DR FRED M'MEMBE V NKONDE AND ORS (2018/CCZ/001) [2018] ZMCC 270 (11 December 2018)

J1 IN THE CONSTITUTIONAL COURT OF ZAMBIA HOLDEN AT LUSAKA 2018/CCZ/0:01 ( CONSTITUTIONAL JURISDICTION) BETWEEN: DR FRED M'MEMBE I REPU8LIC OF ZAMBIA CONSTITUTIONAL COUR1 OF V-MBI.«\ P. ETITIONER AND SUNDAY BWALYA THE ATTORNEY GE ER~0 BOX ~0067 LUSAl(A zNo RES,PONDENT RE•-~1s rRY :2 THE POST NEWSPAPERS LIMITED (IN LIQUIDATION) 3RD RESPONDENT CORAM: SITALI, MULEMBE AND MUSALUKiE, J. JC on 12th October 2018 and 11th December, 2018. FOR PETITIONER: MESSRS. N . . NCHITO, S. C., AND C. HAMWELA OF NCHITO AND NCHITO FOR 1 5 T RESPONDENT MESSRS. J. ZIMBA AND N .. BOTHA OF MAKEBI ZULU ADVOCATES FOR 2ND RESPONDENT A s.c., MESSRS. SOLICITOR AND FRANCIS IMASIKU - PRINCIPAL STATE ADVOCATE M IW. A NSA, GENERAL FOR 3RD RESPONDENT CAPTAIN I. M CHOOKA OF L:EWIS NATHAN AND ADVOCATES Musaluke, JC, delivered the Judgment of the Court. JUDGMENT J2 Cases referred to: 1. Nyampala Safaris (Z) limited and Four Others v Zambia Wildlife Authority and Six Others (2004) Z. R. 49. 2. Zambia Seed Company Limited v Chartered International (PVT) limited SCZ Judgment No. 20 of 1999. 3. London Ngoma and Others v LCM Company limited and another (1999) Z. R 75. 4. Letang v Cooper ( 1985) 1 Q. B. 222. 5. William David Carlisle Wise v E. F. Harvey (1985) Z. R. 179. 6. Godfrey Miyanda v Mathew Chai/a (1985) Z. R. 193. 7. Lusaka West Development Company limited, B. S. K. Chiti (Receiver), Zambia State Insurance Corporation v Turnkey Properties Limited SCZ Judgment No. 1 of 1990. 8. Ridge v Baldwin (1964) A. C. 40. Legislation referred to: 1. 2. The Constitution of Zambia (Amendment) Act No. 2 of 2016. The Constitutional Court Rules, Statutory Instrument No. 37 of 2016. 3. The High Court Act, Chapter 2 7 of the Laws of Zambia. 4. The State Proceedings Act, Chapter 71 of the Laws of Zambia. J3 5. The . Judicial (CO!d'e of Conduct) A,ct No. 13 of 1999. Work referred to: 1. The Rules of the Supreme, Court (1965), Volume 1, 1999 Edition (the White S:ook),. At the hearingi of th i1s matter, our sister Justice Sitali sat with us. However, she is currentl'y i1ndisposed and therefore this is a Judgmient of the m1ajority. Thi1s Judlgiment relates to an application by the 2 nd Respondent for an order to dismiss the Petition filed on 16th February, 2018. The background leading to the Petition before us is outlined below. On 10th February, 2017, the Petitioner herein lodged a complaint before the Jludrcial Complaints Commission (henceforth referred to as 'the Commission') in which he allegied m1isconduct i1n the manner the 1st Respondent as a presidli1ng Judge handled the matter between the Post Newspaper Lim1ited and Andrew Chimwenda and Others J4 under cause 2016/ HPC/05 1.8. The Commission instituted investigati1ons into the complai1nt and by a letter dated 24th May, 2017 wrote to the 1st Respondent, requesting him to respond to the alle9ations as contained in the complaint letter. The 1st Respondent i:n response decl iined to respond to the allegati,ons as contained in the com1plaint letter on grounds that the allegiati1ons were a subj ect of an application by the Petiit i1oner under cause 2016/HPC/05 18 for his recusal and that his response would pre-empt his ru ling on the said matter. The Com1m·i:ssi·on proceeded to consider the evidence before it and by a ruli ng dated 10t h November, 2017 found that a prima facie case of m isconduct hadl been established against the 1st Respondent. On 20 th Novem,ber, 2017 the p.t Respondent took out an acti1on before the Kitwe Higih Court aga inst the 2nd Respondent under cause 2017 /HK/77 1, in which he cha llenged the decision of the Commi1ssion in finding him· with a prima facie case of misconduct. The miatter was subsequently settled by the parties on 5 th Decem1ber, 2017 through a consent judgment JS which granted an order of cert,iorari against the decision of the Commiss 1ion. Following the entry of the consent judgment, the Petitioner brought an action before this Court against the 1st and 2 nd Respondents, challenging the jurisdiction of the Kitwe IH!i,glh Court which heard and determined the 1st Respondent and 2 nd Respondent's action. The Petitioner specifically alleges that the 1st and 2 nd Respondents viollated Articles 1(5) and 128 of the Constitution by: (a) Subjecting themselves to the High Court in a Constitutional matter; and (b) Settling the said matter by consent when there was a want of Jurisdiction on the part of the court. The Petitioner therefore sought the fol lowing reliefs from this Court: i. . A declaration that the Hi,gh Court did not have . JurisdicUon to hear .and dete1rmine a matter relating to the exercise of Constitutional power by the Judicial Com1plaints Commission J6 ii. A declaration that the proceedings and orders made ·in cause 2017 /HK/771 where a nullity on account of Jurisdiction and that all actions taken on account of the proceedingis in 2017 /HK/771 including the Consent Judgment dated 10th January 2018 in 2016/HPC/0518 are null and void; iii. AND THAT the costs of and occasioned by this Petition be paid by the Re.spondents to the Petition. On 27th March, 2018 the 2nd Respondent filed an application to dismiss the Petitioner's case pursuant to Order IX, Rule 20(1) of the Constitutional Court Rules as read together with Order 14(A) of the Rules of the Supreme Court of England 1965, 1999 Edition (henceforth referred to as the White Book). The application was supported by an affidavit and skeleton arguments. Mr. Fredrick Imasiku, Principal State Advocate, deposed to the affidavit in support of the application to dismiss the petition. He averred that on 23 rd January, 2018 the Petitioner filed into Court an amended Petition, in which he sought several reliefs against the Respondents against the consent judgement dated 10th January, 2018 which granted an order of J7 cerUorari agai1nst the decisi'on of the Judicial Complaints Commission and that the High Court for Zambia had the req uisite juriiSdi1ction to preside over cause No. 2017/HK/771. In tlhe skeleton argium1ents in support of the application to dismiiss the Petition, the 2 nd Respondent put up four grounds upon which iIt contented that the Petition was ill-conceived and im1properliy before this Court; these grounds are as follows: i. The 1 st Respo:ndent was chaUenging the decision making1 process. of the Judicial Complaints Commission under cause Nlo. 2017 /HK/771;: iii. The Hligh Court of Zambia has original and unlimited Jurisdi1ction to hear and determine an application for Judicial r·eview; m.. The Petitioner cannot purport to set aside a Consent Judgment in which he was not. a party; iv. The functional powers of the Judicial Complaints Commission ar·e fundamentaUy vested in the Judicial (Code of conduct) Act No. 13 of 1999 as amended by Act No. 13 of 2006. The 2 rnd Respondent argued these heads as follows: J8 Ground One The 2 nd Respondent specifically argued that as could be seen from the reading of the consent judgment, the action before the Kitwe High Court under cause No. 2017 /HK/771 sought not to challenge the mandate of the Commission but the decision making process. It was buttressed that the decision making process embarked on by the Commission was flawed on account of failure to accord the 1st Respondent an opportunity to respond to the allegations before arriving at its determination hence the application for the review of the decision of the Commission by way of judicial review. Reliance was placed on the case of Nyampala Safaris (Z) Limited and four Others v Zambia Wildlife Authority and Six Others 1 in which the purpose of judicial review was espoused as being to ensure that an individual is given a fair treatment by the authority to which he has been subjected. On the strength of this case, the 2nd Respondent argued that the High Court at Kitwe was properly clothed with J9 jur,isdiction to hear and determine the 1st respondent's action having ste'mmed fro1m a judicial review application. Ground Two On the second ground, the 2nd Respondent drew the Court's attent1io n to sect1ion 10 of the High Court Act which provides as foUows: 10(1) the juri:sdktion vested 1in the court shall as regards pr.act,i,oe and ,proc,edure be exeird.sed in the manner provided by this Act, the Criminal Procedure Code, The Matrimonial ,causes Act 200'7 0 1r any other written law, or by such rules, orders or direct,ions of the cornrt as may be made under this . A,ct, the ,crimina1I Procedure Gode, the Matrimonial Causes Act, 2007 or such ·w 1riitten law, and in default thereof in substantial ,conformity with thie Supreme Court Practice 1999 (the ·white IBook) of England and subject to subsection (2), th,e law and practke applicable in England in the High Court of Justice up to :31st December 1999. It was the 2nd Respondent's submission that section 10 aforesaid allows for the application of English Practice and procedure to this jur·isdiction and therefore Order 53 of the Whlite Book upon wh1ich the 1st Respondent commenced his action forms part of the jurisdict1ion vested in the High Court for JlO Za1mbia and as such the Hi,gh Court at Kitwe had competent jurisdiction to hear and determ1ine the 1st Respondent's case. 1G round Three It was the 2n d Respondent's argument that a non-party to any proceedin,gs cannot purport to set aside a consent judg1ment and that by law the only way to challenge a consent judgment ,is by co1mmencing a fresh action by one who was party to the consent judg1ment. In support of this argument the 2nd Respondent relied on the case of Zambia Seed Company Li,mited v Charted .lnterna'tiona1I (PVT) Limited 2 where it was he1ld as fo.llows: By law the only way to chaJlen,ge a judgment by consent would be to st.art an action spedfically to challenge that consient judg1ment. The 2nd Respondent 1made reference to the consent judgment exh1i:bited as " IFM 5" .in the Affidavit verifying facts which revealed that only the 1st and 2nd Respondent were parties to the action before the Kitwe High Court. Jll The 2nd Respondent added that as held in the Supreme Court case of London . Ng,oma and Others v LCM Company Limit,ed and anothe1r3 ., there is nothing at law that precludes an ii.nterested party from jo-ining a cause even post judgment. Further that :if the Petit1ioner sou,ght to set aside a consent judgment, the proper procedure should have been to firstly join the action under cause 2017/HK/771 and thereafter apply to set aside the consent judgment. It was argued that a consent judg1ment is between parties and does not bind non-parUes as per Order 42/ SA of the Wh ite Book. That having not :been a party to the action under cause 2017 /H K/771 and hav1inig not a ppHed to be joined to the said cause, the Petitioner cannot purport to set aside the consent judgment through an action in this Court. Ground 4 The 2 nd Respondent argued that the Commission was a creature of statute deriving iits mandate from Article 236 of the Constitution to enforce the Code of Conduct for judges and judicial officers as prescribed by the Judicial (Code of conduct) J12 Act. That consequently, as a creature of statute the. actions of the Commission were amenable to oversight by the judicial arm of government (courts of law) . At the hearing of the matter on 9th October, 2018 the learned Solicitor General Mr. Mwansa S. C, and Mr. Fredrick Imasiku, Principal State Advocate, relied on the filed Affidavit in support of the application to dismiss the petition and the skeleton arguments which they supplemented with brief oral arguments. Mr. Mwansa S. C., reiterated submissions in the skeleton arguments that the action commenced by the 1st Respondent before the Kitwe. High Court did not seek to challenge the jurisdiction of the Commission but the decision making process undertaken by the Commission and that the question that ought to be determined therefore is whether the High Court is vested with jurisdiction to deal with judicial review matters based on decisions of the Commission. Mr. Mwansa S. C., posited that as is the practice in this jurisdiction, all judicial review matters are heard and determined by the High Court and therefore the High Court at J13 Kitwe had the requ iiSite jurisdicti1on to entertain the 1st Respondent's a pp llication. With regiard to the i1ssue regardi1ng the setting aside of a consent jud9m.ent, Mr .. Mwansa S .. C., vehemently argued that it is settled law t hat a non-party cannot purport to set aside a consent judgiment. He li kened a conse nt judgment to a contract between consentingi parties that binds only parties to it and on the authori,ty of t he case of Zam1bia1 Seed Company v Chartered International (Pvt): Limit:ed 2 he argued that a party desi·ring to set aside a consent judgment could only do so upon joiningi the cause even post judgiment and thereafter launchingi an a pp liicati'on in tflie same cause to set aside the consent judgment.. Mr. Mwansa, S. C., argued t hat none of the parties to cause No. 2017/HK/771 had challenged the consent judgment and t hat no const rt uti1onal i.ssue had ari'Sen before the High CoUi rt t o have w arranted the referral! of the matter to this Court as required under Article 128(2) of the Constitution . He subm itted that this Court !lacked the jurisdiction to entertain J14 the Petitioner's action and urged us to dismiss the Petition with costs. In support of the 2 nd Respondent's application the 1st Respondent filed his heads of arguments on 28th August, 2018. The thrust of the 1st Respondent's arguments was that the Petition had failed to disclose a clear cause of action as against the Respondents. The 1 st Respondent submitted that the definition of a 'cause of action' was given in the English case of Letang v Cooper4 and cited with approval by the Supreme Court in the case of William David Carlisle Wise v E. F. Harvey5 where it was held that a cause of action is disclosed only when a factua I situation is alleged which contains facts upon which a party attaches liability to the other upon which he can establish a right cause or entitlement to a judgment in his favour against the other. The 1st Respondent argued that section 12 of the State Proceedings Act Chapter 71 of the Laws of Zambia was instructive as to the appropriate party to sue in actions against JllS the giovernm1ent or a wing of the 9overnment. It was submitted that a judge in the performance of hi1s judicial functions enjoys