The State says it will not make any sense to respond to former Director of Public Prosecutions Mutembo Nchito’s application to summon witnesses when his petition may be dismissed.

But Mutembo says the State has breached the court’s orders and deserves rebuke from the court.

However, the ConCourt has opted to hear the state’s motion to dismiss the petition before Mutembo’s application to summon former chief justices Ngulube and Sakala.

This is the matter in which Mutembo has petitioned the Constitutional Court over his removal from the office of DPP, saying it was unlawful, illegal and should therefore be declared null and void.

Earlier this month, the State filed a notice to raise preliminary issues in court on November 15 on whether the decision by the President to remove Mutembo as DPP can be reviewed and whether he can be reinstated.

However, when the matter came up for hearing before Constitutional Court judges Mungeni Mulenga, Enock Mulembe, Palani Mulonda, Margaret Munalula and Martin Musaluke, Wednesday, Mutembo said he could not respond to the State’s notice because he was of the view that his application to summon witneseses should be heard first.

He said he expected a response from the State on October 25 but it never came, instead the state filed another motion on 2nd November and allocated a date to itself.

Mutembo complained that the last time he did not file documents, the court rebuked him meanwhile the State had breached the orders.

“I take issue with this conduct because what is good for me as a petitioner, should be good for the State as the respondent. The State complained last time about following court directives and the court rebuked me,” Mutembo said.

Mutembo said in his opinion, the matter was coming up for his application which was scheduled for November 15 and the State should not give itself a date to hear it’s application. It is the Court that should control the process, he argued.

In response, Solicitor General Abraham Mwansa said they could not file any response to his application because they were of the view that the notice of motion that they filed earlier this month was the appropriate step to take.

He added that it would not make any sense responding to his application because it could be disposed off in its entirety.

“An application pursuant to order 14A of the white book takes precedence over all other applications because it goes to the root of the cause of action. It would therefore not make any sense on our part to respond to the petitioners application because the matter maybe disposed off in its entirety,” he said.

“We would however be obliged to file responses if any, in the event that our motion is dismissed. It was for the reason that applications pursuant to order 14A take precedence over other applications that we infact inscribed November 15, 2018, the date to which the hearing of this matter was adjourned.”

In reply, Mutembo said Mwansa’s choice of words was unfortunate, reiterating that the State ought to have responded to his application.

“The choice of words by the Solicitor General is unfortunate. Because if I heard him correct, he said it would not make sense to respond to the petitioners application where they had raised order 14A issue. My point is, the State ought to have responded. They can’t decide when to respond when the matter is being heard before court. They are now applying to set aside the originating process when the court has ruled on the same issue,” he said.

Mutembo asked the court whether there were any consequences for breaching court’s orders.

“For me, the problem I have is what procedure are we following? I would like to be guided. As far as I know my application is the application of the day. Is there any consequence for breach of directions?” he asked.

However, the court guided that the order in which applications could be heard was at their discretion.

They directed that they would first hear the notice of motion to dismiss, then the application for the subpoenas would be dealt at a later date.

“We have heard the parties and we wish to guide that the issue of the order in which applications will be heard by the court is solely the discretion of the court. It does not always follow that once an application has been made first, that is the first application to be heard. The rules are clear that where there’s an application that goes to the root of an action, then that application takes precedence in terms of the order in which they are heard,” the court said.

“Currently before us we have two applications pending. That is the application for the subpoenas and also the other motion to dismiss the action, as well as, the main action itself.”

Regarding Mutembo’s sentiments that the respondent did not file any response within the dates given by the court, the court said that issue would be appropriately dealt with at the right time in terms of what sanctions to follow.

The matter has been adjourned to Friday, November 23, at 11:00 hours.