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Court throws out Nchito appeal

SUSPENDED Director of public prosecutions Mutembo Nchito (left) talking to ZED party president Fredrick Mutesa at Supreme Court in Lusaka yesterday. PICTURE: ANGELA NTENTABUNGA.

TEDDY KUYELA, Lusaka
THE Supreme Court has thrown out an application by suspended Director of Public Prosecutions (DPP) Mutembo Nchito to stop the Annel Silungwe-led tribunal to probe him for alleged misconduct and impropriety.
This means that the tribunal which was appointed last year by President Lungu will now commence sitting.
Chief Justice Ireen Mambilima, who delivered the ruling on behalf of four other Supreme Court judges, said yesterday that the High Court erred by granting Mr Nchito a judicial review to restrain the tribunal from probing him.
Justice Mambilima said the tribunal should be allowed because it is merely an investigative tribunal intended to afford Mr Nchito a hearing on the allegations made against him.
“This is in line with the constitution protection of the tenure of office for the Director of Public Prosecutions as envisaged by Article 58 of the Constitution.
“The tribunal should be allowed because in our view, Mr Nchito did not establish any grounds that can be said to have made his application for judicial review so exceptional that without reviewing the tribunal’s ruling, he would suffer a fundamental failure of justice,” she said.
Justice Mambilima said the courts could have only intervened when it is absolutely clear that Mr Nchito would suffer a fundamental failure of justice and that if the court intervenes before the tribunal renders its final decision, there is a risk of the court straying into deciding on the correctness or merits of the preliminary issues.
She said in addition, allowing judicial review of interlocutory decisions of administrative tribunals would hinder them from efficiently conducting their administrative inquiries.
“In our view, the need to protect constitutional office-holders from unfairness in the process of enforcing investigative constitutional procedures for their removal from office must be balanced with the equally important need not to make the said investigative procedures practically untenable or unduly protracted,” Justice Mambilima said.
Earlier, the State had challenged the ruling of the Lusaka High Court which allowed Mr Nchito to commence judicial review over decisions of the Annel Silungwe-led tribunal.
The State felt that the tribunal, as an investigative body, should not be open to judicial review.
Mr Nchito was contesting decisions of the tribunal, which dismissed preliminary objections, including sitting in camera and recusal of members of the tribunal.
High Court judge Mubanga Kondolo dismissed an application by the Attorney General to discharge leave granted to Mr Nchito.
Judge Kondolo ruled that judicial review and other civil proceedings could not be employed to curtail proceedings.
Attorney General Likando Kalaluka, however, had submitted in the High Court that entertaining judicial review “will set the court on a path to either curtail the tribunal investigative process or purport to interpret article 58 of the Constitution”.
Mr Kalaluka at that time, argued that the decision made by the tribunal to dismiss preliminary issues, which stimulated the application for judicial review by Mr Nchito, were reasonable and were not so outrageous or in defiance of logic or of accepted moral standards.
In his ruling recently, Mr Justice Kondolo disagreed with the State that the mere act of subjecting the tribunal to the process of judicial review would result in curtailing its process or investigative process.
President Lungu appointed a tribunal to probe Mr Nchito on eight terms of reference that include alleged acts of impropriety.
The tribunal members are former chief justices Annel Silungwe, as chairperson, Ernest Sakala and Mathew Ngulube as members, and Mathew Zulu as secretary.
The tribunal has also been tasked to recommend whether Mr Nchito ought to be removed from office as a result of the allegations.

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