The People v Judicial Complaints Commission, Vincent Blacksin Malambo, Chad H. Muleza, Dean A. Mwansa Mumba and The Attorney General Ex Parte (Timothy Katanekwa) (2024/HP/0262) [2024] ZMHC 143 (11 March 2024)

2024/HP/0262 IN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Ci vil Jurisdiction) IN THE MATTER OF: ORDER 53 RULE 3 OF THE RULES OF THE SUPREME COURT OF ENGLAND 1965, WHITE BOOK (1999 EDITION), VOLUMES 1 AND 2. AND IN THE MATTER OF: AND IN THE MATTER OF: ARTICLE 236 OF THE CONSTITUTION OF ZAMBIA, CHAPTER 1 OF THE LAWS OF THE ZAMBIA CONSTITUTION OF ZAMBIA (AMENDMENT) ACT NO. 2 OF 2016. AMENDED BY AS ARTICLE 143 OF T HE CONSTITUTION OF :!:AMBIA, CHAPTER 1 OF THE LAWS OF •i:AMBIA THE CONSTITUTION OF ZAMBIA (AMENDMENT) ACT NO. 2 OF 2016. AMENDED BY AS AND IN THE MAT Y"'·':Y" AND IN THE MATTER GF: ... ,-.;t Ii,\:, Pl'B{ IC., ., ' \~l,J. CLE 144 OF THE CONSTITUTION OF . _ ~ PfetNc1r,,..,z }t:i\J}'J;~ CHAPTER 1 OF THE LAWS OF THE UTION OF ZAMBIA (AMENDMENT) 4lilI 1 1 MAR 2 ,.z: ,}IJ}U \ L.~-:--. O'(!;lf.) l~ '-.~~,~-.m,_~>'NO. 2 OF 2016. AMENDED BY AS ,.,. .. _.. . ., ~ ,f' ~- ~ ✓ l •. THE ARTICLE CO NSTITUTION OF ZAMBIA, CHAPTER 1 <Hf THE LAWS OF ZAMBIA AS AMENDED nY THE CONSTITUTION OF ZAMBIA (AMENDMENT) ACT NO. 2 OF 2016. 266 AND OF AND IN THE MA T'·.'ER OF: AND IN THE MATTER OF: . I BE. CTION 9 (5) OF THE JUDICIAL (CODE OF CONDUCT) ACT NO.13 OF 1999 AS AMENDED BY ACT NO 13 OF 2006 OF THE ::. AWS OF ZAMBIA . '.iECTIONS 24 AND 25 OF THE JUDICIAL i CODE OF CONDUCT) ACT NO.13 OF 1999 -R 1- AND IN THE MATTER OF 2024/HP/0262 AS AMENDED BY ACT NO 13 OF 2006 OF THE LAWS OF ZAMBIA. FOR AN APPLICATION LEAVE TO COMMENCE JUDICIAL REVIEW JUDICIAL OF THE DECISION OF THE JUDICIAL COMPLAINTS COMMISSION OF THE REPUBLIC OF ZAMBIA. AND IN THE MATTER OF: THE LONGEST SERVING AND SENIOR PUISNE HONOURABLE JUDGE OF THE HIGH COURT ~ ~~ ~ - P 'RiNc1p 914t ::9,eq '<l 4 ~! M4f? 202~ ~ Fil=. ,. ._~ -~ ·O GJs;-,.,,''•-....., , ·s eo.ii BET WEEN: I THE PEOPL vs JUi ICIAL COMPLAINTS COMMISSION, VIrf~i~IB-tA:CKSKIN MALAMBO, CHAD H MULEZA, DEAN A. MWANSA MUMBA AND THE ATTORNEY GENERAL EX-PARTE (TIMOTHY KATANEKWA) Before the Honourable Mr. Justice G. C. Jvlulenga For the r pplicant: Mr. C. K SIMUKONDA appearing with Mr. K AONGOLA, both of Messrs. Kangombe Associates. RULING Cases re ferred to: 1. Dtvies Mwila (Su;ng as Sec,eta,y Gene,al of the PatdoUc FrnntJ v the Attorney General - Cause No. 2018/HP/2111 -R 2- I I 2. Felix Chipota Mutati and 3 Others v. Winnie Zaloumis suing in 2024/HP/0262 ' er capacity as National Secretary of Movement for Multi Party Democracy (MMD)- Selected Judgment No.31 of 2018. I 3. New Plast Industries v . Attorney General-(2001) Z. R 51. . Legislation and other material referred to: 1. l he Constitution of Zambia (Amendment) Act No 2 of 2016. 2. f he Rules of the Supreme Court (RSC), 1999 Edition (White Book). I Halsbury's Laws of England, Volume 37, Butterworths, 4 t h 3. Edition Reissue ( 1988-2001) I :Law and Practice of the Crown Second Edition (Butterworth's) 4. j ondon, Dublin, Edinburgh, 1993. 1.0 INffRODUCTION l.1 Th is is a ruling on an applica tion for leave to apply for judicial review filed ex-parte by the honourable lv1r. Justice Timothy Katanekwa, a long serving member of the Judiciary and senior puisne judge, ("the Applicant"). In the main, the Applicant challenges the decision of the J u dicifu Compla ints Commission (wh om I shall h ereinafter refer to as the "JCC"), to take evidence in the mann er that it d id and to recommend to th e - R 3- Republican President to remove the Applicant from the office of 2024/ HP/ 026 2 High Court Judge. 1.2 The application is made by way of Notice of Application for Leave to apply for Judicial Review, (hereinafter referred to as the "Notice"), pursuant to Order 5 3, Rule 3 (2 ) of the Rules o f the S upreme Court of England, 1965. The application is supported by an affidavit in support deposed to by the Applicant on the 2QLh February 2024. 1.3 The Notice contains the grounds upon which the Applicant seeks the relief in the terms more fully set out in paragraph 3 .1 of this ruling. In summary, the relie: sought by the Applicant is threefold, namely, declaratory, compulsive and preservatory. On the declaratory footing, the Applicant seeks declarations inter alia that the JCC's action of calling witnesses, (instead of leaving such in itia tive to the complainants) was bereft of constitutional an d/or statutory propriety; that the said action was u njustified, u nreasonable and illegal; and that the p rocedure adopted by the JCC was an excess of jurisdiction being, as it was, contrary to sections 24 and 25 of the Judicial (Code of Conduct) Act No. 13 of 1999. -R 4 - 1.4 I I I I I I I I I 2024/HP/0262 1.5 As to the compulsive orders sought, th e Applicant prays for the I I I I relief of certiorari in respect of both che allegedly unprocedural decision of the JCC to call witnesses, and the resulting finding of a prima facie case against Applicant. The Applicant desires that these decisions be removed into the High Court for purposes of determination and quashing. 