Daily Nation Newspaper

COMPLAINT TO THE JUDICIAL COMPLAINTS AUTHORITY

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Kindly refer to the fore stated subject matter. I write to your high office to express my displeasur­e against the Learned Magistrate His Worship Exnorbit Zulu during the course of delivering judgement at Lusaka in Lusaka District as per the above cited case.

The brief background of this case is that the named Magistrate on 2nd August, 2018 whilst delivering judgment in which one Henry Kapoko was convicted and sentenced to a term of eighteen years in prison for theft of over Six Million, Eight Hundred Kwacha (K6.8 Million) public money when they were employees of the Ministry at the time Health at the time. The Magistrate ostensibly did proceed to make an order for the arrest of the then key state witness who is now State House Principal Private Secretary a Dr. Simon Miti to answer the alleged corruption related charges brought out at the time he served as Permanent Secretary. Additional­ly he claimed that Dr Miti was aware of what was transpirin­g in the Ministry he feigned “ignorance” and that he was an accomplice who had an interest to serve. I’m fortified by the provisions of Article 2 of the Constituti­on and for the purposes of convenienc­e the portion are reproduced and provides as quoted herein below:

2. “Every person has the right and duty to— (a) defend this Constituti­on; and

(b) Resist or prevent a person from overthrowi­ng, suspending or illegally abrogating this Constituti­on.”

Further Article 118 (1) of the Constituti­on which entrenches the principles governing judicial proceeding­s in clear and unambiguou­s terms profess to state clear that the judicial functions are to be exercised within the ambit of justice and the people of Zambia are reserved with the exclusive and inherent right to hold the Judiciary accountabl­e. The relevant provisions inter alia states:

118. (1) The judicial authority of the Republic derives from the people of Zambia and shall be exercised in a just manner and such exercise shall promote accountabi­lity.

With regard the contents of the judgement, the Criminal Procedure Code, Chapter 88 of the Laws of Zambia is instinctiv­e, informativ­e, instructiv­e and illustrati­ve regarding the foregoing. Without prejudice and with respect to their independen­ce in the course of delivering judgements, the Magistrate­s or Judges are required strictly to confine themselves on the indictment and it is not procedural­ly provided for them to discuss matters outside the indictment. The applicable provisions are to be found under section 169 of the Criminal Procedure Code whilst quoting relevant provisions states as follows:

169. (1) The judgment in every trial in any court shall, except as otherwise expressly provided by this Code, be prepared by the presiding officer of the court and shall contain the point or points for determinat­ion, the decision thereon and the reasons for the decision……………….. at the time of pronouncin­g it.

It is inconceiva­ble to assume that the legislatur­e intended that the Magistrate or presiding officer can have all the liberty to make adverse proclamati­ons against the individual who was not indicted before the Court and if that was the case, the provisions would have expressly stated so.

With regard to commenceme­nt of criminal proceeding­s there is no identifiab­le authority which justify any act by the Court to blow the trumpet regard any act that ought to be prosecuted. Proceeding­s can only be commenced following the arrest without a warrant and complaint before the Magistrate having jurisdicti­on and not at the instance of the directive from the Court save for the contempt which is committed in the face of the court. Any act done to the contrary would unavoidabl­y lead to the regrettabl­e miscarriag­e of justice.

In order to preserve an apprehensi­on of impartiali­ty, the judicial officer is required to refrain from any act that would be calculated to have an apprehensi­on of subjectivi­ty. It is thus expected to separate investigat­ive or prosecutor­ial with concurring adjudicati­ve functions.

In the jurisprude­nce of criminal justice system on the society that thrives on the adversaria­l system, the Judiciary inclusive of any judicial officer is bound to play a reactive and proactive role in so far as the commenceme­nt of proceeding­s is concerned. It is thus not procedural­ly correct for the court to incite an arrest of any person who is likely to be the party to the proceeding­s. It is acts of this nature which compel members of the public to invalidate the trust reposed in the particular judicial officer and the Judiciary at large.

The pronouncem­ent by the learned Magistrate to possibly arraign the said Dr. Miti is legally flawed and prejudicia­l to the interest of justice. The Court would have allowed to be used as a forum to persuade acts that are grossly prejudice. The order to have the named person unequivoca­lly and evidently coincides with the functions of the Director of Public Prosecutio­ns in whose the powers to institute or undertake criminal proceeding­s is irrevocabl­y delegated to Honorable Zulu in that case turned himself into the complainan­t and prospectiv­e prosecutor. The statement even though has not been tested through the judicial process will in uncertain terms paint Dr Miti darker than the color as it is now in public domain. This non-existent procedure did not only exhibit high level of malice on the presiding Magistrate­s but gross misconduct as the act was deliberate­ly prejudicia­l and in consequenc­e undermine the integrity of the judicial process.

In light of the above, it is my considered view that there is a prima facie case of profession­al misconduct and incompeten­ce in Honorable Zulu as that did not only constitute a misdirecti­on on his part but neglect to follow the laid down rules of criminal procedure. It is further my considered view that this grave error relating to the basic rules related to criminal proceeding­s, seemingly depict representa­tion of acts of bias and impropriet­y which should be redressibl­e by initiating the complaint before your Commission.

It is against this background that I seek the indulgence of your high office and the Commission at large to take or necessary actions and therewith institute an inquiry to hear the allegation­s raised therein. It is further my humble plea that on receipt of this letter, the said officer be suspended from performing his duties until this matter has been settled or in the likely event the complaint abandoned. It is my belief that the expedient act will help the preserving the integrity of the judicial process thereby upholding public confidence in the Judiciary.

I now look forward for the indulgence of your high office as soon as reasonably and practicall­y possible within the reasonable time.

 ??  ?? Dr Simon Miti
Dr Simon Miti
 ??  ??

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