High Court Paves Way For Judge Nkonde Suspension

HIGH Court judge Sunday Nkonde now faces suspension to pave way for investigations over the manner he adjudicated the liquidation case of The Post Newspaper Limited.

This follows the decision by the Lusaka High Court in its ruling dated November 9, 2020 to discharge the ex-parte leave for judicial review granted to judge Nkonde which operated as a stay of his suspension as the main matter is likely to fail.

Dr Fred M’membe, who is the former proprietor of the defunct Post Newspaper, had lodged a complaint against judge Nkonde before the Judicial Complaints Commission (JCC) for being biased in handling the liquidation case.

Dr M’membe said judge Nkonde could not preside over the liquidation case of The Post Newspaper Limited as he once attempted to render the company insolvent in 2012 when he commenced a law suit against it on behalf of Finance Bank without the bank’s authority.

In November 2018, the JCC found judge Nkonde with a case to answer and wrote a letter to President Edgar Lungu that judge Nkonde be suspended from duty to allow it to investigate him.

However, judge Nkonde applied for leave to commence judicial review proceedings against the Judicial Complaints Commission’s decision dated November 14, 2018 to recommend for his suspension after he was found with a case to answer for misconduct in the manner he handled The Post Newspaper liquidation case.

Judge Nkonde, who cited the Attorney General in the matter, said that the directive by the JCC that the complaint against him by former Post Newspaper proprietor Dr M’membe be heard and that he be suspended, was null and void ab initio.

He sought an order of certiorari to quash the decision of the Judicial Complaints Commission dated November 14, 2018 to establish a prima facie against him claiming the issues complained of were pending determination before the Constitutional Court.

Judge Nkonde argued that the decision of the JCC was illegal, procedurally improper and excess of jurisdiction or error on the law and record.

The court granted him leave to commence judicial review which operated as a stay of the JCC’s decision to suspend him.

On March 11, 2019, the State asked the court to set aside the ex-parte order for leave to apply for judicial review.

Chibesa Mulanda, a senior state advocate, said judge Nkonde’s application seeks an interpretation of the provision of the Constitution insofar as it relates to the removal of a judge and that the said application was before a wrong court.

Mulanda said judge Nkonde commenced the case after the JCC found him with a case to answer for gross misconduct and recommended that President Lungu suspends him pending further hearing.

The State argued that the ex-parte leave granted to judge Nkonde be discharged as the main matter was bound to fail as the right court to determine his application was the Constitutional Court and the High Court had no jurisdiction to determine the same.

Mulanda added that the matter was wrongly commenced and that it should be dismissed with costs to the state.

In her ruling justice Chawatama discharged the order granting leave to commence judicial review.

“I agree with the respondent (the State) that the removal of a judge is governed by the Constitution. The ex-parte leave granted to the applicant (judge Nkonde) is hereby discharged. The reason for the discharge is that I am fully persuaded that the main matter is bound to fail,” said judge Chawatama.

The Post was crippled by the State on the pretext that is was technically insolvent and could not pay its creditors.

This was after its former employees Andrew Chiwenda, Abel Mboozi, Roy Habaalu, Mwendalubi Mweene , Bonaventure Bwalya and the Zambia Revenue Authority commenced an action in the Lusaka High Court to wind up the company on November 1, 2016 claiming that the newspaper had failed to pay them their money cumulative to K815,000, and that it was just and equitable to wind it up as other creditors had seized it’s property.

The liquidation of the Post Newspapers and the process followed remains heavily contested.

This article originally appeared on The Mast