1.6 The preservatory orders sought by the Applicant relate to the court's leave, which if granted, the Applicant has applied that the same operate as leave to stay bo:h the recommendation to the President and the subsequent removal from office of the Applicant. 2.0 B, ckground 2 .1 The facts that prompted the Applicant to launch the p resent I proceedings for judicial review against the decision of the JCC, are set out in the affidavit in support of notice for leave to apply for judicial review, sworn by the Applicant on 20th February 2024. I proceed to set out below, by paraphrasing in most part, the contents of the said affidavit. 2.2 The Applicant's Affidavit Evidence. I 2.2 . l The Applicant deposed, inter alia, that by letler dated 7 th November 2023, and in contemplation of reaching the - R 5- 2 0 2 4 /HP/ 0262 retirement age of sixty-fi ve (65), he applied, on 3rd January 2024, to the Republican p resident to be retired. Exhibited as ' TK l' to the supporting affidavit, is a letter to the said effect. 2.2 .3 The Applicant further deposed that prior to h is application to be retired, he was a senior judge of the High Court for Zambia and tbe longest serving member of the judiciary, having served for some forty-one (4 1) years. 2.2.4 In pa ragraph s 5 to 7, the Applicant deposes that the JCC received a number of complaints against him, after which, despite the responsibility of addu cing evidence lying with the complainants, th ree of the JCC's commissioners called for documentary evidence and summoned th e complainants and other witnesses to testify against him. 2 2.5 The outp u t of that inquiry was a report, exhibited as 'TK 2 '. The report, which was then sent to the Pr esident, bore a finding that a prima facie case h ad been established against the Applican t - a find ing which relied u nduly on the witness evidence called by the JCC. -R 6 - d.2.6 202 4 / HP/ 0 2 62 Exhibited as "TK3" and "TK4" were further reports by the JCC sent to the president on 25th January 2024. The Pres'ident had no sooner received these reports than he removed the Applicant from office by letter of even date, exhibited to the supporting affidavit as "TKS". The Applicant further deposed that following the JCC's act of stepping into the shoes of the complainants and failing to follow the rules of natural justice and "acting without authority and h aving prejudiced me" he comes to this court for judicial review. I 2.2.8 In paragraphs 12, 13 and 14, the Applicant deposes to matters which, though presented as fact, appear to be more in the nature of legal arguments. These include the claim that the ,JCC lacked jurisdiction; that the Bangalore Principles upon which the recommendation to the President was made, are inapplicable to Zambia; and finally that th ree commissioners of the JCC, in an act that manifested their ba d faith, allowed the admission of a complaint from a person who not only lacked locus standi, but who in addition raised issues that related to -R 7- 2024/HP/0262 the Applicant's earlier appointment to an office other than that of puisne judge. 2. ' .9 The Applicant further deposes that whilst in Ndola, a registry employee was dismissed from employment following a proven disciplinary case of theft of court files against him. The Applicant says that despite this, he (the Applicant) was blamed for delaying delivery of judgment in a case in which the Applicant in his defence, attributed the delayed or failed delivery of jt1dgment to the loss of a record. Thus, contends the Applicant, his evidence was unjustly disregarded, inexplicably. 2.2.10 The Applicant exhibited "TK6", being a ruling of the JCC declining to refer to the Constitutional Court, certain matters of interpretation raised by the Applicant during the course of the JCC's hearing. TK6 was adduced in support of what appears to be another legal argument contending that the JCC had no j urisdiction to interpret the provisions of I.he constitution . 2 . . 11 The Appljcant further deposes that the three commissioners who have been cited as parties to these proceedings, took the view that a prima Jacie case had -R 8- 2024/HP/0262 been established against the Applicant and based their recommendation to lhe President for the suspension of the Applicant upon such view. This notwithstanding, at the final stage, the com1nissioner s recommended action being taken on issues other than those on which a prima Jacie view ha d been formed, thereby p rejudjcing the Applicant's case such that he was thereby deprived of the opportunity to be heard on such other issues or findin gs. 2 . . 12 The Applicant deposed lbat the evidence he adduced by his witnesses was, despite being uncontested, disbelieved by the three commission ers; that the srud commissioners had stepped into the shoes of the complrunants and that they therefore became complainants and decision makers. Fur th er, he deposed that the finding that the Applicant bore th e responsibility of reconstructing missing records was so perverse and u nreasonable that no reasonable tribunal could arrive at such a findi ng. 3.0 T e Applicant's Case as Pleaded in the Notice 3. 