Benjamin Mwelwa v Attorney-General (10 of 2017) (14 March 2019) – ZambiaLII

' (308) IN THE CONSTITUTIONAL COURT OF ZAMBIA 2017 /CCZ/0010 HOLDEN AT NDOLA SELECTED JUDGMENT NO. 9 OF 2019 (Constitutional Jurisdiction) BETWEEN: BENJAMIN MWELWA PETITIONER AND ATTORNEY-GENERAL RESPONDENT CORAM: Sitali, Mulenga, Mulembe, Munalula, Musaluke, JJC on 17th July, 2018 and on 14th March, 2019 For the Petitioner: Ms. D. Kapitolo Makebi Zulu Advocates For the Respondent: Mr. F.K. Mwale Principal State Advocate Mr. M. Hamanyati Principal State Advocate Mr. D. Chileshe Senior State Advocate JUDGMENT Sitali, JC delivered the Judgment of the Court. Cases referred to: 1. Subramaniam v Public Prosecutor [1956] 1 W.L.R. 965. 2. Mutambo and 5 Others v The People (1965) Z. R. 15. J ] (309) 3. Masiye Motels Limited v Rescue Shoulders and Estate Agency Limited (2010) Z.R. 337. 4. John Kasanga and Wilmingtone Shayawa Kasempa v Ibrahim Mumba, Goodwin Yoram Mumba and Yousuf Ahmed Patel (2006) Z.R. 7. 5. Kenmuir v Hattingh (1974) Z.R. 162. 6. Haonga and Others v The People (1976) Z.R. 200. 7. National Breweries Limited v Philip Mwenya SCZ Judgment No. 28 of 2002. 8. Attorney-General v Mpundu (1984) Z.R. 6. 9. Cobbett-Tribe v .Zambia Publishing Company Limited (1973) Z.R. 9. IO.Attorney-General v Kapwepwe (1974) Z.R. 217. 11.Patrick Fungamwango and Zambia Daily Mail v Mundia Na1ishebo Appeal No. 133 of 1999. Legislation Cjted: 1. The Constitution of Zambia Chapter 1 of the Laws of Zambia, Article 122 (1) and (2). 2. The Subordinate Courts Act, Chapter 28 of the Laws of Zambia, section 55. 3. The Judiciary Admfujstration Act No. 23 of 2016, sections 8 and 15. 4. The Judicial Service Co~issioil Regulations, 1998 regulation 34. Other Authorities referred to: 1. Halsbury's Laws of England 4th edition, volume 12, para 1102 and 1112. 2. Halsbury's Laws of England 5t1>. edition, volume 20, para 130 3. Michael Allen and Brian Thompson, Cases and Materials on Constitutional and administrative Law, Seventh Edition, Oxford Messily Press, New York: 2002. 4. Bryan A. Garner, ed. Blaclrs Law Dictionary, Tenth Edition, Thomson Reuters, Dallas, Tex.as, 2014. By petition filed into Court on 19th September, 2017, the Petitioner seeks the following remedies: J2 (310) (a) A declaration that the decision to suspend the Petitioner, Benjamin Mwelwa, made on the 9,11 August, 2016 by the Acting Chief Registrar, Hon. Charles Kafunda, is illegal and unconstitutional ab in.iti.o and therefore must be expunged from the Petitioner's employment files. (b) Damages for the illegal suspension and embarrassment which are: (i) Punitive damages; (ii) Ordinary damages. (c) Damages for the professional reputation damage. odium, anguish and torture caused during the period of suspension. (cl) Costs. (e) Any other relief the Court may deem fit. The petition was accompanied by an affidavit verifying facts. ln his petition, the Petitioner stated that he is a Magistrate of the second class based at the Livingstone Subordinate Cou11:. That on 20Ui July 2016, he presided over a criminal case between The People v Milford Maambo and 2 Others cause number 2L/99/ 16 which was prosecuted by two prosecutors from the Anti-Corruption JS (3 11) Commission, namely Mr. S. Muchula and Mr. S. Kabambe. As the matter came up for commencement of trial on that date, the prosecution presented a nolle prosequi to the Court to discontinue the criminal proceedings against the accused persons. Defence Counsel however, opposed the entry of the nolle prosequi on the ground that the Director of Public Prosecutions (DPP) had not f'1..trnished the reasons for the entry of the nolle prosequi to the Court as she was required to under Article 180 (4) (c) of the Constitution as amended by the Constih1tion of Zambia (Amendment) Act No. 2 of 2016 (henceforth the Constitution as amended). He stated that defence counsel urged him, as the trial Court, to either order the prosecution to furnish reasons pursuant to Article 180 (4) (c) of the Constitution as amended or refer the matter to this Court for the interpretation of Article 180 (4) (c) and (7). The Petitioner went on to state that in his ruling dated 20th July 2016, he determined that the defence counsel's objection had 1·aised constiti..ttional issues and therefore referred the matter to this Court for the interpretation of Article 180 (4} (c) and (7) of the J4 (312) Constitution pursuant to Article 128 (2) of the Constitution as amended. He further stayed the criminal proceedings pending the outcome of the Constitutional Court's decision on the matter. He stated that on 9th August, 2016, he received a letter from the Acting Chief Registrar of the Judiciary (Honourable Charles Kafunda) suspending him from employment for referring the said matter to the Constitutional Court. He stated that Hon. Kafunda alleged that he was incompetent and had misconducted himself by referring the matter to this Court for interpretation of the relevant constitutional provisions. The Petitioner went on to state that he had remained suspended from g,n August, 2016 and that no charges had been leveled against him since then. He stated that, however, despite being on indefinite suspension, Hon. Kafunda had persistently continued to intimidate and threaten him through letters demanding that he should write judgments or be charged with insubordination and failing to obey instructions. The Petitioner contended that he, being a magistrate who had sworn to uphold the Constitution and the law, was not answerable to the Judiciary or to JS (313) any oilier person in the discharge of his judicial functions, He contended that he, therefore, could not be suspended from office for performing his judicial functions, as happened in this case. The Petitioner further contended that the Acting Chief Registrar's action of suspending him was in breach of the Constitution and interfered with the independence of the Judiciary especially as he was suspended while the matter was being heard by the Constitutional Court. The Petitioner therefoi-e asserted that the Acting Chief Registrar had breached the provisions of Article 122 (1) and (2) of the Constitution as amended, section 55 of the Subordinate Court Act, Chapter 28 of the Laws of Zambia and regulation 34 of the Judicial Service Commission Regulatjons, 1998. He therefore prayed that he may be granted the reliefs set out in paragraph 11 of his petition. The Respondent filed an answer and an affidavit in opposition on 141h March, 2018. The Respondent admitted that the Petitioner was a magistrate of the second class at Livingstone Subordinate Cow·t but denied that the Petitioner was suspended on the basis of the ruling he made in the case of The People v MilfoTd Maambo J6 (314) and 2 Others cause number 2L/92/ 16, wherein he decided to refer the subject matter to the Constitutional Court for its interpretation. 'The Respondent aJleged that the Petitioner was suspended because of a complaint made to the Judiciary by the Anti-Corruption Commission regarding the w1ethical conduct of the Petitioner of fraternizing with the defense counsel in the case of The People v Milford Maambo and 2 Others cause number 2L/92/ l6 while the matter was actively on-going before him, thereby compromising his impartiaJity in the proceedings. The Respondent admitted that the Petitioner was suspended by letter dated gu, August, 2016 written by the Acting Chief Registrar of the Judiciary but denied that the suspension was due to the reference of the matter to the Constitutional Court. He asserted that the Petitioner's subsequent refusal to give effect to the nolle prosequi entered by the State was deemed as further evidence of his misconduct complained of by the Anti-Corruption Commission. The Respondent contended that the Petitioner's behavior prior to his refusal to enter the nolle prosequi was J 7 (315) unbecoming of a judicial officer and thus necessitated the commencement of the disciplinary proceeclings against him. The Respondent stated that contrary to the Petitioner's assertion 1n his petition, the Petitioner had remained suspended from office tn line with lhe Judicial Service Commission Regulations. He denied that Honourable Kafunda had issued threats against the Petitioner or that he had breached the Constitution and thus interfered with the