immunity from actions such as the one before Court and therefore the correct party to have been sued in this particular matter before thi1s Court should have been the Attorney General and not him1. The case of Mi1yanda v Chaila (Judge of the Hi'gh Coiurt) 6 was cited in support of this argument in which the court heldl as folllows:. A judge cannot be sued for any act or omission done whilst p,erformi1ng his judicial1 functions., The 1 st Respondent urged us to dismiss the petitioner's action with costs on the basis that it failed to disclose a cause of action against him. The 3 rd Respondent di'd: not fi le any documents. At the heari1ng, Captain Chooka, co unsell for the 3 rd Respondent, intormed us that he would rely on and adopt the positions arg:ued in the heads of arguments filred by the 1st and 2 nd Res pondents . J16 On 22 nd August, 2018 the Petit,ioner filed his heads in response to the 2 nd Respondent's appl.ication. The core of the Petitioner's argu,ments was that the High Court at K 1itwe ,lacked the requisite jurisdiction to hear and determ1ine the 1st Respondent's case on the basis that a decis1ion of th,e Co 1mm;iss1ion 1is of a constitutional nature which is on'ly amenable to oversight by the Constitutional Court. The Petitioner ar,gued that the process of removal of a judge as provided for under Articlle 144 of the Constitution is a const1itutional issue wh rich fell exclusively within the jurisdiction of this Court. The Petitioner 1in support of this argument relied on the provis'ions of Articles 1(5) and 128 of the Constitution wh'ich clothes th1is Court with jurisdiction to hear and determine any matter reLat1ing to the Constitution. On the strength of these provisions, the Petitioner argued that whilst he was agreeablle that the actions of the Co,m :mission were not immune to oversight by the judicial arm of government as a body set up by the Const,itution, any act1ion seeking to challenge the process of the Commission could only be determined by the Constitutiona 'I Court. J17 The Petitioner added that . Artide 216 of the Constitution is 1instruct:ive that all Commiss1ions set up under the Constitution are subject only to the Constitution and the law. In ch,ail,lenging the 1st Respondent's action filed at the Kitwe High Court, it was the Petitioner's argument that the action predom:inant1ly rel1ed on constitutional provisions which required 'interpretation and that the High Court did not have such jur;isdiction. He urged us to find that the proceedings under cause No. 2017 /HIK/771 were a nullity as the originating process itse,lf was incompetently before the High Court. In response to the argument by the 2nd Respondent that the Comm1ission did not afford the 1st Respondent an opportunity to respond to the alllegations, our attention was drawn to page 3 of the ruling of the Commission. It was the Pet1itioner's argument that in investigating the matter against the 1st Respondent the Comm1iss1ion followed the procedure as set out in Art1icles 143 and 144 of the Constitution. In re!lat1ion to grounds one, two and four advanced by the 2nd Respondent in its appllicat1ion to dismiss the Petition, the J18 Petitioner submitted that the Constitutional Court and not the High Court was the correct forum to have determined the 1st Respondent's action as the matter touched on the functions of the Commission, a body established by the Constitution. In response to ground three, the Petitioner whilst agreeing with the 2nd Respondent's position that a party seeking to set aside a consent judgment could only do so by commencing a fresh action, did however argue that the Petition before this Court was not aimed at setting aside the consent judgment per se but sought to dismiss the matter under cause 2017 /HK/771 in totality for want of jurisdiction. At the hearing of the matter, Mr. Nchima Nchito SC, arguing on behalf of the Petitioner, relied on the Heads in Response filed on 22 nd August, 2018 which were briefly augmented with oral submissions as follows: In addressing the fourth ground, Mr. Nchito S. C., argued that the Commission was not a creature of ordinary statute but J19 of the Constitution whose procedures are governed by the Constitution and as such a party seekiing to cha lllenge the Commission's procedures as set out in Articlle 144 of the Constitution could not do so by way of judicial review as the interpretation of the Constitution was a preserve of th1is Court. In response to the rest of the grounds advanced by the 2nd Respondent, Mr. Nchito S. C., reiterated his arguments in the written submissions that it was not the Pet1itione1r's intention to set aside the consent judgment entered by the Kitwe High Court although he did admit that the resultant effect of the Petitioner's action would be to set as:ide the consent judgment. He