1 By the Notice referred to in paragraphl.3, the Applicant seeks the following relief:- -R 9- I I I I I I I (a) "A declaration that the Judicial Complaints 2024/HP/0262 Commission did not have statutory and or constitutional jurisdiction to hear and determi ne the complaints lodged against Honourable Mr. Justice Timothy Katanekwa considering that the said judge had attained retirement age and had in fact retired in view of Article 142(2) of 2016 of the laws of Zambia. (b) A declaration that the decision made by the three commissioners of the Judicial Complaints Commission of calling witnesses was irrational, unreasonable, unjustified, as the three commissioners of the Judicial Complaints Commission do not have statutory and or authority to help the complainants prove the complaints ag ainst the Honourable Mr. Justice Timothy Katanekwa. (c) A dec laration that the procedure adopted by the commissioners of the Judicial Complaints Commission in arriving at a decision establishing that a primafacie case was made - R 10 - 2024/HP/0262 out against Honourable Mr. Justice Timothy Katanekwa was irrational as the Judicial Complaints Commission had exceeded its jurisdiction when it decided to call witnesses for and on beha lf of the complainants to prove the complainants' complaints contrary to sections 24 and 25 of the Judicial Code of Conduct Act No 13 of 1 999 as amended by Act No 13 of 2006. (d) A declaration that the decision made by the three commissioners of the Judicial Service Commission of calling w itnesses on behalf of the complainants to supp ort the complainants' complaint was irrational, unreasonable, unjustified, and illegal as it prejudiced the right of the Honourable Mr. Justice Timothy Katanekwa to have a f a ir hearing contrary to Article 18 of the Constitution of Zambia Chapter 1 of the laws of Zambia as amended by the Constitution of Zam bia (Amendment) Act No. 2 of 2016 of the laws of Zambia. - R 11- (e) An order of certiorari requiring t he decision 2024 /HP/ 0262 made by the three commissioners of t he Judicial Complaints Commission of calling witnesses on behalf of the complainants to support the complainants' compliant against the Honourable Mr. Justice Timothy Katanekwa be moved into the High Court for purposes of determination and quashing. {I} An order of certiorari requiring the decision made by the three commissioners of the Judicial Complaints Com mission that a prima facie case was made out against Honourable Mr. Justice Timothy Katanekwa and recommending his lordship's removal from office to the President of the Republic of Zambia be moved into the High Court for purposes of determination and quashing as the Judicial Complaints Commission acted without and or exceeded its jurisdiction, failed to comply with the rules of natural justice, acted in error of law on the face of the record and the - R 12- 2024/HP/0262 said decision is illegal and unreasonable in the Wednesbury sense and was made contrary to sections 24 and 25 of the Judicial Code of Conduct Act No. 13 of 1999 as amended by Act No. 13 of 2006 of the laws of Zambia. (g) An order to the effect that if leave is granted to the Applicant to file the application for judicial review such application should operate as a stay of the Judicial Complaints Commission's recommendation dated 25th January 2024 made by Mr. Vincent B Malambo, S. C., Mr. A. Dean Mwansa Mumba and Mr. Chad H. Muleza to his excellency the President Mr. Hakainde S. Hichilema, President of t h e Republic of Zambia and should also stay the removal of the Honourable Mr. Justice Timothy Katanekwa from office as High Court Judge by his Excellency Mr. Hakainde S. Hichilema, President of the Republic of Zambia. (h) The removal of Hon. Mr. Justice Timothy Katanekwa as High Court Judge (sic). - R 13- 2024/HP/0262 (i) If leave to apply for judicial review is granted, a direction that the hearing of the application be expedited. (j) An order that the costs of and occasioned by this application be borne by the Respondents." 3 .2 The foregoing reliefs are what the Applicant will be seeking at the substantive hearing if leave to commence the judicial review proceedings is granted . 4.0 Ar uments at oral hearing 4. . By the Notice filed , the Applicant had not requested an oral hearing on the application for leave. Th e court, desiring to clarify wheth er some of the re)jef so·.1ght was truly intended, issued a notice of hearing for 5th March , 2024. At that hearing, after the court pointed out to counsel that no request for an oral hearing had been made with the application, counsel intimated that he desired to be heard. I indulged the Applicant that prayer. 