State Counsel Mutembo Nchito has asked the Constitutional Court to forgive him for feeling that he has not had the opportunity to freely prosecute the matter where he is challenging his dismissal as Director of Public Prosecutions (DPP) in the manner that he saw fit.
Mutembo has told the court that it appeared at every possible turn that attempts had been made to curtail his liberty to prosecute his case.
In this matter, Mutembo filed a petition in 2016, challenging his removal from office as DPP in 2015 and cited the Attorney General as the respondent.
He alleged that following his suspension from office, a tribunal was set up under Article 58 of the Constitution, which was subsequently repealed by the Constitution [Amendment] Act No. 2 of 2016, to probe him on various matters.
The tribunal proceeded to issue a report to President Edgar Lungu whose recommendations led to his removal from the office of DPP pursuant to Article 144 of the Constitution as amended.
However, Mutembo challenged this decision and questioned the legality of denying him access to the said report.
He stated in his final submissions awaiting judgment that he felt that attempts had been made to curtail his liberty to prosecute his case.
“As can be seen from the background of this matter as well as the proceedings before this court, the petitioner should be forgiven for feeling that he has not had the opportunity to freely prosecute his matter in the manner that he saw fit. It would appear at every possible turn, attempts have been made to curtail his liberty to prosecute his case,” Mutembo submitted.
He further submitted that even with only two reliefs remaining, he would comply with the directions of the court to tender his submission if for else, to record for ‘history’ that when his rights were infringed, he went to a competent court of law.
“It goes without saying that how the court handles this matter is for the court itself,” Mutembo stated.
He, however, submitted that the President’s action of removing him from office pursuant to Article 144 of the Constitution when he had never appeared before the Judicial Complaints Commission, was unconstitutional and therefore null and void.
Mutembo further submitted that it was unfortunate that he was denied access to the report of the tribunal and wondered how a person affected by a ruling could not be afforded an opportunity to challenge it.
He stated that it would be absurd if the court agrees with the State’s position that he, as a constitutional office holder, was not entitled to the tribunal report.
Mutembo submitted that his case was a proper one to which the court would grant reliefs sought and that on the totality of evidence before court, the declarations he is seeking should be granted.
“Why has the State refused to give the petitioner the report of the tribunal? How is the petitioner expected to challenge decisions that have not been availed to him? It would be absurd for this court to agree with the respondent’s position that the petitioner, as a constitutional office holder, is not entitled to the report,” stated Mutembo.
“We submit that this is a matter this court can look into and grant the said relief. On the totality of the evidence before this court and on the basis of this submission, the petitioner prays that the declarations he seeks should be granted.”