argued that the proceed.ings in the Kitwe High Court were a nullity on the basis that the High Court did not have the jurisdiction to enter the consent judgment. It was argued that although stricto sensu a consent judgment is binding as between parties and does not bind non parties, in casu the consent judgment signed by the 1st and 2nd Respondent had the effect of affecting the Petitioner's ri,ghts .as J20 he was a complainant in the matter before the Commission and on that basis the petitioner had locus standi to challenge the decision of the Kitwe High Court in this Court. Mr. Hamwela also arguing on behalf of the Petitioner submitted that a perusal of the documents filed before the Kitwe High Court clearly showed that the court lacked jurisdiction as the 1st Respondent in moving his motion relied on constitutional provisions. Counsel referred to the caption of the provisions relied upon in the originating notice of motion at page 36 of the Consolidated Record of Proceedings which read as follows: In the Matter of: Article 122 (1) (2) of the Constitution of Zambia Act No.2 of 2016 It was counsel's submission that it is trite that the Constitutional Court is the only court clothed with jurisdiction to deal with constitutional matters. In response to the 2 nd Respondent's argument that a consent judgment could only be challenged by a party to an action, Mr Hamwela submitted that he had occasion to read the J21 Lusaka West Company lim1ited7 case and that contrary to the Solicitor Generall's submissions, that case made no such filndling and that even ilf it did', the sa:iid case would not be useful for purposes of taking away this Court1s jurisdiction to hear the Petitioner's action as that case di1d not deal with a constitutional matter. Submitting, in reply, Mir. Imasiku for the 2 nd Respondent stated that whilst the Comm1ission is a creature of the Constituti1on, the issues t hat necessiltated the action under ca use number 2017 /HK/ 771 were not that of interpretation as provided for under Artide 128 of tile Constitution but stemmed from the decision maki1ng process of the Commission. Mr. Imasiku added that as cou ld be seen from the record, the substantive reliiefs that the 1st Respondent was seeking before the High Court were not t hat of i1nterpretation but sought to chal1lenge t he procedure adopted and the decision of the Comm,ission. Mr. Mwansa S. C., submltting1 i'n reply argued that although the Consti1tution under Article 144 set out the primary J22 procedure for the removal of a judge, the Commission was guided by its own procedures and these procedures are amenable to challenge by way of judicial review. It was the 2 nd Respondent's argument on the authority of the Nyampala case 1 that a decision of an inferior court or public authority such as the Commission may be quashed inter alia were such an inferior court or authority fails to comply with the rules of natural justice. Mr. Mwansa S. C., reiterated that the proceedings under cause 2017/HK/771 were not a nu llity and that even if the said proceedings were a nullity, they ought to have been challenged in the High Court and not in the manner the Petitioner seeks to do before this Court. In reply to Mr. Hamwela's submission on the Lusaka West Company Limited 7 case, Mr. Mwansa S. C., in relying on the holding of the court in the said case reiterated his earlier submission that only a party to a contract can challenge a consent judgment and not a non-party. J23 We have carefully considered the application by the 2nd Respondent and the arguments advanced by the parties both for and against the application and having done so it has become clear in our minds that the fundamental issues requiring determination are as follows: 1. Whether the decisions of the Judicial Complaints Commission as a body established under the Constitution are amenable to judicial review by the High Court; 2. Whether the action commenced by the 1 st Respondent before the Kitwe High Court under cause 2017 /HK/771 sought to determine a constitutional issue; and 3. Whethe·r the Petitioner can successfully set aside a consent judgment to which he was not a party. We will deal with these issues for determination seriatim . 