THE Constitutional Court has ruled that President Edgar Lungu acted constitutionally when he relieved Mutembo Nchito State Counsel of his duties as Director of Public Prosecutions (DPP) in 2016.
The ConCourt says this is despite the fact that the letter of dismissal erroneously referred to Article 144 of Act No.2 of 2016 and not the repealed Article 58 of the Constitution of Zambia, 1991.
The ConCourt, however, has ruled that Mutembo is entitled to be availed the findings or report by the adhoc tribunal upon which the President based his decision to relieve him of his duties as DPP.
In this matter, Mutembo filed a petition in 2016, challenging his removal from office as DPP and cited the Attorney General as the respondent.
He stated that following his suspension from office, a tribunal was set up under Article 58, which was subsequently repealed by the Constitution [Amendment] Act No. 2 of 2016, to prob him on various matters.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.
Mutembo challenged his removal from office and questioned the legality of denying him access to the said report.
But in a judgement delivered Tuesday morning by Constitutional Court judge Palan Mulonda on behalf of justices Mungeni Mulenga, Enock Mulembe, Margaret Munalula and Martin Musaluke, the court noted that the judgement was being delivered four years since the first petition was filed in court.
Judge Mulonda said it was the Court’s firm view that while Article 144 of the Constitution as amended was the correct provision under the new constitutional order to exercise powers of dismissal against an officer falling under its coverage, in this case the DPP included, the case at hand does not fall under its coverage.
He said this is so because the repealed Article 58 is what applied in the case at hand, adding that, that being the case, Article 144 of the Constitution as amended within the context of this case was a wrong provision to anchor the decision of dismissal in this case.
“It follows therefore, that the reference to Article 144 of the Constitution as amended was misplaced though the power exercised was covered by the repealed Article 58 of the Constitution of Zambia, 1991,” judge Mulonda said.
He said the President’s action thus cannot be said to be unconstitutional, illegal or null and void as alleged by Mutembo.
The court however, granted the declaration that Mutembo was entitled to be availed the findings or report by the adhoc tribunal.
“In conclusion, we wish to state that the President acted Constitutionally when he relieved the petitioner (Mutembo) of his duties as DPP despite the fact that the letter of dismissal erroneously referred to Article 144 of Act No.2 of 2016 and not the repealed Article 58 of the Constitution of Zambia, 1991,” the court ruled.
“We further state that an affected party in a Constitutionally ordained removal process who has appeared before the relevant adjudicative body, in this case the adhoc tribunal constituted persuant to the repealed Article 58 was entitled to a copy of the reasoned decision of such proceedings. This in our view is in conformity with the principle underlying the mechanism for removal of constitutionally secured officers, who through such mechanism must be given justification for their disappointment.”
The court ordered each party to bear their own costs.
Earlier, in the judgement, the court gave a brief account of the matter which was that Nchito while serving as DPP in 2015 was arrested and detained in police custody at Chongwe.
This followed a bench warrant issued by the Chongwe Magistrates’ Court.
Nchito before his arrest applied for leave to commence judicial review proceedings which leave was granted and was to act as a stay of proceedings.
However, the proceedings at Chongwe did not abate until Nchito obtained a High Court order nullifying the said proceedings at Chongwe.
Nchito was again the subject of fresh charges that were similar in nature with those at Chongwe, but this time before the Lusaka Magistrates’ Court.
In the Lusaka proceedings, Nchito as both DPP and the accused person, personally entered a nolle prosequi and urged the complainants to have the matter investigated if they so wished.
Following the development, by letter dated March 10, 2015, the President suspended Nchito persuant to the now repealed Article 58(2) and (3) of the Constitution of Zambia, 1991, pending the findings of a three member adhoc tribunal which was appointed to probe Nchito.
Whilst the tribunal was sitting, Nchito commenced proceedings before the Constitutional Court to continue his challenge of the tribunal’s jurisdiction, but before the matter could be heard by the ConCourt, the tribunal concluded its proceedings and presented its findings and recommendations to the President.
The tribunal, however, did not avail Nchito a copy of the report.
Following the presentation of the report to the President, the President proceeded to relieve Nchito of his duties as DPP on August 9, 2016.
It is this removal from office that led Nchito to petition the ConCourt on August 10 alleging that his removal from office was unconstitutional.