independence of the Judiciary by suspending the Petitioner as alleged by the Petitioner. The Respondent asserted that the Petitioner's suspension was lawful and did not breach the Constitution or any other law a.s alleged. He stated in conclusion that the Petitioner is not entitled to any of the reliefs he seeks or at all. At the trial of the petition, the Petitioner relied on the witness statement which he filed on 14th December 2017, which statement he adopted as his evidence in chief. [n tl1at state1nent, the Petitioner reiterated the contents of his petition regarding the circumstances which led to his suspension and added that he was shocked by the action taken by the Acting Chief Registrar to J8 (316) suspend him from office for performing his judicial functions as the action was intended to instill fear in him as a judicial officer and implied that he must consult the Acting Chief Registrar as he made judicial decisions. The Petitioner contended that the Acting Chief Registrar had no legal authority to suspend a judicial officer from office for performing his judicial functions and that his action in doing so was a gross violation of the provisions of the Constitution regarding the independence of the Judiciary which is expressed through the independence of judges and magistrates as they make judicial decisions. He asserted that to suspend a magistrate for making a judicial decision would interfere with judjcial independence and that the country would ultimately have no judicial independence. The Petitioner stated that the Acting Chief Registrar had not charged him before a11d after he suspended him on August, 9 th 2016. The Petitioner went on to state that whilst on suspension the Acting Chief Registrar had continued harassing him and intimidating him by directing him to write judgments or face more J9 (317) disciplinru-y action. To support that assertion, the Petitioner referred the Cotu·t to the letters to that effect written to him by the Acting Chief Registrar and to his respective responses on pages 67 and 68 and 93 to 96 of the Petitioner's bundle of documents. He added that on June, 2017, instead of receiving the 9th charge for the offence he was suspended for, he received a different charge of misconduct by a judiciaJ officer this time from the Registrar-Subordinate Courts (Mrs. 1'waambo Musonda). ln that letter, Mrs. Musonda informed him that her office had received a complaint against him from the Anti-Corruption Commission concerning his close association with Major Masonga of l{BF and Pru·tners. a firm that was representing one of the accused persons in a case involving the Mayor, Town Clerk and a Councillor of the Livingstone City Council. She stated that the case was before him and was being prosecuted by the Anti-Corruption Commission and that it was alleged that on 19th July, 2016 the tv.o prosecutors from the Anti-Corruption Commission had found hi.tn with defence counsel at the offices of Messrs. KBF and Past.ners and further, that J lO (318) he and the said defence counsel were usually seen together in public places. The Petitioner stated t11at the Acting Chief Registrar and the Registrar-Subordinate Cow·ts were referring to the case of The People v Milford Maambo and 2 Others cause number 2L/92/ 16 which he had referred to the Constitutional Court for interpi-etation. He contended that the Acting Chief Registrar and the Registrar Subordinate Courts had come up with two different charges from the same facts. He further stated that the two ACC public prosecutors who complained to the Judiciary that they had found him at KBF and Partners instead of complaining to the Judicial Complaints Commission as per law had appeared before him on 20th July, 2016 when they presented the nolle prosequi in court and yet they did not bring it to his attention that they had found him at KBF and Partners the previous day but decjded to complain in Lusaka. The Petitioner asserted that he found the charge letter from the Registrar-Subordinate Courts very unclear and so he requested for further and better particulars but that to date the particulars J ll (319) had not been provided to him. He stated that instead of receiving further and better particulars, on 301h JuJ1e, 2017 he received a letter from the Registrar-Subordinate Courts directing him to answer to the charges as they were clear as stated. He was further informed U1at management was awaiting the decision of the Constitutional Court for them to make a decision, which response he found to be absurd. He wondered how management could await the decision of the Constitutional Court to make a decision on his suspension when U1e said management had found it fit to suspend him from office whilst the matter was still before the Constitutional Court pending determination. He further stated that he responded to the charge by letter dated 121 July, 2017 which he copied to the Chairman of the h Judicial Service Commission and the Atton1ey-General. The Petitioner went on to state that this Court in its judgment delivered on 111 J uJy, 2017 on the interpretation of Article 180 (4) h and (7) of the Constitution regarding the powers of the DPP to enter a nolle prosequi, which matter he had referred to the Court, agreed \Vlth him that the matter had raised important constitutional J 12 (320) issues. He stated that despite the judgment of this Court on the mailer referred to it, he had remained suspended. The Petitioner further sta.ted that on 24lh September, 2017, he received two letters, one from the Registrar-Subordinate Courts dated 1"' September, 2017 in which he was informed that the Registrar-Subordinate Courts had found his exculpation unsatisfactory and had referred the matter to the Chief Administrator for further action. The second letter was written by the Chief Administrator dated 22"'d September, 2017. The Chief Administrator informed him that the Registrai·-Subordinate Courts had referred the matter to her for further action pw·suant to regulation 40 (3) (c) of U1e Judicial Service Commission Regulations, l 998 and that she would table his case before the Judicial Service Commission. She further informed him thal he would remain on suspension pending the determination of the matter by the Judicial Service Commission in terms of regulation 34 of the Judicial Service Commission Regulations, 1998. The Petitioner stated that he was shocked that the Chief Ad.nunistrator upheld his suspension by the J l3 • (321) Acting Chief Registrar and referred the matter to che Judicial Service Commission when he had not been heard. The Petitioner asserted lhat the Acting Chief Registrar's action was illegal and unconstitutionaJ as he disregarded the various rights conferred on him (Petitioner) by the Constitution. He contended that if allowed to stand the action ·would curtaU his liberty as a magistrate to refer matters to the Constitutional Coun or to the High Court in future for either guidance or interpretation. He therefore w·ged us to quash his suspension. I11 cross examination, the Petitioner conceded that after he was served with the suspension letter dated 91.1, August, 2016, two other letters were written to him. The first letter was written by the Registrar-Subordinate CouTts while tbe second one was written by the Chief Administrator. Asked to explain what a Court should do when a nolle prosequi is entered in criminal proceedings befo1·e it. the Petitioner stated that the Court is supposed to discharge the accused person. He conceded that he did not discharge the accused in the case of The People v Milford Maambo and 2 Others after the prosecution presented a nolle prosequi. J ]4 • (322) When asked to confirm whether he was found at tl'le law firm of Messrs. KBF and Partners in the company of defence counsel who was representing one of the accused persons in the case of The People v Milford Maambo and 2 Others, the Petitioner stated that he could not remember. When referred to the letter dated 30•h June, 2017 which was written to him by the Registrar-Subordinate Courts and which is on pages 10 J to 102 of the record of proceedings and asked if be still maintained that the Registrar-Subordinate Courts did not respond to his request for further and better particulars, the Petitioner conceded that the Registrar-Subordinate Courts did respond