M’MEMBE JUDGE PLOY QUASHED
By NATION REPORTER FRED M’membe’s attempts to have High Court Judge, Sunday Nkonde, suspended by President Lungu, have flopped following the quashing of the Judicial Complaints Commission’s ruling and decisions.
Yesterday, the state and Judge Nkonde’s lawyers entered a consent order in the matter in which the Judge had sought judicial review over the Judicial Complaints Commission’s decision and recommendations to the President that he had been found with a prima facie case following Fred M’membe’s complaint against him.
The consent order entered yesterday by the Attorney General and Judge’s lawyers, Makebi Zulu Advocates, effectively quashes the matter in court as well as recommendations of the JCC.
“The decision and ruling of the Commission dated November 10, 2017 is heredy removed into the High Court and accordingly quashed,” reads part of the court order.
The JCC had earlier written to President Lungu recommending that Judge Nkonde had been found with a prima facie case following their investigation of a complaint brought by former Post Newspaper editor, Fred M’membe.
It was expected that following their recommendation, the President was duty bound by the constitution to suspend Judge Nkonde.
However, Judge Nkonde had obtained a stay by seeking judicial review of the JCC’s decision on grounds that their decision was misguided because they had requested him to comment on a matter that was active in court and on which he was expected to rule.
Following a complaint from Mmembe 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.
However, Judge Nkonde had sued the State and obtained stay against the JCC ruling by way of judicial review in the High Court, an action that also stopped President Lungu from acting on the JCC recommendations.
Subsequently, President Lungu had advised the Judicial Complaints Commission (JCC) which had recommended that he suspends Judge Nkonde, that he could not act on a matter that was active in court.
President Lungu’s letter to the Chairperson of the JCC read in part, “I note that the Judicial Complaints Commission has found Mr Justice Sunday Nkonde, DC with a prima facie case. I further note that Article 144(3) of the Constitution mandates the President to suspend the Judge found with 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.”
The JCC had asked President Lungu to suspend Judge Nkonde in order to pave way for investigations into how he handled a case that he presided over, the Post Newspaper liquidation.
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 rescue himself in the winding up case he was handling.
At the same time, Mmembe 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.