4 . J further struck out from the Notice, the relief clain1ed under paragraph iii (h) thereof, which appeared to suggest that the Applicant was praying, as one of the reliefs, that he be removed from the office of J udge. IL turned out that the hanging text -R 14- 2 0 2 4 / HP/0262 which introduced the said purported relief resulted from an error in formatting the Notice prior to its printing. 4.2. 1 At the hearing, learned counsel for the Applicant, lvlr. Simukonda, indicated that he would be relying on the Notice, the affidavit in support and the skeleton arguments in supporl thereof, all of which were filed on the 20th of February 2024. He submitted that in these judicial review proceedings, the Applican t is challenging the decision of the Judicial Complaints Commission to recommend to the President the removal from office of the Applicant, based on evidence that was unprocedurally sourced. He submitted that decisions of public bodies are amenable to judicial review and this court is clcthed with the necessary jurisdiction to deal with the decision-making process of a public body. It was submitted on behalf of the Applicant that the real question to be resolved is whether the JCC could exercise its jurisdiction against a retired judge. Counsel argued that the JCC exercised a jurisdiction it did not have when it decided to hear the complaints which were lodged against the judge. Drawing my attention to paragraph 3 of the affidavit in support .l -R 15- of the notice, learned counsel argued that the Applicant had • actually attained the age of 65 and did actually give notice to 2024/HP/0262 retire. He submitted that the factual issue poses the jurisdictional question as to whether the JCC had any statutory or constitutional jurisdiction in terms of Article 142 (2) of the constitution, to hear and determine the complaints which were lodged against the Applicant. 4.4 F'Llr ther, it was argued that in the dissenting opinion of one of the commissioners, there were documents which showed how one retired Supreme Court judge wa s treated by the JCC following the lodging of complaints by the judiciary. How the other judge was treated was consisten t wi th the view that on attainment of the age of 65, a retiring judge was, by operation of law, effectively retired. What counsel appeared to be arguing on behalf of the Applicant, but in less pointed language, is that it followed by logical implication that a person retired by virtue of attaining the statutory age of 65, ceased automatically to fall within the jurisdiction of a body wh ose adjudicatory powers apply only to serving judges. 4.5 The court's attention was also drawn to paragraph 16 of the same affidavit, where it is stated that the JCC acted -R 16- 2024/HP/0262 unreasonably when it failed to refer an issue related to the interpretation of the constitution to the Constitutional Court, but decided to interpret the constitution. It was the Applicant's argument on this score that because the constitution entrusts the Constitutional Court with the au thority to interpret the constitution, the JCC acted without ~u risdiction. Furthermore, the failure by the JCC to refer lhe matter to the Constitutional Court was unreasonable because, to paraphrase the argument, no reasonable tribunal p roperly directing itself and having regard to the law and the facts of the case at hand could have considered itself lawfully possessed of the jurisdiction to continue hearing the complaints and making the recommendaLions that it did . At the hearing, Mr. Simukonda appeared v.rith Mr. Aongola. In buttressing th e former 's submissions, Mr. Aongola called the court's attention to Arl 144(1) of the constitution. He s1.1bmitted that it is notewor thy that in judicial review proceedings, procedure is paramount. It is per tinent, he submitted, for the court to observe that lhe side note to Article 144 is titled "procedure for removal of judge' . It was submitted that that provision contemplates two scenarios. The first scenario is -R 17- 2024/HP/0262 where the removal of a judge is initiated by the JCC. Because of the use of the word 'or', there is a second scenario which requires the removal of a judge to be made via a complaint made to the JCC. 4 .7 It was the Applicant's contention that under the second scenario where the removal of a judge is initiated by a complainant, the proceedings before the commission assume the form of adversarial sessions. That effectively en tails lhat there is a complainant on one hand, a respondent judge on the other hand, and a JCC sitting as an independent arbiter of those proceedings. The instant case, il was argued, ough t to have reflected scenario two, where the JCC sits as an independent arbiter. The net effect of the JCC's decision to invite witnesses at its instance to come and aid it in proving the case of the con1plain an Ls, was a clear b reach of the procedure that is properly set cYut by the constitution as envisaged in Article 144 (2). 