JOSHUA NDIPYOLA BANDA V ATTORNEY GENERAL (2022/CCZ/0010) CASE REVIEW

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8th April 2024

INTRODUCTION

The Legal profession is said to be a noble one. This entails that legal practitioners, judicial officers and judges are expected to conduct themselves in a manner of integrity. However, this quality is not always portrayed. The following is a review of the case of Joshua Ndipyola Banda V Attorney General (2022/CCZ/0010) as decided in the Constitutional Court for Zambia. As will be seen, this case espouses the position of the law of Zambia regarding the importance of ethical conduct in the legal profession both in one’s personal and public life as well as the repercussions of misconduct.

BRIEF FACTS

A decision was made by the president to remove the petitioner, Joshua Ndipyola from the office of the High Court Judge on recommendation of the Judicial Complaints Commission Following the mandatory provisions of the Constitution. This was after Mr Mwanza, the complainant issued a complaint based on the conduct of the petitioner prior to him becoming judge. The complaint involved the petitioner soliciting a sum of k63000.00 while he worked as an undersheriff in the Judiciary in order for Mr Mwanza’s case to have a favourable outcome.

ISSUES

Whether or not the Judicial Complaints Commission has jurisdiction to hear allegations for actions that took place prior to becoming a judge?

Whether or not the president contravened the Constitution when he removed the petitioner from office of judge under Article 144(5) (b) of the Zambian Constitution (No 2 of 2016) without first following the provisions of Articles 144(3) of the constitution?

RATIONALE AND HOLDING

The judge is not insulated from being investigated for past misconduct which occurred before one became judge especially were a complaint lodged against them is pending hearing. The Judicial Complaints Commission did not usurp the powers of the Constitutional Court when it investigated the complaint. This is because the body in discharging its constitutional duties applies to the constitution. An aggrieved party may petition the court alleging breach of Constitution by the Judicial Complaints Commission through its decisions in line with Article 128 (3)(C) of the constitution. Which explains that actions, omissions and decisions made by persons in authority may be heard in the constitutional court.

The Judicial Complaints Commission acted in line with the mandate in Article 143 of the constitution which provides the procedure to be followed when a judge is to be removed. This was seen when the petitioner was informed about the complaint and gave a written response to the allegations. Summons were then issued for him to appear before the Judicial Complaints Commissions and to present evidence. Thus, Article 143 of the constitution was complied with in that, the Judicial Complaints Commission specified in the summons that the petitioner was to answer to the allegations of misconduct pertaining to corrupt practices. This complaint was considered even though it was after ratification of the petitioner’s appointment as High Court judge as it covered misconduct pending before it.

SIGNIFICANCE OF CASE

This case is cardinal to our jurisdiction because it sets the precedent on the required ethical conduct of judicial officers in Zambia. The court clearly stated that the petitioners conduct led to the compromising of the integrity embodied in the office of High Court judge. The court was persuaded by the case of Shirang Yadavarao Waghamare V State of Maharashtra and others (Appeal No. 7306 of 2019) of the Indian jurisdiction which held that integrity is the hallmark of judicial discipline and the judiciary must take utmost care to protect the temple of justice. Thus, based on this premise or reasoning, the court found that the petitioner Mr Banda engaged in corrupt practices which according to Article 266(c) constitution is tantamount to gross misconduct leading to removal from office of judge.

The case further clarifies the procedure to be followed whenever a judge is to be removed from office as stipulated in Article 143 and 144 of the Constitution.

Additionally, the court highlighted that it was immaterial that the gross misconduct of the petitioner occurred before his appointment as judge. This is because the misconduct was enough to discredit a judge of the high court and make them liable for their actions.

The court further stated that the legal profession upholds the quality of integrity in highest regard. As such, even procedural impropriety in the removal process cannot be a valid reason to acquit a judge whose misconduct was established.

CONCLUSION

This case illustrates how the Zambian Legal system places a high regard on professional ethics and integrity of judicial officers or judges. These qualities are to be upheld as they carry on their duties.

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