to his letter requesting for further and better particulars. He stated that he was aggrieved by the decision of the Acting Chief Registrar to suspend him but that his relationship with him prior to U,at was cordial. He further stated that none of his supervisors had brought the allegations in the suspension letters to his attention and that they had not spoken to him about the allegations prior to writing the suspension letters. J 15 (323) Asked to explain the circumstances in which he was transferred from Sesheke to Livingstone, the Petitioner said that he had requested for the transfer when th e Registrar of the Judiciary who was Honourable Justice Matthew Zu lu, at that time, and other senior Judiciary staff visited Southern Province in 2014. He admitted that, as a magistrate, he had dealt with a number of cases involving confiscated alcohol but denied that he dealt with a case wherein he ordered that the confiscated alcohol should be distributed to Government departments or that he took most of the alcohol to his own premises. The Petitioner further conceded that of the four defence la,\<yers who were representing the accused persons before him in the case of The People v Milford Maambo and 2 Others , namely Mr. Nkausu of A. C. Nkausu and Company, Mr. J , Zimba of Makebi Zulu Advocates, Mr. Phillip Mukuka of AMC Legal Practitioners and Major Masonga of KBF and Partners, three of those lawyers were on record as representing him in this matter, That marked the close of the Petitioner's case. J l6 (3241 The Respondent called only one witness, namely Hon. Charles I<afunda, the Chief Registrar of the Judiciary. He testified that the Petitioner had three charges leveled against him. The first charge was misconduct arising from being found with a lawyer who was representing the accused persons who were apperu·ing before his Court at the offices of the law firm, l<BF and Partners. The other two charges arose after the first chru·ge and related to material that was scandalizing the Chief Justice and was attributed to the Petitioner. The witness testified that in August., 2016 tl1e Judiciary received information from the Anti-Corruption Commission that Mr. Silumesi and Mr. Kabambe Sifayak:i the two prosecutors from the Commission had found the Petitioner who was presiding over a matter involving Livingstone City Council at the law firm of the lawyer who was representing the accused persons. He denied that he had continued to intimidate the Petitioner by threatening to charge him for insubordination and failure to obey instructions if he did not write judgments despite his indefinite suspension as alleged by the Petitioner. He stated that despite the Petitioner's suspension, J 17 (325) he was still an employee of the Judiciary and that he had written letters to the Petitioner regarding five accused persons who ,vere incarcerated at Sesheke and were awaiting judgment to be delivered by the Petitioner. The witness further testified that contrary to the Petitione,'s assertion that the Judiciary did not respond to his exculpatory letter, lhe Judidaty had found his exculpation unsatisfactory and had referred the matter to the Chief Administrator for further action in accordance with the Judicial Service Com.mission Regulations, 1998 and U1.at the Petitioner was accordingly informed. The witness went on to testify that the Petitioner had a duty to dischru·ge the accused persons after the Director of Public Prosecutions entered a nolle prosequi in the matter before him, In cross examination, the witness denied that the main reason the Petitioner was suspended was because he refen-ed the matter concerning the entry of the noUe prosequi to the Constitutional Court. He, however, conceded that the two prosecutors from the Anti-Corruption Commission who were alleged to have found the Petitioner with defence counsel, at KBF and Partners were not J l8 (326) mentioned in the letter in which the Petitioner was charged with the offence of misconduct by a judicial officer, which letter was written to the Petitioner by the Registrar-Subordinate Courts. He also conceded that the public places in which the Petitioner and defence counsel were allegedly seen togethe, were not stated in that let1.er. The witness stated that the issue of the specific charges which were to be leveled against the Petitioner according to the suspension letter dated 91h August, 2016 was delegated to the Registrar-Subordinate Courts, He said the charge letter was written to the Petitioner in June, 201 7 and not a year after he was suspended. The witness explained that the procedure which should be foUowed when there is misconduct by a judicial offic;er is that a charge should be leveled against the judicial officer who must respond to the charge. After the judicial officer has responded to the charge, the charging officer examines the response and refers the matter to the Chief Administrator, if dissatisfied with the response. The Chief Administrator then tables the matter before J l9 (327) the Judicial Service Commission which determines the matter depending on the circumstances. The witness conceded that in this case, the Petitioner was not charged in the suspension letter dated 9,h August. 2016. He also conceded that the misconduct by the Petitioner alleged in the letter dated gu, June, 2017 was not reported to the Judicial Complaints Commission. The witness explained that after the Petitioner responded to the charge, the Registrar-Subordinate Courts informed him that she was not satisfied with his response and that she had referred the matter to the Chief Administrator. He stated that the Chief Administrator did present the matter before the Judicial Service Commission. The Judicial Service Commission decided to give the Petitioner a hearing and the process was still ong01' ng. ln re-examination, the Respondent's witness when asked to clarify what he meant when he said in cross-examination that the 1nain reason the Petitioner was suspended was not because he referred the matter of the nolle prosequi to the Constitutional Court, said there were two issues that had arisen, He explained that the J20 (328) first issue was that of the misconduct which was alleged and the second issue was regarding the Petitioner's competence for his having failed to handle the nolle prosequi. He stated that in his letter to the Petitione1-dated 9th August, 2016, he informed him that specific charges would be brought against him by his supervisor who is the Registrar-Subordinate Courts. That this "'as done in U,e letter dated 9,11 June, 2017 written to him by the Registrar Subordinate Courts. He explained that the delay in charging the Petitioner was caused because after he suspended the Petitioner, he realised that the issue relating to his handling of the nolle prosequ:i was before the Constitutional Court and so he decided to wait for the decision of the Court on the matter. Whilst waiting for the Court's decision, it was realised that it would not be proper for the Petitioner to remain on suspension indefinitely. lt was tl,erefore decided to separate the charges and proceed with tbe charge relating to misconduct rega.rdiJ1g his being found at defence counsel's law firm. He stated that the judgment of the Constitutional Court was to the J21 (329) effect that the Petitioner ought to have discontinued the matter after the entry of the nolle prosequi. That marked the close of the Respondent's case. The Petitioner filed written submissions on 10111 August, 2018 in which it was submitted that the genesis of this matter was the suspension letter dated 9th August, 2016 which shows that the Petitioner was suspended for referring the constitutional issue relating to the entry of the nolle prosequi by the OPP in the case of The People v Milford Maambo and 2 Others to this Court for interpretation of Article 180 (4) and (7) of the Constitution as amended. It was submitted that the question was whether the Petitioner had misconducted himself as a judicial officer by referring the matter to the Constitutional Court. To answer that question, counsel cited Article 128 (2) of the Constitution and submitted that according to that Ai-ticle, whenever a Cow·t is faced with a matter that raises a constitutional issue, the Court must refer the issue to the Constitutional