M’membe fights court order

Tue, 23 Jan 2018 09:05:28 +0000

By NATION REPORTER

FRED M’membe has run to the Constitutional Court in an attempt to overturn a High Court ruling liquidating the Post Newspaper.

He is relying on a ruling by the much criticized  and reviled Judicial Complaints Commission which faulted presiding Judge  Sunday Nkhonde, but which ruling was overruled by the  Kitwe High Court.

In addition President Edgar Lungu refused to suspend Judge Nkhonde as requested by M’membe because there was a High court ruling staying the JCC ruling.

M’membe had written to the JCC to complain about Judge Nkonde and to seek his removal but Judge Nkonde sought and obtained a high court decision nullifying the recommendation by the JCC that he should reverse his ruling.

President Lungu also refused to suspend Judge Nkonde on account of the high court ruling which determined that the JCC had no role to play.

But now M’membe wants the Constitutional  court to uphold his complaint and ruling by the JCC.

He is using a quashed Judicial Complaints Commission (JCC) ruling as grounds to regain legal ground in a matter in which he is seeking to set aside the court consent that led to the declaration of the Post Newspaper insolvent.

The JCC wrote to President Edgar Lungu recommending that Judge Sunday Nkonde had a case to answer following a complaint brought before the commission by Mr M’membe.

However, the President could not act on the JCC recommendations because he had been served with a stay following Judge Nkonde’s move to seek judicial review of the JCC decision.

The judicial review which is also a stay of execution, effectively curtailed the President’s ability to suspend the judge as required by law when the JCC makes such a recommendation.

Mr M’membe has petitioned the Constitutional Court seeking a declaration that the High Court had no jurisdiction to quash the JCC ruling that found Judge Nkonde with a case to answer in a complaint from the appellant.

Mr M’membe has sued Judge Nkonde and the Attorney General, alleging that the duo violated Article 1 (S) when they entered into a consent order quashing the ruling of the JCC that found Justice Nkonde with a prima facie on allegation of gross misconduct.

Mr M’membe claimed that his complaint to the JCC on February 10, 2017 was that it was gross misconduct that Judge Nkonde should sit and determine a matter involving a company he tried to destroy.

“I wrote to the Judicial Complaints Commission, complaining that Mr Justice Nkonde brought an action against the Post Newspaper allegedly on behalf of Finance Bank just before the 2011 general elections. The action which related to Zambia Airways had hallmarks of being politically inspired.

“What is worrying about Justice Nkonde’s conduct in this matter is that I now have it on good authority that when he commenced the action against the Post, he was acting without instruction from Finance Bank. That action appeared calculated to destroy the Post and led to its liquidation as part of a political scheme to silence critical media,” Mr M’membe indicated.

He claimed that by a ruling of November 10 2017, the JCC found Justice Nkonde with a case to answer and was to submit the report to the president within seven days but that the step was not taken.

Mr M’membe claimed that the Attorney General then commenced an action in the Kitwe High Court against Justice Nkonde questioning the constitutional actions of the JCC in finding Judge Nkonde with a prima facie case.

He alleged that the duo then entered in a consent order quashing the ruling in spite of the clear provisions of the constitution making the Constitutional Court the only court to hear and determine constitutional matters.

Mr M’membe asked the court to stay the decision of the High Court to quash the ruling of the JCC.

He also seeks a declaration to nullify the consent order in the High Court on account of want of jurisdiction, including the consent judgement of the High Court that declared the company bankrupt.