Reject notice for preliminary issue

….judge cannot plead immunity in human rights protection case

By NATION REPORTER LUSAKA lawyer John Sangwa has told the Lusaka High Court that Judge Sunday Nkonde cannot plead immunity in a petition for the protection of fundamental human rights.

This is in a matter in which Mr Sangwa sued Judge Nkonde for allegedly breaching the constitution.

He accused Judge Nkonde of violating the constitution when he summoned the lawyer to answer contempt of court charges.

And earlier, Judge Nkonde in his notice to raise a preliminary issue said he could not be sued in his personal capacity as he was an agent of the State and that the Attorney General was the one who should have been sued.

He also sought an interpretation as to whether a High Court judge can review an injunction or set aside the decision of another High Court judge. But Mr Sangwa argued that Article 28 of the constitution did not limit the parties against whom one may seek redress from the High Court where one alleged that the provisions of article 11 to 26 has been or is likely to be contravened.

He argued that Judge Nkonde could not plead immunity in a petition of fundamental human rights and freedoms as Article 1 (3) of the constitution bonded every person in Zambia including a High Court judge and the republican president.

Mr Sangwa argued that the preliminary issues raised were not supported by the rules that regulated petitions brought using Article 28 of the constitution and therefore ought to fail.

"There is no provision that allows a party to raise preliminary issue in a matter commenced under the protection of fundamental rights rule of 1969.

"Since the petition is filed under the protection of fundamental rights rules, this court is for all intents and purposes as it determines the petition," Mr Sangwa argued.

He said the notice to raise the preliminary issue was misconceived as the court had no jurisdiction to entertain the objection in the petition.