Lungu can’t be compelled to avail Mutembo report on his dismissal – Kalaluka

Attorney General Likando Kalaluka has submitted to the Constitutional Court that the President cannot be compelled to avail former Director of Public Prosecutions (DPP) Mutembo Nchito with a report of the tribunal that recommended his dismissal, when there is no basis at law requiring him to do so.

He has therefore asked the court to dismiss Nchito’s petition with costs.

In this matter, Nchito 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He alleged that following his suspension from office, a tribunal was set up under Article 58, which was subsequently repealed by the Constitution [Amendment] Act No. 2 of 2016, to prob him on various matters.

The tribunal proceeded to issue a report to President Edgar Lungu whose recommendations led to his removal from office as DPP pursuant to Article 144 of the Constitution as amended.

Nchito challenged his removal from office and questioned the legality of denying him access to the said report.

But in his final submissions awaiting judgement, Kalaluka stated that the tribunal had sufficient authority to proceed under repealed Article 58 of the constitution and did not need to proceed under Article 144 as insisted by Nchito.

He submitted that there was no legal basis for Nchito to be shown the findings of the tribunal or any legal basis that placed a duty on the President to furnish a copy of the report to him.

“Under the provisions of the repealed Article 58(3) the tribunal was mandated to report on the facts of the inquiry to no person other than the President. The President cannot be compelled to avail the petitioner with the report when there is no basis at law requiring him to do so,” Kalaluka stated.

He further submitted that the repealed Article 58 of the constitution of Zambia 1991, was clear that the report ought to be given to the President and there could be no elastic interpretation given to this provision to empower the court to order the President to give Nchito the report.

Kalaluka added that if the court was to compel the President to avail Nchito the report, it would be contrary to the provisions of the Constitution, which was the supreme law of the land.

“Unless and until the Constitution is amended, there was and there is no room for such a report to be furnished to persons in situations such as the petitioner,” stated Kalaluka.

Kalaluka asked the court to dismiss the Nchito’s petition with costs.

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Assaf Zulu
Assaf Zulu

Ba Nchito imwe, just accept that you are gone.

S M
S M

So, if the person being investigated cannot be given the report, how is he supposed to challenge it in court? I thought the former Chief Justices had insisted that the tribunal was an “Administrative” one? Do you mean to say that such a tribunal cannot be challenged?

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