FORMER Director of Public Prosecutions (DPP) Mutembo Nchito has petitioned the Lusaka High Court seeking a declaration that the conduct of the tribunal which was set up against him contravenes the Constitution, making its findings null and void.

Nchito, who has cited the Attorney General as the respondent in the matter, is also praying that he should be compensated for his unconstitutional and unjust removal from a constitutionally protected office (DPP), which compensation should be at the very least include all emoluments and prerequisites of his office, which office he was entitled to hold until retirement at the age of 60.

He is further seeking among others, a declaration that the refusal by the Attorney General to furnish him with the report of the tribunal is an infringement of his right to natural justice and to a free and procedurally fair hearing.

In October last year, the Constitutional Court 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 said this was despite the fact that the letter of dismissal erroneously referred to Article 144 of Act No.2 of 2016 and not the repealed Article 58 of the Constitution of Zambia, 1991.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, ruled that Mutembo was 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.

But according to a petition filed yesterday, Nchito is further seeking a declaration that his Constitutional right to the protection of the law was infringed when he was subjected to a tribunal which was compromised by undeclared conflicts of interest of its members; and bias or the unlawful appearance of bias and which therefore lacked independence and partiality.

According to the affidavit verifying facts, Nchito stated that he was wrongfully arrested and detained at Chongwe Police station whilst serving as DPP even though the High Court granted him leave to commence judicial review proceedings which was to operate as a stay of the warrant of arrest.

“That after the failure of the Chongwe proceedings, the same criminal allegations which were not investigated by law enforcement agencies or anyone were again filed before honorable Lameck Mwale as he then was at the Lusaka subordinates court. The charges were raising the same allegations for which I had been granted a stay by judge Chitabo and for which I was wrongly arrested in contravention of the stay. That to stop this abuse of the criminal prosecution process against me as the serving and incumbent DPP, I entered a nolle prosequi to the charges filed before honourable Mwale as stated above,” he said.

Nchito noted that after the criminal proceedings failed, he received a letter of suspension from President Edgar Lungu dated March 10, 2015 which also informed him of the setting up of a tribunal comprising justices Silungwe, Ngulube and Sakala to probe him on the basis of substantially the same matters as the ones he had twice been charged with and for which a stay had been granted, an order of nullification issued and a nolle prosequi entered.

He explained that the terms of reference contained allegations which exposed the conflict of interest and bias of Justices Ngulube and Sakala

“That justice Sakala’s conduct in relation to that case was worrying enough that I complained. How could he now sit to determine a complaint in relation to the same matter in which I had complained against him three years prior to the constitution of the tribunal? That justice Sakala as a matter of necessity should have excused himself,” stated Nchito.

“That in relation to Justice Ngulube, I made it known that it was my exposure as an advocate of his receipt of illicit funds from the infamous Zamtroop account during the tenure of President FTJ Chiluba, that led to his premature departure from the office of chief justice. I had and have every reason to believe that my exposure of Justice Ngulube’s illicit activities in relation to the Zamtroop account would make it impossible for him to offer me a fair hearing and for that reason alone, justice Ngulube who left the office of chief justice as a disgraced figure ought to have recused himself.”

He told the court that the tribunal began listening to witness testimonies in April 2016 and allegedly issued their report in or about August 2016 but he only heard of the tribunal’s decision recommending his removal through a press statement issued by Amos Chanda.

Nchito said he later received a letter from the President relieving him of his duties as DPP, basing his decision on the report of the tribunal which has not been given to him to date.

He is therefore seeking a declaration that justice Sakala’s involvement with the terms of reference contravened article 18(9) of the constitution as he lacked the necessary independence and impartiality to sit as a tribunal member as required by the constitution.

Nchito further prays that the court declares that the conduct of justice Ngulube was in contravention of Article 18(9) of the constitution when he elected to continue sitting on the tribunal and probed him in spite of his personal connections to the terms of reference which militated against his independent and impartial involvement in the tribunal as required by the constitution.

He is also seeking damages for the violation of his constitutional rights to justice, personal liberty and a fair and independent hearing.

Nchito has also prayed that the court declares that he was unlawfully detained when the Zambia Police service proceeded to arrest him and imprison him at Chongwe in contravention of breach of an order of the High Court quashing the proceedings.

That he should be compensated by the respondent for his unlawful arrest and detention pursuant to Article 13(4) of the constitution of Zambia and that he is entitled to such other consequential orders as this court may deem fit and necessary and that it may be ordered that the costs of and occasioned by the petition be borne by the respondent.