Court for determination. Counsel further cited the provisions of Article 1 (5) of the Constitution as amended which provides that a matter relating to J22 (330) th.is Constitution shall be heard by the Constitutional Court in support. Counsel submitted that it was on that p1·emise that the Petitioner when faced wit11 the objection raised by the defence to the entry of the nolle prosequi in the case of The People v Milford Maambo and 2 Others referred the mauer to this Cow·t for the determination of tl1e constitutional issue raised. Counsel contended that in doing so, the Petitioner merely followed t11e law in the discharge of his duties as a judicial officer and that this Court in its judgment on the matter agreed with the Petitioner that the matte1· had raised an important constitutional issue. lt was submitted that the Petitioner therefore could nol be said to have misconducted himself by referring the constitutional issue to this Court as stated in U1e suspension letter. It was fl.irther submitted that although the suspension letter written by the Acting Chief Registrar stated that the Petitioner would in due cow·se be advised of ilie specific charges against him by his supervisor, no such charges had been brought against hin1 by his immediate supervisor who is the Chief Resident Magistrate J23 (331) (CRM) based al Livingstone Subordinate Court or by the Chief Registrar as the evidence on record shows. Counsel went on to submit lhat it was further wrong and unconstitutional for the Acting Chief Registrar to interfere with the decision of the Petitioner as section 55 of the Suborclinate Courts Act, Chapter 28 provides that~ "l,'io action shall be brought against any Magistrate in respect of any act done or order made by him in good faith in the execution or supposed execution of the powers and jurisdiction vested in him." And that Article 122 (2) of the Constitution as amended adds that: "A person and a person holding a public office shall not interfere with the performance of judicial functions by a Judge or judicial officer.'' It was submitted that whereas the Chief Registrar told this Court that when misconduct is alleged against a judicial officer, the judicial officer is supposed to be charged and given an opportunit)• to exculpate himself before the matter is referred to the Chief Administrator for submission before the Judicial Service Commission, the Chief Registrar admitted in hjs evidence that no charges were leveled against the Petitioner when he was suspended. J24 (332) Counsel submitted that the procedure the Chief Registrar outlined to the Court was not followed ,vhen the Petitioner was suspended on 9 111 August, 2016. It was argued that the procedure outlined by the Chief Registrar was erroneous because the Judiciary's role when misconduct is alleged against a judicial officer is limited to submitting a complaint to the Judicial Complaints Commission. That when a recommendation is made by the Judicial Co1nplaints Commission regarding the disciplinary action to be taken against a magistrate, the recommendation goes to the JucticiaJ Service Commission th.rough the Registrar and not through the Chief Administrator unless the accused jucticiaJ officer is the Registrar. It was submitted that the Judicial Complaints Commission is the institution mandated by Article 236 of the Constitution as amended to enforce the Judicial Code of Conduct for Judges -and judicial ofJicers and to receive and hear complaints against a Judge or a judicial officer and to 1nake recommendations to the appropdate authority or institution for action. That in this case, the Petitioner being a judicial officer was only amenable to the J25 (333) jurisdiction of the Judicial Complaints Commission, which institution is mandated to receive and investigate any complaint of any alleged misconduct by a judicial officer. It was submitted that t1pon receipt of a complaint of alleged misconduct, the Judicial Complaints Commission contacts the judicial officer and asks him or her to respond to the complai.J.1-t. That after that the Judicial Complaints Commission will either dismiss the complaint or if it finds that there is need for further action, will call the complainant and the accused judicial officer for a hearing. That it is only after the hearing that the Judicial Complaints Commission will make a recommendation to !.he appropriate authority for either disciplinary action or other administrative action lo be taken against the judicial officer concerned. It was submitted that according to the Chief Registrar's evidence, the Petitioner was charged with m isconduc.t by a judfcial officer based on information which the Judiciary received to the effect that the Petitioner who was handling a matter concerning lhe Livingstone City Council was found at the law firm of the lawyer J26 - (334) who was representing the accused persons. The information, counsel argued, was inadmissible hearsay in terms of the case of Subramaniam v Public Prosecutor/I! wherein it was held that evidence of a statement made to a witness by a person who is nol himself called as a witness may or may not be hearsay. That it is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in a statement. And that it is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made. The case of Mutambo and 5 Others v The People('.?) was also cited in support wherein it was stated that evidence of a statement made in the presence of a Court witness is inadmissible hearsay if offered to prove the truth of what is contained in the statement but not if offered to prove that it was made. lt was submitted that in this case, U1e Respondent did not produce the letter of complaint by the Anti-Corruption Commission nor did the Respondent call either of the two prosecutors from the Anti-Corruption Commission who alleged that they found the J27 (335) Petitioner at KBF and Partners to testif'.)r that indeed they found the Petitioner at the law firm. Counsel submitted, 1n the alternative, that even if Major Masonga of KBF and Partners were a friend of the Petitioner or even if the Petitioner was found at the said law firm, that would not constitute misconduct. In support of this submission, counsel cited the case of John Kasanga and Wilmingtone Shayawa Kasempa v Ibrahim Mumba, Goodwin Yoram Mumba and Yousuf Ahmed Patel 131 wherein the Supreme Court, inter alia, observed that: "If Judges were to recuse themselves because a lawyer was known to them, people or society would not get justice. It was not the intention of the legislature in enacting a Judicial (Code of Conduct) Act that any relationship between a judicial officer and counsel representing a party should make a judicial officer disqualified from adjudicating in the matter." The case of Masiye Motels Limited v Rescu.e Shoulders and Estates Agency Limited'4 was also cited in support of the ' submission that a m~istrate cannot be charged with misconduct for being a friend of a lawyer representing a client before the judicial officer. In conclusion, counsel submitted that based on the evidence on record, the actions of the management of the Judiciary in J28 • (336) collusion with the Anti-Corruption Commission were 1n gross violation of the Constitution and the other law cited which stipulate how a judicial officer ought to be disciplined. That it follows that the purported suspension letter dated 9th August, 2016 written to tl1e Petitioner by the Chief Registrar of the Judiciary was illegal. That similarly, the purported subsequent charges leveled against the Petitioner by the Registrar-Subordinate Courts, her purported referral of the charge to the Chief Administrator for further action and the Chief Administrator's purported reference of the said charge to the Judicial Service Commission were illegal and unconstitutional as the said officers had no legal mandate to do what they did without a complaint being made against the Petitioner to the Judicial Complaints Commission by the Judiciary or the Anti-Corruption Commission. Further, that there were no findings of misconduct agHinst the Petitioner or any recommendation made by the Judicial Complaints Commission for clisciplinaJY action or other administrative action to be taken against the Petitioner. J29 • (337) Counsel thus prayed that the Petitioner be granted the