1. Whether actions of the Judicial Complaints Commission are amenable to judicial review by the High Court. J24 In addressing this issue, we note that the matter before us stems from the decision of the Commission which found that a prima facie case of misconduct had been established against the 1st Respondent. The 1st Respondent dissatisfied with the ruling of the Commission took out an action before the Kitwe High Court which action resulted in the quashing of the decision of the Commission. The Petitioner by the petition filed before this Court on 16th February, 2016 now seeks to challenge the jurisdiction of the High Court at Kitwe in quashing the decision of the Commission. The Petitioner as a basis for challenging the jurisdiction of the High Court at Kitwe argues that the process of removing a judge is of a constitutional nature as enshrined in Article 144 of the Constitution and therefore any action seeking to challenge this process could only be determined by the Constitutional Court. Counsel for the Petitioner argues that the Commission was not a creature of ordinary statute but the Constitution and therefore an action to challenge the decision making process of the Commission could not be determined by way of judicial review. J25 The 2 nd Respondent on the other hand is of the view that the Commission is a creature of statute whose functional powers and procedures are fundamentally vested in it by the Judi1cial (Code of Conduct) Act and therefore as a creature of statute, the oblig1ations of t he Commission by way of discharging its m,andate are not imm1une to oversight by the judici1al arm1 of 9overnm1ent. The 2nd Respondent in addition argued that t he 1st Respondent's action did not border on constitutiona l! i,nterpretation but sought to challenge the decision making process of the Commission (i.e. for having not accorded the 1st Respondent an opportunity to make his case bef ore determ ining; t he ma nner) and therefore the High Court had competent jurisdiction to hear and determine the matter. I n determ,ining whether the actions of the Commission are indeed amenable to judici al revi-ew, we are mindful that the law 9overning judicial review in Zambia i1s as provided for under Order 53 of the White Book. J26 In the past, judicial review applications and prerogative orders of certiorari, prohibition and mandamus only lay against persons or bodies with judicial or quasi-judicial functions, and did not apply to an authority exercising adm1inistrative powers. The distinction between judicial and administrative activities was swept away by the decision of the House of Lords in Ridge v Baldwin 8 • The position of the law now is that judicial review lies against an action of an inferior court or tribunal, and against any persons or bodies which perform public duties or functions. This position of the law has been affirmed by the Supreme Court in the case of Nyampala Safaris (Z) Limited and others v Zambia Wildlife Authority1 in which it was held as follows: A decision of an inferior court or a public authority may be quashed (by an order of certiorari) where that court or authority acted:- (i) without jurisdiction; or (ii) exceeded its jurisdiction; or (iii) failed to comply with the rules of natural justice where those rules are applicable; or J27 (iv) where the:re is an error of faw on the face of the record; or (v) the decision is unreasonable: in the Wednesbury sense ( l), namely, that it was a dedsion which no person or body of p:ersons properlly directing itself on the relevant law and acting reasonablly·, could, reasonably have rea1ched ., We agree that the Commi1ssion is a creature of the Constitution having, been established under Article 236 of the Constitution. Arti1cle 236 of the Constitution specifically enacts that: 236(1) The·re is estabUshed the Judicial Complaints Com1m ission. (2) T'he. Jiudidal Com1p laints Commission shall- (a) enforce the Code o,f Conduct for judges and judicial officers; {b) ensure that judg1e.s and judicial officers are accountable to the, people for· the performance of theiir functions; ( c) receive complai1nts llodged against a judge or judi1cial officer, as prescribed; (di) hear a compllaint against a judge or judicial officer, as prescri:bed; ( e) make recomm1endaUons to the appropriate institution or authority for action; and J28 (f) perform such other functions as prescribed. The functions of the Commission are further explained under section 24 of the Judicial (Code of Conduct) as follows; The functions of the Authority shall be to- (a) receive any complaint or allegation of misconduct and to investigate any complaint or allegation made against a judicial officer: Provided that where, in the opinion of the Authority a complaint or allegation of misconduct maide against the judicial officer does not disclose any p,rima facie case, the Authority may dismiss such a complaint or allegation without investigating the complaint or allegation. (b) submit its findings and recommendations to - (i) the appropriate authority for disciplinary action or other administrative action; and (ii) the Director of Public Prosecution for consideration of possible criminal prosecution. Section 25 of the Judicial (Code of Conduct) Act in fact allows any member of the public who has a complaint against a ' J29 judicial officer or who alleges that a judicial officer has contravened the Judicial (Code of