5.0 Analysis and Decision 5 . j I have considered the contents of the Notice applying for judicial review. I h ave also considered the grounds upon which -R 18- 2024/HP/ 0262 the Applicant seeks relief, as well as the evidence of lhe Applicant as contained in the affidav;l in support of the Notice. 5 2 In addition, I have carefully considered both the oral arguments made at the hearing and the written arguments filed with the Notice on behalf of the Applicant. 5 ,3 In applications for leave to apply for judicial review, the main issue for consideration by the cot1rt is whether the applicant has demonstrated a sufficient interest in lhe subject matter and whether there is an issue raised by the applicant that merits further inquiry. The issue raised must of course, relate to the ilnpugncd act, omission, decision, or other matter which a public body, tribunal or public officer may, to the detriment of the applicant, have dealt with. 51 In this vein, the learned authors of one of the most authoritative reference materials on English law known to the Commonweallh legal fraternity, namely, Halsbury Laws of England', have s tated that when dealing with an application for leave to apply for judicial review, the first and foremost consideration which the court must determine, is whether the 1 Halsbury Laws of England, Volume 37, Buttcrworths, 4 1 " Edition Reissue ( I 988-200 1) - R 19- applicant has shown that he has sufficient interest in the matter to which the application relates. 2024/HP/0262 5.5 In applying this standard to the present case, the question that I would ask myself is whether the Applicant has demonstrated that he has a sufficient interest in the matter. In making this evalu ation, the court interrogates whether the decision challenged has affected the Applicant directly. In the present case, it is evident that the actions of the JCC of which lhe Applicant complains, set in motion a series of events which culminated in his removal from the office of judge of the High Cour t by the President of the Republic of Zarnbia. 5 .6 On these facts, the Applicant is so directly affected by the JCC's actions that one could hardly call to mind an easier task for the Applicant to prove, than that he has a sufficient interest in this matter. Accordingly, I have no hesitation in finding, as I hereby do, that the Applicant is possessed of sufficient interest in the matter to beseech the leave of this courl to apply for judicial review. -R 20- 5 .7 Having so found , I h asten to point out that the matter does no t 2024/HP/0262 end there. Does it even begin there'? This question is resolved in paragraph 5 .24. There is the further requirement thal the applicant has to h ave 'an arguable case'. I will quote the learned au t.hors of Halsbury Laws of England2 , who at paragraph 169, posit that: " ... the application for leave ... is a threshold stage, so the applicant need show only that he has a prima facie or arguable case or reasonable grounds for believing that there has been a breach of, or threatened breach of, or a failure to perform, a public duty. At this stage, the court should not go into the matter in depth but should consider on a perusal of the material then available whether it discloses an arguable case for the grant of the relief claimed". 5.8 I obser ve two n oteworthy propositions in the above text. The first is that it is no b1.1siness of the court a t leave stage, to venture into a11ything more than a superficial inqu.iry into the existence of an argu.able case. The second, perhaps ra ther 2 Hals ury Laws of Et1gland, Volume 37, Bu ttcrworths, 4,h Ed ition Reissue (1988-2001) -R 21 - 2024/HP/0262 subtle, but certainly more telling, is that the issue must be arguable in relation to the grant of the relief claimed at the substantive hearing. I say it is telling because the ultimate relief claimed is available at the second stage. This is critical, for it entails th at a court heari ng an application for leave to apply for judicial review must necessarily apply its m ind to what relief is being claimed at the substantive hearing. 1n this action, the relevant relief is set out in the Notice filed by the Applican t. So far as is relevant for present pu rposes, the relief claimed, includes the following: (a) "A declaration that t he Judicial Complaints Commission did not have statutory and or constitutional jurisdiction to hear and determine the complaints lodged against Honourable Mr. Justice Timothy Katanekwa considering that the s a id judge had attained retirement age and had in fact retired in view of Article 142(2) of 2016 of the laws of Zambia. - R 22- I I I I I I I I I I I I I I I 15 .9 I I I I I I I I I I I I I I I I I I I I I I I I I I I 2024/HP/0262 5.10 In addition, paragraph (iii) (a) of the Notice refers to one such ground as being lack of "constitutionaJ and/or statutory jurisdiction". In advancing this ground, the Applicant has relied rather heavily on the constitutional provision s set out below, each in turn. Article 142 (21 "142. (2) A judge may retire, with full benefits, on attaining the age of sixty-five years". Ar ticle 144 (1) "144 (1) The removal of ajudge may be initiated by the Judicial Complaints Commission or by a complaint made to the Judicial Complaints Commission, based on the grounds specified in Article 143." Article 236 (2) "236(2) The Judicial Complaints Commission shall - (c) receive complaints laid against a judge or judicial officer as prescribed. (d} hear a complaint against a judge or judicial officer as prescribed" 5. 