remedies he seeks i.11 his petition. The Respondent filed written submissions in opposition to the petition on 3l•t August, 2018. The Respondent submitted th.al i.t1 the reliefs the Petitioner seeks, he had not identified any Article of the Constitution on which he based his prayer that the decision to suspend him was illegal and unconstitutional ab init'io. That notwithstanding that observation, the Respondent would proceed based on the provisions of Article 122 (1) and (2) of the Constitution as amended which appear to be the only substantive constitutional provisions cited i.t'l the header of the petition as the other provisions of the Constitu,tion which the Petitioner alleged were violated in this case fall within the ambit of the High Court's jurisdiction as determined by this Court in its Rt.iling to that effect dated 3Qll, October, 2017. After citing the provisions of Article 122 (1) and (2) of the Constitution as amended, counsel submitted that neither the petition nor the evidence led by the Petitioner during examination in chief properly demonstrated any contravention of Article 122. J30 (338) Counsel contended that Article 122 pertains to the independence of the Judiciary as a whole a.rm of government being free of interference or control by an extei·nal authority, such as the executive. That clause (2) of that Article prohibits any person from interfering with a judicial officer in the e,'{ecution of the judicial officer's functions. Counsel contended that it would be a misconstruction of Article 122 (2) of the Constitution to allege that the Acting Chief Registrar interfered with the Petitioner's performance of his judicial functions by suspending him for the serious allegations leveled against him. That the charge letter dated g,h June, 2017 clearly shows that the Petitioner was suspended for fraternizing with counsel representing an accused person in the case of The People v Milford Maambo and 2 Others cause number 2L/92/ l 6. It was argued that in cross examination, the Petitioner failed to remove himself from the premises of the law firm of KBF and Partners. That it was prudent for the manage1nent of the Judiciary to take action when this information was brought to their attention. J31 (339) It was contended that the Petitioner's conduct was contrary to the provisions of sections 6 (a) and 11 (1) of the Judicial (Code of Conduct) Act No. 13 of 1999 which prohibits a judicial officer from adjudicating in any proceedings in which his impart.ianty might be questioned due to the judicial officer's personal bias or preJ-udice concernm g a party , or a party's legal practitioner and from conducting activities outside the office which may bring the integrity, independence and impartiality of lhe Judiciary into disrepute. The case of John Kasanga and Wilmingtone Shayawa Kasempa v Ibrahim Mumba, Goodwin Yoram Mumba and Yousuf Ahmed Patellll was cited in which the Supreme Court held that it is not only actual bias but also the perception of bias that qualifies a judicial officer from being considered impartial in a matter. Counsel went on to submit that contrary to the impression created by the Petitioner in bis affidavit, this Court in its decision unequivocally held that once the DPP i11forms the Court of the intention to discontfr1ue criminal proceedings in pursuance of the powers conferred on that office by Article 180 (4) (c) of the Constitution as amended, a Court cannot refuse the e.xercisc of that J32 (340) power nor require the OPP to furnish reasons for such discontinuance. Counsel further submitted that this Colut must not attach a lot of weight to U1e Petitioner's testimony because he was insincere in his answers. That this was demonstrated in cross-examination when in answer to the question ''Can _vou confirm that you were not found at the law firm?" he said, "I can't remember''. The cases of Kenmuir v Hattingh151 and Haonga and Others v The People161 wherein it was held to the effect that a trial Court that has the advantage of seeing the witness can assess U1-eir credibility were cited in support. Learned counsel further submitted that although the Petitioner in his submissions took issue ·with the fact that he was charged by Hon. Musonda as the Registrar-Subordinate Courts when his supervisor was the Chief Resident Magistrate, that issue was not canvassed at trial nor wa5 it raised in the petition and other documents lodged before Court. That U1e issue cannot therefore, be raised in the submissions. Counsel thus w·ged us not to attach rulj' weight to that submission. J33 (341) It was also submitted that while the Petitioner had gone to great lengths to lay out the procedure on how disciplinary issues against the Petitioner were supposed to be handled, this Court is the wrong forum to determfr1e whether or not the correct disciplinary procedw-es were followed by the Judiciary. That the right Court to investigate the matter would be the Industrial Relations Division of the High Court. 1t was contended that in any event, even if this Court were to find that the disciplinary procedures were not followed, that would not amount to a breach of Article 122 (1) and (2) of tJ1e Constitution as amended. In support of that submission, counsel called i.n aid the case of National Breweries Limited v Phillip Mwenya<7l wherein the Supreme Court held that: "(i) Where an employee bas committed an offence for which he can be dismissed, no injustice arises for failure to comply with the procedure stipulated in the contract and such an employee has no claim on that ground for wrongful dismissal or a declaration that the dismissal is a nullity. (ii) Having been properly dismissed, the Respondent cannot be deemed to have been retired and be is not entitled to any retirement benefits." J 34 j342) Learned counsel contended in response to the Petitioner's assertion that the main charge which was leveled against him was based on hearsay because the complaint made by the Anti Corruption Commission was not JJroduced in Court, that the evidence on record shows that the clisciplinary proceedings against the Petitioner are ongoing. Further, that at the trial of this matter, the Petitioner did not complain about the evidence of the Respondent's witness or even perforate it as hearsay. That even when Hon. Kafunda deposed to the affidavit in opposition stating the reason the Petitioner was suspended, the Petitioner clid not file an affidavit in reply. It was argued that it was therefore too late in the day for the Petitioner to argue that the allegation that he was fraternizing with counsel for one of the accused persons was hearsay. In conclusion learned counsel submitted that it is clear from the evidence on record and from the submissions herein that the reliefs sought by the Petitioner before this Court are untenable. Counsel prayed that the matter be dismissed with costs to the Respondent. J35 (343) We have considered the contents of the petition, the answer. the affidavits in support of and in opposition to the petition as well as the evidence adduced by the respective parties. We have also considered the submissions by the respective parties and the authorities cited. In the main, the Petitioner seeks a declaration thal the decision to suspend him from office by the Acting Chief Registrar of the Judiciary on 9th August, 2016 was illegaJ and w1constitut.ional and must therefore be expunged from his employment record. In support of this claim, the Petitioner asserted in his petition and in his oral evidence that his suspension by the Acting Chief Registrar, which suspension was conveyed to him by letter dated 9th Au,gust, 2016 was caused by the decision he took to refer, to the Constitutional Court, the question whether the OPP still possesses unfettered powers under Article 180 (4) (c) and (7) of the Constitution as amended to enter a nolTe prosequi in criminaJ proceedings without advancing reasons for doing so. The Petitioner contended that the suspension having arisen as a result of his decision to refer the matter before him to the ConstitutionaJ Cow·t J36 (344) for the interpretation of Article 180 (4) (c) and (7) in the course of e.