By GRACE CHAILE-LESOETSA
THE Constitutional Court has upheld the dismissal of disgraced former director of Public Prosecutions (DPP) Mutembo Nchito saying President Edgar Lungu acted within the Constitution.
In this matter, Mr Nchito had petitioned the Constitutional Court over his removal from the office of DPP.
He argued that his removal was unlawful, illegal and that it should, therefore, be declared null and void.
He had cited Attorney General Likando Kalaluka as the respondent in the matter.
In 2016, President Lungu relieved Mr Nchito off his duties for professional misconduct after recommendations from a tribunal set up to investigate his activities. Delivering ruling on behalf of others yesterday in Lusaka, Mr. Justice Palan Mulonda said 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the reference to Article 144 of the Constitution as amended was misplaced though the power exercised was covered by the repealed article 58 of the Constitution.
Therefore, Mr Justice Mulonda said, that the President’s action thus cannot be said to be unconstitutional, illegal or null and void as alleged by Mr Nchito.
“ In conclusion we wish to state that the President acted constitutionally when he relived the petitioner (Mr Nchito) of his duties as DPP despite the fact that the letter of dismissal erroneously refereed to Article 144 of Act no.2 of 2016 and not the repealed Article 58 of the Constitution of Zambia, 1991,” read the judgement in part.
However, the Constitutional Court with full bench comprising of Justices Enock Mulembe, Mungeni Mulenga and Professor Margret Munalula, Mulonda and Martin Musaluke granted the declaration that Mr Mutembo was entitled to be availed the findings or the report by the ad hoc Tribunal. The Court said this was in the interest of retaining confidence in the adjudicative mechanism by affected secured officers.
And further that it would make subsequent judicial review proceedings meaningful should the affected officer elect to commence such proceedings.
“We further state that an affected party in constitutionally ordained removal process who has appeared before the relevant adjudicative body, in this case the adhoc Tribunal constituted pursuant to the repealed Article 58 was entitled to copy of the reasoned decision of such proceedings,” said Mr justice Mulonda.
“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,” he said.
Mr Nchito had submitted that the President’s action of removing him from office pursuant to Article 144 of the Constitution, when he has never been subjected to appear before the Judicial Complaints Commission was unconstitutional and therefore null and void.
He also submitted that it was unfortunate that he was denied access to the report of the tribunal. Mr Nchito wondered how a person affected by a ruling could not be afforded an opportunity to challenge it.
He stated that would be absurd if the court agreed with the State’s position that he as a constitutional office holder was not entitled to the tribunal report
By GRACE CHAILE-LESOETSA