Conduct) Act to lodge a complaint with the Commission. The Commission therefore qualifies to be a public authority as contemplated in the case of Nyampala Safaris (Z) Limited 1 whose actions are amenable to judicial review by the courts of law. Having established that the Commission is indeed a public authority whose actions are amenable to judicial review, the follow-up question requiring determination is whether the actions of the Commission as a creature of the Constitution are reviewable only by the Constitutional Court and not the High Court. The Petitioner has argued that by virtue of being a creature of the Constitution, the review of the actions of the Commission could only lie with this Court and not the High Court. The 2 nd Respondent on the other hand argues that as the 1st Respondent's action did not border on constitutional interpretation, the High Court was properly clothed with the J30 jurisdiction to hear and determine the matter he had taken there. In addressing our minds to this issue, our point of reference is obviously Article 128( 1) of the Constitution on the jurisdiction of this Court which clothes it with original and final jurisdiction to hear: (a) a matter relating to the interpretation of this Constitution; ( b) a matter relating to a violation or contravention of this Constitution; ( c) a matter relating to the President, Vice-President or an election of a P·resident; (d) appeals relating to election of Members of Parliament and councillors; and (e) whether or not a matter falls within the jurisdiction of the Constitutional Court. Further, Article 128 (3) of the Constitution provides that: Subject to Article 28, a person who alleges that ( a) an Act of Parliament or statutory instrument; J31 (b) an action, measure or decision taken under law; or (c) an act, omission, measure or decision by a person or an authority; contravenes this Constitution, may petition the Constitutional Court for redress. The interpretation of the above provisions particularly Article 128 (3) is that this Court indeed does have jurisdiction to hear a matter challenging an action, omission, measure or decision by a person or an authority that contravenes the Constitution. We, however, note from the wo rding of the said provision that it is clear that the jurisdiction of this Court is limited to the extent that by Article 28 of the Constitution, this Court is excluded from adjudicating on matters falling under Part III of th e Co nstitution t hat deals with the Bill of Righ ts . Article 28 of the Constitution reads : Subject to clause (5), if any person alleges that any of the provisions of Articles 11 to 26 inclusive has been, is being or· is likely to be contravened in relation to him, then, without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply for redress to the High Court which shall - ' l J32 (a) hear and determine any such application (b) Determine any question arising in the case of any person which is referred to it in pursuance of clause(2); and which may, make such order, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing, or securing the enforcement of, any of the provisions of Articles 11 to 26 inclusive. In view of the foregoing, where a matter seeks to challenge an action or a decision of an authority such as the Commission on the basis that it contravenes provisions of the Constitution other than those in Part III of the Constitution, the correct forum would be this Court. On the other hand, were a matter seeks to challenge an action or decision of an authority on the basis that it violates any of the fundamental rights and freedoms as guaranteed under Part III of the Constitution, the appropriate remedy would be to apply for redress before the High Court as per Article 28 of the Constitution. Having perused the originating process before the High Court, it is clear that the 1st Respondent by his action sought to challenge the decision making process of the Commission on the basis that the Commission arrived at its decision without J33 according him an opportunity to be heard. On the strength of what we have already stated, the action bordered on the 1st Respondent's quest to enforce his right to be heard, which right is protected under the Bill of Rights which is a preserve of the High Court. We hold therefore that the 1st Respondent rightfully commenced his action before the Kitwe High Court as the decision making process of the Commission as a body established under the Constitution are amenable to review by the High Court. 