It is peculiar and unusual for a court to ask a litigant to justify reliefs he is seeking before hearing evidence , former Director of Public Prosecutions Mutembo Nchito told Constitution Court judges yesterday.
This is in a matter in which Mutembo is challenging his unlawful dismissal from the Office of the DPP.
Mutembo is seeking 8 reliefs in total but when the matter came up for hearing on November 27, 2017, the ConCourt raised a question challenging three of the reliefs, two of which relate to former chief justices.
“Whether the reliefs that are being sought under paragraph 31 in particular sub-paragraph iv, v and vi of the Amended Petition are properly before the Constitutional Court and proceedings that have been commenced by the petition?” asked the Concourt in relation to the following reliefs;
“iv) that further and in the alternative the Report of the Tribunal Set up to probe the Petitioner be declared null and void on account of the uncontroverted evidence of bias and conflict of interest on the part of Justices Sakala and Ngulube, v) That it is unconstitutional and therefore unreasonable for the Tribunal to recommend that the Petitioner be removed for entering a nolle prosequi when under the Constitution, the power of the Director of Public Prosecutions to enter a nolle prosequi cannot be questioned and could nonetheless not be questioned in the circumstances of this case and vi) that it is unreasonable for the Tribunal to find the Petitioner liable of having allegedly walked out of Justice Mutuna’s court when in actual fact, the Petitioner sought leave which was granted by the judge and in any case, the Tribunal heard evidence that rendered the judge’s conduct of the matter a nullity.”
Defending these reliefs, Mutembo observed that it was strange that the ConCourt singled out three out of 8 reliefs sought when they were all similar in nature.
“I did try to ask myself that could it be that the court is suggesting that you cannot seek a declaratory judgment in a petition. I had a problem because 1,2,3,7 and 8 are all declaratory orders being sought and the court did not have a problem with them so the issue then is not declaratory judgements as such, what then is the problem? Because the rules are there and require no interpretation I don’t know what to except as a litigant, I feel like wherever one goes the door closes,” Mutembo said.
“I have had the Supreme Court of this country change the jurisprudence on preliminary points of jurisdiction saying they should be raised at the end of the hearing of the matter. No other jurisdiction in this world practices like that. You raise the issue of jurisdiction when you start. I came to this court saying I need discovery. This document that has removed me from office, can I be given a copy? This court has powers to order discovery, I was told a single judge can’t order discovery, you have to go to a full court. But the full court may finish the matter, when will I have that report to be able to challenge it?”
He asked the court to specify what was wrong with the reliefs he was seeking.
“Now I am being told, there is something wrong with the reliefs, what is wrong with the reliefs? We are lawyers, what is wrong? I need to understand so that I can address my mind to the reasons. As I have submitted, the power to determine the reliefs is not in my hands. It is for this court.”
He explained that it was not his intention to embarrass the former chief justices adding that he had tried to protect them but the State insisted that he proceed.
“The particular paragraphs that the court has raised concerns on have to do with very powerful former judicial officers whom one has to respect. And in fact, the record before this court will show that when we were before the tribunal, I pleaded with the state. ‘Let’s protect these learned men of our country, they are former chief justices’, I said ‘can you sanitise the complaints against me so that where they have apparent problems let’s take them out so that I don’t have to complain against them we agreed and I thought that we had an understanding. When we appeared before the tribunal, the state changed…It was not my intention to embarrass these men but what they have done is wrong,” Mutembo said.
At this point, judge Martin Musaluke, who sat with judge Mungeni Mulenga, judge Enoch Mulembe, judge Margaret Munalula and judge Palan Mulonda wondered how his arguments on the former chief justices tied with the question asked.
But Mutembo explained that the question framed by the court had to do with the retired Chief Justices which forced him to discuss them.
“I am making my argument on why I think that the reliefs sought are pertinent. And I am saying that in particular, relief number 4, which the court has asked me to discuss, deals with legal luminaries people that we respect, Justice Sakala, Justice Ngulube, and I am saying that I have been left with no choice but to seek that relief because my attempts at the Tribunal stage to come to an understanding that remove these things where these former judges have a direct ‘link’…remove them so that we can proceed with these other matters. The state did not agree, that is the point I am making, I have been left with no choice. I did attempt and I apologize for the length of the submission because I felt that I needed to demonstrate how those reliefs are connected from the first to the last one. I could not split them. The problem with the question as framed was that it was forcing me to argue my case before evidence is called he said.
He said all the reliefs he was seeking were interlinked and it would be meaningless to argue for any of them in the absence of the others.
“They are connected so if the court says I can’t have 4, then I shouldn’t argue 1. If I can’t have 5, then I shouldn’t argue 2 but there needs to be a legal reason for that and that is why I am scratching my head to see. Order 4 is very clear, order 15 is very clear. Can I seek that relief? Yes. What process should I bring, order 4 tells me. Only in default can we start looking elsewhere but there is no default,” said Mutembo.
But Solicitor General Abraham Mwansa argued that reliefs 4, 5 and 6 were not properly before court as they could only be sought under Judicial Review.
“Reliefs 4, 5 and 6 may only be sought by way of judicial review and not by way of a petition. To that extent, our submission is that this court has no jurisdiction to entertain reliefs 4, 5 and 6 as they can have been brought by way of a petition instead of coming to this honorable court by way of judicial review,” said Mwansa.
Judge Mungeni, who was leading the bench then adjourned the matter to a later date for ruling