Solicitor General Abraham Mwansa has asked the Constitutional Court to set aside the subpoena against former chief justice Annel Silungwe obtained by Mutembo Nchito on technical grounds.
This is in a matter in which Mutembo is challenging his removal from the Office of the Director of Public Prosecutions on grounds of biasness and unreasonableness.
On November 28, Mutembo obtained a subpoena against justice Silungwe in order for him to demonstrate the injustices surrounding his removal from the DPP’s office.
He also obtained subpoenas against justices Matthew Zulu and Charles Zulu who were secretary and deputy secretary of the now defunct tribunal respectively.
But in a notice filed to set aside the subpoenas against the trio, the Solicitor General argued that the former DPP issued subpoenas in the Constitutional Court registry without obtaining leave from the court as required by law.
“My Lord, Order 1 Rule 2 of the Constitutional Court rules is very clear on the practice and procedure to be followed where your own act and rules do not provide, this being the practice and procedure in the Court of Appeal in England. Order 38, Rule 19 Sub Rule 3 expressly states that leave of the court is required before a subpoena can issue for attendants in the courts of appeal. We submit that the petitioner ought to have sought leave form this honorable court before causing the subpoenas to be issued out of the Constitutional Court Registry,” read the notice in part.
“Supreme Court has had an occasion to determine where a mode of commencement of an action is provided by statutes, litigants have no choice but to follow the prescribed mode of commencement of an action. Similarly, where this statute provides a procedure of issuing a subpoena, litigants have no choice but to follow that procedure…we submit that the petitioner has wrongly caused to be issued the subpoenas under this cause as the Petitioner did not obtain leave from the court as required. Accordingly, we pray that this honorable court set aside the subpoenas issued for irregularity.”
The matter comes up on January 15, 2018 for hearing.