~ercising his judicial functions was done in violation of Article 122 (1) and (2) of the Constitution which provide for the independence of the Judiciary+ The Respondent, on the other hand, in his answer denied the assertion that the Petitioner was suspended for referring tJ1e maner lo the Constitutional Court for interpretation. The Respondent contended that the Petitioner was suspended based on a complaint that was made to the Judiciary by the Anti-Corruption Commission that the Petitioner had been fraternizing with the defence lawyer who was representing an accused person in the case of The People v Milford Maambo and 2 Others while the matter was active before him thereby compromising his impru·tiality in the proceedings. It was the Respondent's position U1at the Petitioner's refusal to give effect to the nolle prosequi entered by the State was considered as evidence of the misconduct complained of by the Anti-Corruption Co1nn1ission. The Respondent alleged that the Petitioner's behaviour prio1· to his refusal to enter the no/le prosequi in the case was unbecoming J37 (345) of a judjcial officer and therefore wa1Tanted the institution of disciplinary action against him. The main issue we have to determine in this petition is whether the suspension of the Petitioner from office by the Acting Chief Registrar contravened Article 122 (2) of the Constitution and was illegal and unconstitutional. In determining the issue, we begin by examining the provisions of Article 122 (1) and (2) of the Constitution which read, (1) In the exercise of the judicial authority, the Judiciary shall be subject only to this Constitution and the law and not be subject to the control or direction of a person or an authority. (2) A person and a persom holding a public oflice shall not interfere with the performance of a judicial function by a Judge or judicial officer. Section 266 of the Constitution as amended defines "judicial officerM as mcluding a magistrate, local court magistrate, registrru and such officers as prescribed. The provisions of Article 122 (1) and [2) which are set out above are clear and unambiguous in their terms. Article 122 tl) provides for the independence of the Judiciary by stipulating in clear terms that the Judiciary shall not be subject to the control or J38 (346) direction of any person or authority in its e,"'Cercise of judicial authority. The Judiciary is made subject only to the Constitution and the law in the exercise of judicial authority. Article 122 (2) of the Constitution goes further to prohibit a person, including a person holding a public office, from interfering with the perfonnance or a judicial function by a Judge or judicial officer. The importance of enshrining judicial independence in the Constitution is that doing so guarantees that Judges and judicial officers are free to decide cases impartially, in accordance with the law and the evidence before them, without fear of interference. control or improper influence fron1 any person or authority. To that effect, the learned authors of Halsbury's Laws of England, Fifth Edition, Volume 20 state in paragraph 130 on page 136 as follows: "The independence of the judiciary is essential to the rule of law and to the continuance of its own authority and legitimacy. lt involves the impartiality, and appearance of impartiality, ofj udges; and the freedom of judges from political and other pressutes in their determination of the law and adjudication of disputes." J 39 (347) The learned au thors, Michael Allen and Brian Thompson, 1n their book entitled Cases and Materials on Constitutional and Administrative Law, Seventh edition, at page 193 also state that: "The maintenance of the independence of the judiciary is essential if the rule of law is to be respected. .. independenoe requires that judges must be free to interpret and apply the law as they see fit subject only to correction on appeal to a higlier court." The learned al.lthors Michael Allen avd Brian Thompson in the same book go on to quote Lord Justice Denning, as he then was, who in his presidential address 1-0 the Holdsworth Club in 1950 stated as follows: ''No member of the Govetwnent, no Member of Parliament and no official of any government department bas any right whatever to direct or influence or to interfeTe with the decisions of any of the judges. It is the sure knowledge of this that gives the people their confidence in judges ... " lt will be observed from the foregoing that independence o! the Judiciary entails that in the decision-making process, judges and judicial officers should have the freedom to decide cases impartially, in accordance with their interpretation of the law and the facts. They should be able to act without any restriction or improper influence. They should also act without fear of reprisals J40 (348) for decisions and orders they 1nake m the course of performing judicial functions. ln determining the issue before us, we have e,xamined the evidence regarding tl1e circumstances in which the Petitioner was suspended with the above guidance in mind. As a starting point, we have examined the contents of the suspension letter dated 9th August, 2016, which letter is at the centre of this action. The letter reads as follows: RHC/ 3/1 August, 2016 91h Mr, Benjamin Mwelwa Magistrate Class 11 Living-Stone Subordinate Court P.O. Box 60110 LIVINGSTONE RE: SUSPENSION FROM DUTY YOURSELF "It has come to the attention of manageme.nt that. you on 200, July, 2016 refused to give effect. to a Nolle Prosequi entered by the Director of Public Prosecutions in the case of The People v Milford Maambo, Ziwa Malilo and Chanda Cbabala. You instead ordered that the matter be stayed pending determination of Constitutional issues by the Constitutional Court regarding the entry of a Nolle Prosequt, a position in brazen disregard of c.lear and elementary provision.s of the law regarding the powe.r of the Director of Public Prosecutions to discontinue cases before the Court. Following this development, management bas deemed it necessary that disciplinazy proceedings be instituted against you in relation to your competence or any other facet of misconduct that may be J 41 (349) revealed by your conduct of the case in issue or in relation to your dispensation of justice us a magistrate. You will, in due course, be advised of the specific charges aga,inst you by your supervisor. In the meantime, J find it necessary that you be placed on immediate suspension pending the outcome of the disciplinary process. During your suspension, the following conditions will apply: (a) you will be on half salary. (b) you will not be allowed to leave Zambia without permission. Charles Kafunda ACTING CHIEF REGISTRAR OF THE JUDICIARY AND DIRECTOR OF COURT OPERATIONS" (Emphasis added). The suspension letter speaks for itself. It is evident from the first paragraph of the letter set out above that the genesis of the suspension was the Petitioner's alleged refusal to give effect to the rzolle prosequi intended to ruscontinue the criminal proceeclings in the Milford Maambo case which the Petitioner was presiding over and his decision to stay the criminal proceedings whilst the matter was referred to the Constitutional Court. Jn paragraph two of the letter, the Acting Chief Registrar clearly stated that in view of that development, that is the alleged refusal of the Petitioner to give effect to the n.olle prosequi and his further decision to stay the proceedings until lhe matter was determined by the Constitutional J42 ' (350) Court, the Judiciary management had decided to jnstitute disciplinary proceedings against the Petitioner. The purpose of the disciplinary action was to exanune the Petilioner's competence or any other misconduct which might be revealed by the Petitioner's conduct of the case in issue or regarding his dispensation of justice as a magistrate. Although the Chief Registrar denied that the main reason the Petitioner was suspended was because he referred the matt.er of the nolle prosequi to the Constitutional Court, his letter made it clear that that was in fact the case. This is evidenced by his scathing remarks that the decision taken by the Petitioner with regard to Lhe no/le prosequi was, to use his words, in "brazen disrega,·d of clear and elementary prouisions of the law regarding the power of the Director of Public Prosecutions to discontinue cases before the Court" These comments were unwarranted as the Petitioner in his