LUSAKA Chief Resident Magistrate Davies Chimbwili has formally requested the Constitutional Court to remove him as a respondent in a lawsuit filed by former Lumezi Member of Parliament Munir Zulu.
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Magistrate Chimbwili argues that as a judicial officer, he was simply carrying out his official duties when Zulu was charged with libel in his court.
In an affidavit submitted to the Constitutional Court, Magistrate Chimbwili, through acting state advocate Comfort Mulenga, asserted that a sitting magistrate cannot be sued personally for actions undertaken in their judicial capacity.
He contended that the appropriate entity to sue in such matters is the Attorney General, who serves as the government’s chief legal advisor and representative in civil proceedings involving the State.
This development follows Zulu’s petition to the Constitutional Court challenging the legality of the libel proceedings against him in the subordinate court.
Zulu claimed that the alleged offense occurred within the precincts of the National Assembly, where he is entitled to parliamentary immunity and privileges.
The former Lumezi ML’s petition cited constitutional provisions, specifically sections 76(1) and (2) as read with Sections 3 and 4 of the Constitution, which guarantees Members of Parliament freedom of speech and debate within the National Assembly, stating that this freedom should not be questioned in any court or tribunal.
In his initial lawsuit, Zulu named the Attorney General, Mulilo Kabesha, as the first respondent, the Director of Public Prosecutions, Gilbert Phiri, as the second respondent, and Magistrate Davies Chimbwili in his official capacity as the third respondent.
Magistrate Chimbwili’s affidavit argues that he was improperly joined to the proceeding.
“I have perused the petition and affidavit verifying facts herein and I verily believe that the third respondent is a judicial officer who has been sued for performing judicial functions.”
“That the correct party to sue is the Attorney General who is the Chief Legal Adviser to the Government and a representative of the Government in civil proceedings to which the Government is a party,” he submitted.
Magistrate Chimbwili expressed his belief that Zulu would not be prejudiced if he were removed from the case, as the reliefs sought could still be pursued against the Attorney General.
He cited Order V Rule 4 (A) of the Constitutional Court Rules Statutory Instrument No. 37 of 2016, which grants the court the authority to strike out improperly joined parties at any stage of the proceedings.
“It is our submissions that the rule cited above gives this honourable court power to strike a party improperly joined to the proceedings,” Magistrate Chimbwili’s submission read.
He reiterated that the Attorney General is the correct legal representative in matters involving government agents acting in their official capacity, citing Section 4(5) of the State Proceedings Act.
“It is patent from the above provision of the law that the third respondent is a judicial officer. It follows therefore that he is a wrong party in these proceedings and must consequently be struck out from these proceedings,” the document filed in, revealed.
Constitutional Court Judge Maria Kawimbe is scheduled to hear this matter on May 7, 2025.
By Lucy Phiri
Kalemba April 24, 2025