11 l would pose the question whether, if I were to grant leave, there would not then arise a need for this court, at the hearing of the J udicial review proceedings, to pronounce itself on the provision s of - R 23- 2024 / HP / 0262 Articles 142(2), 144 (1) and 236(2) of the Constitution and the JCC's alleged contravention thereof on the grounds of illegality and excess of jurisdiction, when viewed th rou.gh the lens of the constitution . 5.12 hat then does a determination or evalu ation by a court whether a ,decision was illegal, unreasonable, or in excess of jurisdiction 'depend on? In answering this question, I can do no better than quote the j udgment of my learned sister, Kom·::ie J ., in the Davies Mwila3 case, where she quoted the learned auth-:irs of the text, Applications for Judicial Review: Law and Practice of the Crown Office, as sayin g, at page 13 that: "It is convenient to deal with illegality under four broad heads. All depend upon the construction of the governing legislation or in the case of prerogative powers, the ambit of the power in question. (Underlining mine for emphasis only)." 5 .13 From the forgoing passage, it is clear that statutory (and, I might add, constitutional) in lerp retation becomes inevitable. This brings me back to the ql.lestion of jurisdiction. A determination whether the JCC's decision was illegal, procedurally improper and unreasonable, > Supra, role 1 -R 2 4 - will, to a large extenl, depend on the construction or interpretation lor Articles 142(2) , 144 (1) and 236(2) of the Constitu tion by this 2024/HP/0262 5.14 Ill is trite that matters relating to lhe interpretation of the Constitution are stipulated under P..rticlc 128 ( 1) (a) of the Constitution. That provision, which is set out more fully below, gives the Constitutional Court the original and final jurisdiction in that sphere. "128 (1) Subject t o Article 28, the Constitutional Court I has original and final j urisdiction 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 t o the President, Vice President or an election of a President; 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. -R 25- 2024/HP/0262 (2) Subject to Article 28 (2), where a question relating to this Constitution arises in a court, the person presiding in that court shall refer the question to the Constitutional Court. (3) Subject to Article 28, a person who alleges that- a) an Act of Parliament or statutory instrument; 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." 5.15 It emerges from the text a bove that if it is alleged that the provisions of the Constitution have been contravened in relation to a person, then such person must seek redress from the Constitutional Court, unless the rights contravened relate to Article 28, (i.e., Bill of Rights related), in which case it is the High Cou.-t that assumes jurisdiction. 5. 16 It would seem to be a rather strange proposition that a person applying for judicial review in the High Court may now be required to approach instead, the Constitutional Cou rt. It is strange becau se - R 26- at no point hitherto the 20 16 constitutional amendment had the High Court's jurisdiction in judicial review proceedings ever been 2024/HP/0262 doubted . 5.17 In my estimation therefore, the main issue with which I am presented becomes the followin g. l am invited to grant leave. That leave must be granted if I establish that the Applica.i.,t has a sufficient interest in the matter. I have already found that he does. Before J grant leave, I am also required to satisfy myself that he has an arguable case. The case which I must find arguable is that the JCC acted illegally in recommending to the Presiden t the Ai:plicant's removal from the office of judge, at a point in time when the Applicant had already retired from that office by dint of Article 124(2) of the constitution. It is pertinent that the JCC in subjecting the Applicant to a hearing could only have acted under the enabling provisions of the Judicial Code of Conduct Act and at least the th ree provisions of the constitution set out in pa.ragraph 5 . 