ruling dated 20th July, 2016 gave clear reasons why he had referred the matter to the Constitutional Court and stayed the criminal proceedings before him. The stay was not indefinite, It was pending the determination of the matter by the J43 (351) Constitutional Court. As we observed earlier in this judgment, the Petitioner was entitled to make a decision on that matter according to his interpretation of the law and the facts. For the Acting Chief Registrar to have based the suspension of the Petitioner on his handling of the issue of the nolle prosequi which was presented in criminal proceedings before him was to have directly int.erfered with the performance of the Petitioner's judicial functions. It is paradoxical that the Acting Chief Registrar who is a judicial officer in the Judicia1:v which the provisions of Article 122 (1) and (2) protect by enshrining non-interference with the performance of its judicial functions, would breach the protective provisions by taking disciplinary action against another judicial officer foT a decision taken in the course of performing his judicial functions as mandated by the Constitution. Further, although the Respondent stated that the Petitioner was suspended for his unethical behaviour involving his alleged fraternizing with defence counse1 who was representing an accused person in the case of The People v Milford Maambo and 2 Others which was before him, the Respondent has not cited any J 44 (352) law which empo\.vered the Act.mg Chief Registrar to suspend the Petitioner from office. The Judiciary Administration Act No. 23 of 2016 which, inter aJia. relates to the administration of the Judiciary and the appointment of judicial officers, stipulates the ft.mctions of the Chief Registrar in section 8 (2) as follows~ "(2) The Chief Registrar shall- (a) facilitate the performance of judicial functions; (b) coordinate judicial matters; (c) synchronise and produce a comprehensive performance report of the judicial functions; (d) provide the link between the Judiciary and the Commission on the appointment, proinotion and disciplinary matters of judicial officers; (e) be the Secretary of the Commission; and (f) advise the Court on matters relating to the judicial profession." None of the functions of the Chief Registrar set out above empower the Chier Registrar to suspend ajudiciaJ officer. Section 15 of the Act vests power to discipline persons appointed under the Act in the Judicial Service Cominission. It provides as follows: J 45 (353) "15 (1) The Commission shall exercise its powers with respect to the dismissal, disciplinary action or termination of appointment of a person appointed under this Act in accordance with regulations made by the Commission." Au examination of the Judicial Service Commission Regulations, 1998 also reveals that the Regulations do not vest any power in the Chief Registrar to suspend a judicial officer. As the law does not vest any power to suspend a judicial m officer the Chief Registrar, it follows that his suspension of the Petitioner from of.flee lacked legal backing and ,vas therefore illegal. Further, section 55 of the Subordinate Courts Act, Chapter 28 of the Laws of Zambia expressly protects magistrar.es from actions arising from an act done or order made by the magistrate in t.be execution or purported execution of their powers. Section 55 reads; "No action shall be brought against any magistr~te in respect of any act done or order made by him in good faith in the execution of the powers and jurisdiction vested in him." In view of this clear provision of the law, there was no justification whatsoever for t11e Acting Chief Registrar to have taken the unwan-a11ted and unprecedented decision to suspend the Petitioner based on an order he made in the execution of the J46 1354) jurisdiction and powers vested in him by Article 128 (2) of t11e Constitution as amended to refer a question relating to the Constitution to the Constitutional Court. As t11e immediate reason for the Petitioner's suspension ,vas his alleged refusal to give effect to t11e nolle prosequi in the matter before him, it follows that the suspension was done in clear contravention of Article 122 (2) of the Constitution which prohibits a person holding a public office or any oilier person from interfering with a Judge or a jurucial officer in the performance of their jurucial functions. Based on the evidence before us, we find as a fact that the Petitioner's suspension was based on t11e roruu1er in which he, as trial magistrate, handled t11e nolle prosequi in criminal. proceedings in the Milford Maambo case which he presided over. We therefore hold that the suspension was illegal. and unconstitutional as it contravened Article 122 (2) of the Constitution. We therefore grant the declaration as prayed and order that the suspension meted out to the Petitioner by the letter dated 9ili August, 2016 be ex-punged from the Petitioner's employment records. J 47 (355) Having said that, we note from the evidence on record that, on g,h June, 2017 the Petitioner was charged by the Registrar Subordinate Courts with the offence of misconduct by a judicial officer. '!'he charge letter which is on pages 262 and 263 of the record of proceedings states that the charge was based on a complaint made against the Petitioner by the Anti-Corruption Commission to the effect that the Petitioner closely associated with Major Masonga of KBF and Partners, a law firm which was representing one of the accused persons in a case involving a Mayor, Tow11 Clerk and Councillor at the Livingstone City Council. The case was being prosecuted by the Anti-Corruption Commission before the Petitioner. It was alleged that on 19<h July 2016, the two prosecutors from the Anti-Corruption Commission found the Petitioner with defence counsel at the offices of Messrs KBF and Partners. This charge of misconduct by a judicial officer, although related to the Milford Maambo case, is a different charge and is unrelated to the suspension of 9Lh Au,gust, 2016 relating to the entry of the no/le prosequi. The charge is therefore not the subject of this petition. J48 (356) \Ve say so because in his petition filed on 19Lh September, 2017 the Petitioner only challenged the illegality and constitutionality of his suspension under the letter dated August, 2016. He did 9 ih not challenge the charge of misconduct by a judicial officer leveled against him under the letter dated g,h June, 2017 although he alluded to it in h.is affidavit verifying facts. The charge of misconduct by a judicial officer was subsequently endorsed by the Chief Administrator i.n line with the provisions of regulation 34 of the Judicial Service Commission Regulations. 1998 in her Jetter to the Petitioner dated 22nd September, 2017. In that letter, the Petitioner was notified of his suspension from office pending the determination of the charge of misconduct by a judicial officer by the Judicial Service Commission. That being the case, this judgment does not affect the proceedings which are currently on-going before the Judicial Service Commission relating to the charge of miscond·uct by a judicial officer or the suspension that was meted out against the Petitioner by the Chief Administrator effective 22nc1 September, J49 (357) 2017. We have accordingly not addressed any of the arguments relating to the charge of misconduct by a judicial officer. Turning back to the matter before us, the Petitioner has claimed for both general and punitive damages for the illegal suspension and embarrassment suffered at the hands of the Acting Chief Registrar. He also seeks damages for the damage caused to his professional reputation, odium, anguish and torture caused to him during the period of suspension. We shall consider the Petitioner's claim for general damages for illegal suspension, mental torture and anguish and for damage to his professional reputation and odium in that order. In considering the claim for general damages regarding the illegal suspension, we note that the facts of this case are that although the Petitioner was suspended from office in rather unprecedented circumstances, he was not dismissed from employment. Rather, following rus suspension, he was placed on half salary. lt therefore follows that he should be paid the half salary that was withheld from him during lhe period of suspension following our decision that the suspension was illegal. The suspension period was from J50 (358) 9th August, 2016 to 2 151 September, 2017. We say so because according to the suspension letter dated 22°d September. 