Supreme Court of Appeal Judge Dunstain Mwaungulu has hit back at a High Court Judge for gagging him from commenting on court cases on Facebook.
Mwaungulu took to Facebook yesterday to bash Judge Mike Tembo’s ruling.
In March, after the Director of Public Prosecutions (DPP) was granted a preservation order to seize Norman Chisale’s assets, Mwaungulu wondered on Facebook if the DPP could institute civil proceedings.
His comments did not go well with Judge Tembo who noted that Mwaungulu also used to comment on the presidential elections case on Facebook.
“This Court wishes to politely excoriate Justice Mwaungulu for his habit of commenting on live court matters in this Court which have the potential to end up in the Supreme Court of Appeal where he currently sits. The habit is untenable, objectionable and unbecoming to say the least.
“Commenting on ongoing matters which are before the High Court on Facebook is, clearly on the face of it and in the humble view of this Court, objectionable and unbecoming to the proper discharge of the duties of the Justice of Appeal.
“In the foregoing circumstances, this Court would like to appeal to Justice Mwaungulu to cease and desist from making public comments on Facebook as he did in the present matter since his comments run counter to his duties as a sitting member of the Supreme Court of Appeal given the potential that matters on which he comments as they are before this Court may later come for hearing before the Supreme Court of Appeal,” said Tembo.
But Mwaungulu defended himself yesterday saying he has never commented on pending cases. He argued that the preservation order had already been granted when he commented on it.
“A judgment or order of the High Court, once delivered, is law like any other. It still remains – a precedent – bonding and persuasive. It is not, for precedent, not pending because there is an appeal. The Supreme Court, the High Court and subordinate courts can cite it. As law, anyone, including judges can comment on it. Judges can read it, cite it and comment on it in court and outside court.
“I did not comment on a pending case but the law which the judgment was. But my question was on the Act which provides that these proceedings are civil. And that is all I asked. The comments were an answer to a very neutral question in the Act – not pending case,” he said.
He also argued that his question about whether the DPP can institute civil proceedings was “so important” such that lawyers for Chisale raised it before the venerable judge.
“The counsel were so profound and thorough that the matter has been resolved. Actually, I should be thanked for raising the question,” said Mwaungulu.
He then faulted Tembo for punishing him without hearing from him. According to Mwaungulu, the court used evidence in its head from an external source to decide a case and the evidence was not properly before the Court.
“I am going to have all he (Tembo) said expunged from the record,” said Mwaungulu.