Former Director of Public Prosecutions (DPP) Mutembo Nchito has told the Constitutional Court that he will not be needing a subpoena against retired judges Matthew Ngulube and Ernest Sakala.
Nchito has, however, maintained that the court should supboena the Secretary of his tribunal Matthew Zulu, who is now a High Court judge, to enable him prosecute his matter.
In this matter, Nchito is challenging his removal as DPP arguing that it was illegal and should therefore be declared null and void.
He cited the Attorney General as the respondent in the matter.
Nchito had indicated that he wished to call witnesses to aid his case.
And when matter came up before Constitutional Court judges Mungeni Mulenga, Enock Mulembe, Palan Mulonda, Margaret Munalula and Martin Musaluke, Thursday, Nchito informed the court that upon reflection, he had decided that he would not be requiring a subpeona against justices Ngulube and Sakala.
He, however, maintained that the court should supboena justice Zulu to enable him prosecute his matter.
“In September, last year, we filed a motion to subpoena witneses and at the hearing of preliminary issues raised by the State, the court indicated that we will deal with that motion subsequently. On account of that direction, I would like to indicate that upon reflection, it is my conclusion that we will not be requiring a subpeona in relation to justices Ngulube and Sakala,” Nchito said.
“However, we still maintain our position and motion in relation to the Secretary to the tribunal who is now justice of the High Court of Zambia, Mathew Zulu. It is important to note that at the time justice Zulu was Secretary to the tribunal, he was not High Court judge. We pray the indulgence of the court to subpoena Zulu to enable me prosecute my petition.”
But Solicitor General Abraham Mwansa asked the court to give the State some time to prepare for the motion, saying they didn’t come prepared.
He said when coming to court, he was of the view that the parties were coming for hearing of two reliefs that the court sustained in its ruling on April 18, on whether Nchito was entitled to the tribunal’s report and whether he could be removed from office using article 144 of Act number two of 2016.
“In as much as we are alive to the fact that this is the petitoners case and he has the right to prosecute the matter in a manner he so wishes, the two reliefs hinge on the interpretation of Constitutional provisions, particularly article 144 of Act number two of 2016 and Article 58 of the Constitution before amendment, the latter being a question as to whether the petitioner was entitled to the tribunal report and the earlier being whether he could be removed from office using 144 of Article two of 2016,” Mwansa said.
He said the State was ready to proceed with a trial as it was of the opinion that the motion filed by Nchito to subpoena witnesses, was overtaken by the ruling of the court on April 18.
“Should this court be of opinion that the petitioner be heard on the motion to subpoena witnesses, we will seek the indulgence of this Court to give us time to prepare for the motion as we did not come prepared for that motion,” Mwansa said.
Nchito, however, insisted that during trial, parties were free to call witnesses to aid their case.
He therefore prayed for a trial saying justice should not only be done but must be seen to be done.
In her ruling, justice Mulenga said the issue of the State asking for time was not valid.
She said the court would proceed to render a ruling on the application for leave to subpoena the witness, justice Zulu.
Justice Mulenga added that after the ruling, the court would proceed to hear the matter.
She, however, guided Nchito that the court would not allow him or the witnesses to “go to town” on issues that were not relevant to the petition.
“The petitioner should guide his witnesses that if they wish to give any evidence, the matters must be relevant to the two reliefs,” said justice Mulenga.
The matter will come up on June 23.