High Court rules that LAZ did not discriminate against Makebi Zulu, Kabwe and Mwewa
By Staff Reporter
THE Lusaka High Court has dismissed for lack of merit a case in which Eastern Province minister Makebi Zulu and two other lawyers had petitioned the court over the Law Association of Zambia’s decision to summon them for criticising the appointment of lawyers to represent State Counsel Nchima Nchito.
Nchima was at the time appearing in the Subordinate Court accused of personating as Post Newspapers Limited (in liquidation) lawyer by former employee Abel Mboozi.
Mboozi later withdrew the complaint against Nchima Nchito and the case was discontinued.
In March 2017, Zulu who is also Malambo PF member of parliament, lawyer Hobday Kabwe and Anna Mwitwa Mwewa sued the Law Association of Zambia March 24, 2017 and asked the court to declare that Rule 17 of the Legal Practitioners Practice Rules of 2002 as unconstitutional, null and void as it forbids them from enjoying their right to freedom of expression if there was need to comment on a matter of public interest.
They also sought the court’s declaration that Rule 17 (5) and (6) of the Legal Practitioners’ Practice Rules of 2002 in it’s current form violates their right of freedom of expression as prescribed by Article 23 of the Constitution.
The petitioners also wanted the court to declare that they be allowed to enjoy their fundamental right to protection from discrimination in their exercise of their alienable right to freedom of expression, among other reliefs.
Zulu, Kabwe and Mwewa’s grievance in this suit was embedded in an announcement that was made by LAZ sometime in March 2017 that it would offer free legal services to Nchima who was charged with impersonation.
According to the petitioners, the decision was unpopular amongst the members of the association and themselves.
This prompted them to criticise the LAZ decision in various electronic and print media.
They were quoted to have stated that LAZ had no mandate to represent its members’ individual interests.
LAZ, as a regulator of lawyers, was riled by their statements and the Legal Practitioners Committee decided to summon them to a disciplinary hearing for offending Rules 17 (5) and (6) of the Legal Practitioners (Practice) Rules.
At the appointed day of hearing, Zulu, Kabwe and Mwewa did not appear at LAZ offices opting to sue, on allegations that their constitutional rights under Articles 28, 11, 20 and 23 had been violated.
But according to a judgement dated June 24, High Court judge Mapani Kawimbe dismissed the allegations that Zulu, Kabwe and Mwewa were discriminated when they were summoned to appear before the LPC for lacking merit.
She said for the court to be satisfied that the petitioners were discriminated, they must have proved that LAZ treated them differently from other members of the association and without good reason.
“I do however, find that the LAZ Rules permit the Legal Practitioners Committee (LPC) to hold disciplinary hearings and in so doing may issue summons. This, in my view does not amount to discrimination and cannot be a basis for assailing the LPC statutory functions,” she said.
Judge Kawimbe agreed with LAZ that any member who is perceived to breach the rules of the association can be subjected to an LPC disciplinary hearing.
“Therefore, all members of LAZ including the petitioners are bound by this rule,” she said.
The judge added that there was nothing extraordinary in the petitioners circumstances that would require her to make a finding of discrimination.
“Accordingly, the allegations of discrimination lack merit and is accordingly dismissed,” judge Kawimbe said.
And the judge said the only body that can establish whether the petitioners offended the Publicity Rules was the LPC at a disciplinary hearing yet to be held and where evidence will be heard and analyzed.
“The court finds that it cannot determine whether the alleged statements offended the LPC Publicity Rules. It cannot equally determine whether the publicity rules offend Articles 11,20 and 23 of the Constitution, as any attempt will amount to prejudicing the outcome of the LPC disciplinary hearing,” she said.
Judge Kawimbe further said the petitioners belong to a regulated association and the appropriate forum for resolving their grievances, in the court’s opinion, lies within the procedures created by LAZ Rules instead of court.
She ordered therefore, that Rule 17 (5) and 6) of the LPC Practice Rules of 2002 do not violate the petitioners right to freedom of expression and right to protection from discrimination as enshrined in the Constitution.
