brought by Joshua Banda, formerly a registrar of the high court, later appointed to the high court by the then-president of Zambia, Edgar Lungu, in January 2021.

As required in Zambia, his presidential appointment had first to be approved by the national assembly (NA), and so Banda was subjected to screening and vetting by various agencies like the Anti-Corruption Commission (ACC), the JCC and the Financial Intelligence Centre. None of these bodies noted any adverse reports and he was formally confirmed by the NA, before being sworn in on 14 July 2021.

But there were already storm clouds gathering. Just seven months later, Banda was informed about a complaint against him, made to the JCC and to the chief justice, by David Mwaanza, formerly a colleague of Banda before the latter was appointed to the judiciary.

Complaint renewed

An important point to the story is that Mwaanza claimed he had already made these complaints against Banda to the ACC and to some members of parliament during the investigation phase before the judge was sworn in, but that nothing had happened in response. Now he was renewing his complaint.

Banda’s response to the JCC notification was that it couldn’t fly: there were two main problems with the complaint by Mwaanza, he said. The inquiries and investigations carried out before his appointment had assessed all the complaints against him, and had found nothing that would hinder his appointment. In other words, he had been ‘cleared’ for appointment as a judge, following proper investigations, and so ‘all issues were closed’.

In addition, the complaint involved Banda’s time as a registrar, before his appointment as a judge, while the JCC was supposed to deal with issues related to judicial behaviour, in other words, behaviour after someone was appointed to the bench.

Targeted

But the JCC didn’t see it that way. Having investigated Mwaanza’s complaints, including a full hearing with Banda, the JCC recommended to the president, Hakainde Hichilema, who replaced Lungu in August 2021, that Banda be removed. Hichilema did so, in May 2022. Launched a few months later, Banda’s petition before the constitutional court was intended to challenge the process that led to that dismissal.

As part of his challenge, Banda argued that he was ‘targeted’ for investigation to show that the new government was fighting corruption. But this claim that his dismissal was politically motivated was not specifically dealt with by the court.

The attorney general responded to Banda’s action by saying that appointment did not ‘immunise’ one from allegations of wrongful and gross misconduct prior to appointment. If gross misconduct was proven, it would not carry weight to argue that the conduct was excluded from consideration simply in view of when it happened.

Extortion

So, what was it that Mwaanza claimed against Banda? Clearly, the two men had known each other for some time and, on Banda’s version, were in fact friends of a sort. Then, in 2020, while Mwaanza was an under-sheriff, he had faced a disciplinary tribunal related to alleged misappropriation of K1,800,000 that had been part of bailiff fees.

According to Mwaanza, Banda had solicited money from him to ensure that the tribunal would find in Mwaanza’s favour.

Cross-examined on these claims, Banda told the JCC that he had received money from Mwaanza, but that the funds were a ‘gift’ and for his personal use. He also claimed that Mwaanza later started trying to ‘arm twist’ him and made up a story about bribery. Because of Mwaanza’s ‘extortionist’ efforts, he (Banda) eventually gave some money to Mwaanza as he didn’t want to jeopardise his judicial appointment which was then pending ratification.

So, while it was correct that he had given money to Mwaanza, it was ‘not a refund of a bribe’. Rather, Banda repeated, Mwaanza had been extorting money from him – although Banda conceded that he did not report the extortion to any law enforcement body.

Integrity questioned

Was Banda’s removal from office ‘unconstitutional, irregular and unfair’, as he claimed? Did it in fact ‘threaten the independence and integrity of the judiciary’?

The constitutional court didn’t think so, and refused to grant him any of the orders he wanted. Yet there were shortcomings in the process, as the court’s judgment highlights.

The initial complaint by Mwaanza had indeed ‘brought [Banda’s] integrity into question’, the judges said. But, they pointed out, ‘[f]or some unknown reason [it] was either not tabled or considered, and yet it was lodged long before the ratification’ of Banda’s appointment. The JCC and the ACC should have revealed this complaint in their reports to parliament so that it could have been considered when Banda’s suitability for appointment was debated.

Shortcomings, non-compliance

While this was obviously a serious shortcoming in the whole process, the court didn’t take it any further. ‘Be that as it may be,’ the judges said, Mwaanza had revived his complaint after Banda’s appointment, and it was this letter that prompted the JCC investigation.

And there was another problem highlighted by the court: several procedural steps in the process of judicial investigation hadn’t been complied with even though they were ‘couched in mandatory terms’. It wasn’t good enough for the attorney general to argue that the JCC had the power to regulate is own procedure, since that power couldn’t be used ‘to flout constitutional provisions’.

One result of the JCC not following procedure was that Banda hadn’t been suspended before his hearing and removal. Should the fact that these processes weren’t followed invalidate the decision to remove Banda from office?