2. Whether the action commenced by the 1 st Respondent before the Kitwe High Court under cause 2017 /HK/771 sought to determine a Constitutional issue. To some extent we have already dealt with this question when discussing the first issue. It was the Petitioner's position that the proceedings before the Kitwe High Court were a nullity on grounds that the 1st Respondent in moving his action predominantly relied on constitutional provisions which the High Court had no jurisdiction to interpret. The 2nd Respondent ' ' . on the other hand emphasised that the action by the 1st Respondent before the Kitwe High Court was not one of constitutional interpretation but sought to challenge the decision making process of the Com,m,ission by way of judicial review and as such t lhe matter was competently before the Kitwe H~igh Court. We have analysed in depth the origi nating process filed by the 1st Respondent before the Kitwe High Court (at page 336 of the Consolidated Record of Proceedings) and we agree with the Petitioner that iindeed the 1st Respondent in commencing his actions 1ment1ioned var:ious constitutional provisions, particularly, Artides 122( 1) and (2) and 11 of the Constitution. However, upon exa1m :ining the rel'iefs sought by the 1st Respondent in the said 1matter, we are :inclined to agree with the 2nd Respondent's argument that the 1st Respondent's action pri1manily sought to chaUenge the decision making process of the Comrmiss'ion by way of judicial review. At page 37 of the Consolidated Record of Proceedings the 1st Respondent particullarly sou,ght an order of Certiorari to quash the decision J35 of the Commission on the basis that he was not heard in accordance with article 144(3) and (4)(a) of the Constitution. While we agree that the 1st Respondent's action in moving the High Court mentioned some constitutional provisions, our view is that the reliefs sought could not allow the High Court to venture into any constitutional interpretation. The basis of that suit was to set aside the decision of the Commission on the basis that the rules of natural Justice were not complied with. As such we find that the High Court at Kitwe was competently clothed with jurisdiction to hear and determine the 1st Respondent's action. 3. Whether the Petitioner can successfully set aside a consent judgment to which he was not a party. It is settled law that a consent judgment does not bind non-parties to it. Any party that wishes to challenge a consent judgment has to follow prescribed rules of procedure. The Supreme Court case of Zambia Seed Company Limited v ~ r I • J36 Chartered International (Pvt) Limited 2 provides guidance on ways in which a consent judgment can be challenged where it was held as follows: By law, the only way to challenge a judgment by consent would be to start a fresh action spedfically to challenge the Consent Order. Further, in the case of Lusaka West Development Company Limited; B. S. K. Chiti (Receiver); Zambia State Insurance Corporation Ltd v Turnkey Properties Limited 7 the Supreme Court held that that a consent judgment could only be set aside by a party to the action. In casu, although the Petitioner has argued that his Petition before us does not seek to set aside the consent judgment, the effect of the Petitioner's action in an event that it is successful will result in the setting aside of the consent judgment under cause No. 2017 /HK/771. Since that is the end that the Petitioner wishes to achieve, we guide that the rules for setting aside a consent judgment ought to strictly apply. By saying so we agree with the 2 nd Respondent's position that the Petitioner having not been a party to the matter before , # • • J37 the Kitwe High Court, cannot now purport to challenge a consent judgment in this Court. As rightfully argued by the 2 nd Respondent, the proper procedure would have been for the Petitioner to have applied for leave to join the proceedings before the Kitwe High Court and thereafter by a fresh action challenge the consent judgment. We therefore agree and adopt the holding of the Supreme Court in the cases of Zambia Seed Company Limited and Lusaka West Development Company, Limited 2 • Perusal of the court record under cause No. 2017/HK/771 point to the fact that the Petitioner made no attempts to join the proceedings before the Kitwe High Court even post consent judgment but instead rushed to seek redress before this Court. The route taken by the Petitioner by way of lodging a petition before this Court was incongruous and unapt. The Petitioner cannot set aside a consent judgment to which he was not a party without following th e recognised rules of procedure. In vi ew of the foregoing and on the totality of the evidence before us, we find that th e 2nd Respondent's J38 app.licat ion to djsmiss t he Petitio n has ,merit and succeeds. The Petition is improperly before this Court and we dismissed it with costs to the Respondents. ····················~···············. E. Mu,lembe Judge Constitutional Court ·1~ 1 ~ ' ' ··············M .... M ··.·_·,~;1ii~~-·-··········· J ud gel Constitution~! Court \