FORMER High Court Judge Joshua Banda has insisted that the Judicial Complaints Commission (JCC) has no power to determine complaints against a judge for allegations that took place before such a person took office.
The former High Court judge argues that this is because the code of conduct applicable to judges only begins to apply once a person takes up such office, and not before.
Judge Banda has, therefore, asked the Constitutional Court to grant him the reliefs he is seeking in the matter he is challenging the President’s decision to remove him as High Court Judge.
Judge Banda sued the State last year, seeking an interim order to stay the President’s decision to remove him from the office of Judge of the High Court.
He wants a declaration that the JCC’s jurisdiction to hear complaints against judges does not extend to matters that happened prior to a judge’s appointment to the office of Judge as the same is the preserve of the President, JCS and the National Assembly.
Justice Banda who cited the Attorney General, also wants, among others, an order to quash the report of the JCC together with its findings and recommendations to the President regarding him for being unconstitutional and a declaration that his removal from office by the President was null and void ab initio.
In his final submissions filed on January 30, 2023, Justice Banda insisted that the JCC has no power to determine complaints against a judge for allegations that took place before a person became a judge.
“The JCC has no power to determine complaints against a judge for allegations that took place before a person became judge, for the reason that the code of conduct applicable to judges only begins to apply once a person takes up the office of the judge and not before. To allow this will mean retrospective application of the law and further will usurp the powers granted by the Constitution and vested in other constitutional bodies whose operations are autonomous and cannot be supervised by the Judicial Complaints Commission,” he said.
“The Constitution has vested Authority to scrutinise the conduct and suitability of a person prior to their appointment as a judge in the President, the Judicial Service Commission and the National Assembly. Once these officers perform their functions, the Judicial Complaints Commission cannot again be seen to be supervising or reviewing the work done by these autonomous constitutional offices”.
Judge Banda argued that in as much as judges should be held accountable for their actions, the accountability must follow a fair and just process as spelt out in the Constitution.
“In as much as judges must be held accountable for their actions, the accountability must follow a fair and just process as spelt out in the Constitution and anything short of fairness ought not to be accepted. A judge need not be ambushed in proceedings for removal as was the case in this matter when in fact he was not aware that he was facing proceedings for removal as no document stated so that the case he was called upon was for misconduct and not gross misconduct,” he stated.
Justice Banda asked the court to grant him the reliefs sought saying he has proved his case.
“It is only when the process described in the law is followed to the letter that a removal can be considered as legitimate. We pray that this is a good and proper case to grant the petitioner the reliefs sought in the petition as the petitioner has proved his case,” said justice Banda.