No, said the court. The complaint involved serious allegations of corrupt practices that brought Banda’s integrity into question. He had been given an opportunity to be heard on the question of corrupt practices, and under the circumstances of this case, the court said it refused to grant the declaration and the other orders asked for by Banda.

Corruption charges

While this case might be the end of the road for Banda’s efforts to challenge his removal, the ACC’s case against the former judge is just beginning. Days after Banda was dismissed, in May 2022, he was arrested and charged with corruption.

In April he was in court before a magistrate, charged with two counts of corrupt transactions: one of asking for money from Mwaanza and the other for receiving the money from him. His lawyers said the charges were vague and embarrassing, and that he was facing a duplication of charges in that they both related to the same thing.

However, the court found there was nothing wrong with the charges, and Banda then pleaded not guilty. Since then, his case has been called several times, and trial dates are supposed to be set when the case is next called.

Carmel Rickard

About the author

Recent articles by Carmel Rickard

‘No justification for the unjustifiable’: Lesotho’s ombud slams grand-scale torture, assault in Maseru prison

22 March 2024
Carmel Rickard

Lesotho’s national ombud, Tlotliso Angelina Polaki, has issued a scathing report on massive-scale torture and assaults that took place in Maseru’s central correctional institution during December 2023, leaving about 95% of the inmates of the prison injured, one dead and one who is now wheelchair-bound and will never walk again.

Major court decision on image rights benefits Ugandan soccer players

21 March 2024
Carmel Rickard

Members of Uganda’s national soccer team from the period around 2007/8 have just been awarded a payout against MTN Uganda by the commercial court. The telecom giant had a year-long contract with Proline, the players’ originating development soccer club, allowing it to use the players’ images for advertising. But MTN had continued to use their images even after that contract expired on the basis that it had a sponsorship agreement with Fufa, soccer’s governing body in Uganda. The players then challenged MTN in court, through Proline, and have now won a significant damages award. But the judgment exposed some serious flaws in the way that Fufa has approached the question of using the image rights of its senior players, and the court commented that this is a ‘case study’ for why Fufa needs to sort out its contractual arrangements with senior players.

Executive interference in Ugandan court decisions continues – this time by the justice minister

21 March 2024
Carmel Rickard

Uganda’s minister of justice, Norbert Mao, has taken a leaf straight from the book of the country’s president, Yoweri Museveni. This week, the minister wrote to the principal judge of the Ugandan high court, asking that the judge directly intervene in a matter that has been brought to his attention by an MP on behalf of a constituent. Mao asked for the ‘immediate administrative intervention’ in the matter by the principal judge. Earlier this year, Museveni wrote a similar letter to the chief justice of Uganda, also requesting intervention in a matter, and the CJ later indicated that this was not the first time it had happened.

Is rape by family members treated too lightly by the law?

19 March 2024
Carmel Rickard

The high court has sent the case of a Malawian teenager, charged with raping his 89-year-old grandmother, back to the magistrate’s court for a possible re-trial because the court had wrongly prosecuted a case of rape instead of incest. If convicted in a re-trial, however, Malawi’s incest law could see the accused sentenced to a mere five years. Malawi’s penal code provides for a significant difference between the sentence to be imposed when a man rapes a close family member, and in a case where the two are not related. When they are unrelated, the code provides that a rape offender ‘shall be liable to be punished with death or with imprisonment for life’ (However, Malawi has had what amounts to a moratorium on carrying out the death penalty since 1992.) By contrast, ‘incest by males’, is categorised in the code as a ‘felony’, and anyone convicted ‘shall be liable for imprisonment for five years’. There is an exception: if it is proved ‘that the female person is under the age of 16, the offender shall be liable to imprisonment for life’.

Prominent SA advocates lose battle over conviction in Namibian courts for working without a permit, misleading immigration officials

6 March 2024
Carmel Rickard

Two prominent South African advocates have just lost their last hope of squashing their convictions in the Namibian courts. Johannesburg advocates, Mike Hellens SC and Dawie Joubert SC, had been found guilty on two counts, first, working as legal practitioners without an employment permit, and second, giving false or misleading information to immigration officers when they entered the country in 2019. Though they had gone to Namibia to appear in court in a bail application, they told the immigration officials they were there for a ‘visit’ and for a ‘meeting’. Both appealed against their conviction but they had also asked for a judicial review of the decision. In the high court they lost their appeal but won on the review. The outcome in both matters were taken to the apex supreme court for a final word. In December 2023, they lost their appeal at the supreme court. What would that same court say when the state appealed against the review finding? The supreme court has now given its answer: it found the review, that had favoured Hellens and Joubert, was wrongly decided, and set it aside, awarding costs against the two advocates in both the high court and the supreme court.