Barred magistrate petitions Concourt

SUSPENDED Livingstone Magistrate Benjamin Mwelwa has petitioned the Constitutional Court over his suspension from duty in August 2016.

This is a case in which Mr Mwelwa was suspended by then acting Chief Registrar Charles Kafunda in a letter dated August 9, 2016. Mr Mwelwa, 46, of Highland in Livingstone, testified yesterday before the Constitutional Court sitting in Ndola and comprising Judges Annie Sitali, Mungeni Mulenga, Enoch Mulembe, Margaret Munalula, and Martin Musaluke.

He maintained that it was not true that he had mishandled the State’s nolle prosequi in respect of three suspects in a criminal matter, by referring it to the Constitutional Court.

Mr Mwelwa contended that the Judiciary went against the Republican Constitution by suspending him because he was merely performing his duties and that his suspension amounted to interference.

He had referred the nolle prosequi to the Constitutional Court for interpretation and did not discharge the accused persons, as required by law, but maintained that this did not warrant his suspension. Mr Mwelwa said he had filed a petition before the court together with an affidavit with facts to vindicate him.

In another matter, Mr Mwelwa said he was charged with misconduct because the Judiciary had received a complaint from the Anti-Corruption Commission (ACC) that he was fraternising with Major Masonga of KBF and Associates.

KBF and Associates was representing one of the accused persons in a case involving former Livingstone mayor Milford Maambo, former acting Town Clerk Chanda Chabala and MosiOa-Tunya Ward councillor Ziwa Malilo whose case he was handling.

But Mr Mwelwa said at no time was he found at the law firm as alleged.

The second witness, Mr Kafunda of Olympia in Lusaka, admitted writing the suspension letter to Mr Mwelwa.

Mr Kafunda stated that Mr Mwelwa was charged on three counts with the first being misconduct because he was found at a law firm that was representing accused persons appearing in his court.

“The petitioner (Mr Mwelwa) stands charged with three counts: one misconduct for being found at a law firm that was representing the accused before his court. Two others relate to the same material that was scandalising the Chief Justice.

“The other two counts arose after the first charge was slapped on him. In August 2016 we received information from the ACC to the effect that they were worried with the conduct of the magistrate. The information was that two prosecutors had gone to discuss the matter with defence counsel and found the petitioner. He was under duty to discharge the accused persons after the nolle,” Mr. Kafunda said.

Meanwhile, Justice Sitali said Mr Mwelwa should submit written submissions by August 10, 2018 and directed the respondents to make their written submissions by August 31, this year.

Ms Justice Sitali stated that the court would on September 10, 2018 look at the two sets of submissions. The date of judgement will be set later.