10 of this ruli ng. 5. l8 If I should proceed entirely under Order 53, the Applicant's en titlement to leave is very clear. It is not so clear however, if I bring t:.1.e provisions of the constitution into con templation. - R 27- 2024/HP/0262 I 5.19 This is becau se the clear language of the 2016 constitutional I flIDendment now implies that wh ereas r elief was p reviously bbtain able from the High Court against a public au thority that made I F judicially reviewable decis ion that violated a constitutionally 1stipulated righ t or du ty, the legal posi tion has now been modified to I tal,e away some of that power. Differently expressed, the 1constitutional amendments that have taken place in the Zambian I I legal order have had the effect of som.ewhat limiti ng the High Court's in judicial review proceedings in cases which require I power I I interpreting n on -Bill of Righ ts constitution al provisions, as fu rther I illustrated below. I I 5.2d In relation to the rules of cour t practice and legal procedu re in this I I country, Zambia relies on English legal provision s where local I legislation or rules are either inadequa te, or altogether non-existent I on the relevant matter. In this regard, section 10 of the High Court "The jurisdiction vested in the Court shall, as regards practice and procedure, be exercised in the manner provided by this Act and the Criminal Procedure Code, the Matrimonial Cause Act 2007, or any other written law, or by such niles, orders or directions of t he Court as may be made under this Act, the - R 28- I Act provides as follows: I I I I I I I I I I I I I 2024/HP/0262 Criminal Procedure Code, the Matrimonial Caus es Act, 2007, or such writte n law, and in de fault thereof in substantial con fo rmity wit h the Supreme Court Practice, 1999 (White Book/_gf England a nd subiec t to subsection (2), t he law a nd practice applicable in England in the Hig h Court of Jus tice u p to 31st December, 1999" (Emphasis mine). 5.21 T e last part of the quoted text a ccounts for why we in Zambia still uJc the Rules of the Supreme Court of England in the Zambian legal s stem. It is the reason why the Applicant in this case has used Order 53 of the Rules of the Supreme Court of England to commence these judicial review proceedings. Indeed, in the absence of any homegrown rules for judicial review, English rules of practice and procedure will continue to apply. Judicial review is by the design of the English legaJ tradition vested in the High Court of Justice of England, the equivalent of which, in our legal system, is the High Cour t for Zambia. I say aJI the foregoing to mal<e the point which I am about to make, which was also made by a most notable and di~tinguished judge, Lord Denning, in the case of Nyali V the A I torney General4 in the following terms: 4 1956 1 Q pl at pagesl6 -l 7 -R 29- 2024/HP/0262 "The common law cannot be applied in fo reign lands without considerable qualification. Just as with an oak, so with the English common law. You cannot transplant it to the African continent and expect it to retain the .... character which it has in England ... It has many principles ... which can be applied to the advantage of peoples ... the world over; but it has also many refinements, subtleties and tec hnicalities which may not be suited to other folk. These off-shoots must be cut away". 5.22 Tte point is that judicia l review, being as it is, a device contrived in E gland - wh ere the legal structur e features no written constitu tion - cannot be app lied without significant modification to a country with a written constitution. This is especia lly so where, as here, that wf itten constitu tion has restricted the High Court's ability to exercise jurisdiction in cer tain constilutional matters. Simply put, Order 53 says the High Court has jurisdiclion to judicially review the actions of public officials and bodies to detern1ine whether they understand the law and scope of the law under which they have acted, yet if the law allegedly con travened is the Constitution, Article 128 says you cannot go to the l-ligh Court but to another court. That is precisely t~l problem with which I am presen ted here . - R 30 - 2024/HP/0262 5.23 I r ould pause here and pose three qt iestions that will decide this application for leave. (i) Does it not follow that in responding to the invitation by the Applicant that I declare the actions of JCC as being in excess of jurisdiction, illegal, and unreason able, then this court will necessarily have to evalu ate the JCC's aclions against the requirements of the constitution? (ii) Is it not the case that by inquiring, as judicial review requires me to do, into whether the "decision maker understood correctly the law that regulates his decision-making power and give effect to it'' then such scrutiny will necessarily involve my interpreting a constitutional provision ? and (iii) Does the constitution in Article 128 (1) (a) and (b), not reserve I unto the Constitutional Cou rl th e power to interpret the constitution, or inquire into an alleged violation or contr avention thereof? 