2017 which was written to the Petitioner by the Chief Administrator, the Petitioner was suspended from office effective 22nd September, 2017 for the offence of misconduct by a judicial officer. We accordin.gly order that the Petitioner be paid the hall salary withheld from 9th August, 2016 to 21•' September, 2017. ln awarding him general damages for the illegal suspension meted out to him by the Acting Chief Registrar by letter dated 90, August. 2016, we shall take that fact into consideration. As regards the claim for damages for anguish and torture caused during the period of suspension, we are alive to the fact that damages for mental torture may be awarded in an appropriate case. In the persuasive case of Attorney General v Mpundu1s1 which was cited by the Supreme Court in the later case of Cobbett-Tribe v Zambia Publishing Company Limitedl91 it was , held that damages for mental distress and inconvenience may be recovered for breach of contract. In that case, Silt.mgwe CJ, as he then was, stated as follows; J51 (359) "In this case, it is quite clear that the respondent did suffer some mental distress and inconvenience as a result of the wrongful suspension fo.r a prolonged period of time brought about by the appellant. In our opinion, the correct measu.re of damages to which the respondent was entitled, taking into account the fact that the breach of contract in bis case did not amount to termination of contract, is K2,000,00". u, Similarly, the present case, it is evident that the Petitioner did suffer some mental distress and inconvenience as a result of th.e illegal suspension for a prolonged period of time caused by lhe Respondent's servant, the Acting Chief Registrar. As the suspension did not result in the termination of his employment, we award the Petitioner the sum of J<] 0,000.00 as general damages for illegal suspension and fo1· mental torture and anguish. Turning to the claim for damages for damage to his professional reputation and odium caused lo him during the period of suspension, we note that the claim for damages 1.1nder th.is head suggests that the Petitioner was defamed and suffered damage lo his professional reputation as a result of his suspension. However, the Petitioner did not adduce any evidence before us to show that the Respondent publicized his suspension J52 (360) to any other person and therefore caused damage to his professional reputab.on. As regards the allegation that the Petitioner suffered odium as a result of the suspension, there was no evidence that he was subjected to hatred and contempt as a result of his suspension from office, Black's Law Dictionary, Tenth edition, defines the word "odium" as: "the quality, state, or condition of being hated; a state of disgrace, usually resulting from detestable conduct; or hatred or strong aversion accompanied by loathing or contempt." It is settled that allegations of that nature must be proved to the requisite standard as the party who makes the allegation bears the burden of proof. In the absence of any evidence that the Petitioner suffered damage to his professional reputation or that he was subjected to odium as a result of the suspension, we fmd no basis to award him damages under this head. We shall now consider the claim for punitive damages. Punitive damages or exemplary damages, as they are commonly known, can be awarded where the conduct of the defendant merits J53 • (361) punishment, which is only considered to be so where the defendant's action is wanton, as where it discloses fraud, malice, violence, cruelty, insolence, or the like, or, as it is sometimes put, where he acts in contumelious disregard of the plaintiffs rights as was held in the case of Corbett-Tribe v Zambia Publishing Company Limited<9 l, The learned authors of Halsbury's Laws of England, Fourth edition, volume 12, at page 416, in paragraph 1112, regarding exemplary or punitive damages, state that; In certain circumstances the court may award more than the normal measure of damages, by taking into account the defendant's motives or conduct, and the damages may be "aggravated damages", which are compensatory, or "exemplary damages'', which are punitive." In Attorney-General v Kapwepwel10 l Doyle CJ, as he then was, stated that: "Exemplary damages ue given for the purpose of bringing home to a defendant the error of his ways. In the case of Government it is impossible to award a sum that would hurt the Go'lternment pocket. The use of the award of exemplary damages is to induce Government to discipline it.s servants whose action has resulted In loss to Government, and so to serve as a deterrent for future cases." J 54 • (362) On the facts of the case before us, we do consider that this is a fit case to award the Petitioner exemplary damages in order to bring home to the Respondent the error of his senrant's ways. The conduct of the Acting Chief Registrar was totally unacceptable as he acted in contumelious disregard of the Petitioner's rights, so to speak. We say so because the Chief Registrar is a judicial officer and is aware of the provisions of Article 122 ( 1) and (2) of the Constitution as amended which protect the independence of the Judiciary and prohibit interference with fhe perfonnance of a judicial fw1ction by a Judge or judicial officer. He is also aware of the provisions of section 55 of the Subordinate Courts Act, Cap. 28 which clearly prohibits the taking of an action against a magistrate for an order made in the course of performing judicial functions. Further, at the time the Acting Chief Registrar suspended the Petitioner from office on 9'"' August, 2016 he was aware of the reason why the Petitioner referred the matter to the Constitutional Court because tl1e Petitioner had delivered a ruling on the matter on 20th July. 2016. That notwithstanding, the Acting Chief Registrar in wanton disregard of the status of the matter J SS .. t (363) proceeded to suspend the Petitioner from office because of a decision he made in the exercise of his judicial functions without leveling any charges against him. As though that were not enough, the Chief Registrar has to date not charged the Petitioner with any offence regarding his reference of the constitutional question regarding the power of the OPP to enter a nolle prosequi in criminal proceedings that arose in the Milford Maambo case to the Constitutional Court for determination. By ignoring the fact that the Petitioner was e.xercising his ju.dicial functions when he referred the matter to the Constitutional Court, the Acting Chief Registrar failed to protect the Petitioner's independence as ajudicial officer who was entitled to determine cases according to his interpretation of the law. In assessing damages under this head we have considered earlier cases in which e.icernplary damages were awarded by other courts. In the case of Attorney-General v. Kapwepwe(10l the Respondent was awarded KlS,000,000.00 at that time as exemplary damages. In the case of Patrick Fungamwango and Zambia Daily Mail v Mundia Nalishebo<1 t1 the Respondent was J 56 f I f , 1364) also awarded the sum of Kl5,000,000.00 at that time. Given the facts of this case, we av.>ard the Petitioner K15,000.00 as exemplary damages. The sum of Kl0,000.00 for general damages and the sum of Kl 5,000.00 for exemplary damages shaU attract interest at the average of the short term deposit rate from the date of the petition until judgment and thereafter until payment, interest shall accrue at 6o/o per annum. We. therefore, enter judgment for the Petitioner agajnst the Respondent in respect of the Petitioner's claims which have succeeded. Costs will follow the event and are to be agreed and truced in default of agreement. ~ - ... .......... ........ ...... ·~· .............. . ' '.' ' A.M. Sitali, CONSTITUTIONAL COURT JUDGE ~ ............... ................... . IvLS. Mulenga, E. Mulembe, CONSTITUTIONAL COURT JUDGE CONSTITUTI A OURT JUDGE ............... ~. ..................... . M .M. Munalula, M. !'vlusal CONSTITUTIONAL COURT JUDGE CONSTITUTIONAL J57