M’MEMBE PLOT FAILS

ATTEMPTS by Fred M’membe and his friends to have High Court Judge, Sunday Nkonde, suspended by President Edgar Lungu, have been halted through a court order granting judicial review of the matter. Following a complaint from M’membe and subsequent preliminary investigations, the Judicial Complaints Commission (JCC) had written to President Edgar Lungu to advise that Judge Nkonde had a case to answer which meant that the President was obliged to suspend him from work.

Judge Nkonde was constrained to respond to the JCC over the complaint as the same subject and matter covered by the complainant was still active in court.

However, Judge Nkonde on Monday, sued the State and obtained a stay against the JCC ruling by way of judicial review in the High Court.

This means that the JCC submission and recommendation to the President has equally been suspended and President Lungu cannot therefore act till the judicial review proceedings are concluded.

Subsequently, President Lungu advised the JCC, which had recommended that he suspends Judge Nkonde, that he cannot act on a matter that was active in court.

President Lungu’s letter to the chairperson of the JCC reads in part, “I note that the Judicial Complaints Commission has found Mr Justice Sunday Nkonde, SC with a prima facie case.

I further note that Article 144(3) of the Constitution mandates the President to suspend the Judge found with a prima facie case.

However, I have since been served with an order staying the decision of the Judicial Complaints Commission pending determination of the matter by the High Court.

In the circumstances, I am unable to suspend Judge Sunday Nkonde until the order of stay is set aside or as the court may otherwise direct.”

Judge Nkonde is seeking judicial review of the decision by the JCC’s recommendation for the President to suspend him, over a complaint lodged by M’membe.

The JCC had asked President Lungu to suspend Judge Nkonde to pave way for investigations into how he handled a case that he presided over, the Post Newspaper liquidation. Judge Nkonde was also presiding over the Development Bank of Zambia case.

President Lungu is obliged under the law to suspend the judge following a recommendation from the JCC barring any court action stopping the same matter, as it has been done.

On February 21, an application was made to the judge asking him to recuse himself in the winding up of the case he was handling.

At the same time, M’membe had lodged a complaint with the JCC and when the commission subsequently notified the judge of the complaint and requested the judge to respond, the judge in writing to the JCC refused to respond to the complainant on grounds that the same subject and matters covered by the complaint were subject of the complainant’s application submitted before the judge for a ruling, so the judge could not respond and prejudice his ruling on the application.