5 .24 My answer to all these questions is in the affir mative. In 5.7 above, I ml sed as to wh ere a court hearing an application for leave to I commence j udicial review should start and wondered whether it - R 31 - 2024 / HP/ 0262 should be at interrogating whether the Applicant has established I sufficient interest, or had advanced an arguable case, or perhaps \\t ether the court has j urisdiction in the first place. Although it is a determination that a court could arrive at by assessing whether the Ai plicant has an arguable case, I wou ld still venture to suggest that 1e jurisdjctional ~uestion .should, .at least in this country, perh~ps be the starting pomt. Hav111g applied that approach myself, 1 find th( t this Court does not have the jurisdiction to hear and determine this application for leave to commence jt:.dicial review proceedings fot the following reasons: (i) I A determination of the grounds upon which the Applicant has asked this Court to gran t him relief, namely, excess of jurisdiction, u nreasonableness, irrat:onality and illegality, will ultimately tum upon the construction of the content and scope of Articles 142(2), 144( l) and 236(2) of the Constitution. This action is therefore concerned with the interpretation of the said Articles, which is the preserve, not of this court, but of the Constitutional Court. -R 32- I I (ii) I ·. 2024/HP/0262 The Applicant alleges that the series of actions which preceded the JCC's making of the recommenda tion to the President for the removal of the Applicant from the office of Judge of the High Court was procedurally and substantively improper as it contravenes Articles 142(2) 144(1) and 236(2) of the Constitution. To evaluate whether this allegation is meritorious at all, this court will have to not only inquire into the ,JCC's conduct under the relevant Articles of the Constitution pursuant to which it purported to h ave acted, but al.so to form and express a view as to the propriety of such conduct in terms of the Constitution, thereby usurping the power of the Constitutional Court as the original and final arbiter in non bill-of-rights cons ti tulional matters. (ii~) In view of the provisions of Article 128 (2) (c) of the Constitution, relief for judicial revie-.v under Order 53 of the Rules of the Supreme Court of England, pur suant to which the Applicant has applied for leave, has become untenable in Zambia as a form of recourse where, as here, the Applicant prays for relief on grounds involving an allegation which the court cannot determine at the substantive hearing without -R 33- having to inquire into, evaluate or otherwise interpret, a non bill of rights provision of the constitution. 2024/HP/0262 The proper forum to hear and determin e this matter according to Article 128 (3) (c), is the Constitu:ional Court. 5.25 Based on my finding in (iv) above, I would have referred this matter tj the Constitutional Court, in terms of Article 128 (2) (c). However, I find myself quite u nable to do so because the Supreme Court has, in the case of Felix Chipota Mutati & Others v Winnie Zaloumis5, a *ly guided as to the circumstances in which su ch a route could be taken by the High Courl. In that case, the court clarified that: I "The mandate of the High Court is limited to referring constitutional issues on matters that are properly commenced in that court and over which it substantially has jurisdiction to hear and determine." (Emphasis mine}. 5 .26 Hj ving found , as I have done, that I have no jurisdiction to further treat of this matter by reason of want of jurisdiction, it cannot lie in m~ power to refer this matter, as the law requires that the action to ' Selected i udgment No.31 of 2018 - R 34- 2024 /HP/ 0262 been properly commenced in the first 5 .27 The Constitution in Ar ticle 128 (3) requires that a person seeking + ef in connection with a constitutional question may petition that court. Further, in New Plast Industries v . The Attorney General6 the SLtpreme Court held that the mode of commencemen t of any + tion does not la,gely depend on the celief sought but on what is p rovided for by statute. The Court reasoned that: " ... where a statute provides f or the procedure of commencing an action, a party has no option but t o abide by that procedure." 5.28 The procedure is prescribed by the constitution and the proper way is to petition the Con stitutional Court. 5.29 H ving found that the Applicant in praying for leave to commence j dicial review proceedings has cited excess of j urisdiction, illegality and procedural impropriety as grounds for relief, and having found that an assessment of these grounds requires th at I evaluate the c+ d ud of the Judicial Complalnts Commission by cefecence to such 6 (2001) Z. R 51 -R 35- onstitutional provisions as are outside the Bill of Rights, a function - hich, by Article 128 3 (c) of the Constitution, is reserved o the Constitutional Court, I hold that I have no jurisdiction to 2024/HP/0262 ntertain the present application for leave and I dis1niss it ccordingly. In view, however, of the weighty public interest issues aised, and which attend the present application, I make no order as o costs. 5.30 ave to appeal is granted. Delivered at Lusaka this 1 1th day of March, 2024 G. C MULENGA HIGH COURT JUDGE REPUBLIC OF ZAWBIA HIGH COURT OF ZAMBIA .i I 1 MAR 2024 ~ G. MULENGA. J P. 0 . BOX 50067. LUSAKA -R 36-