Thu, 14 Dec 2017 12:12:14 +0000
By Chintu Malambo
THE state has asked the Constitutional Court to throw out former Director of Public Prosecutions (DPP) Mutembo Nchito’s demands that the Annel Silungwe-led tribunal that recommended his dismissal should testify in the matter in which he has challenged his sacking.
Earlier, Nchito had subpoenaed retired Chief Justice Annel Silungwe, chairperson, retired Chief Justice Matthew Ngulube as the secretary and retired Chief Justice Charles Zulu who was the vice-secretary of the tribunal.
He accused former Chief Justices Matthew Ngulube and Ernest Sakala of having embarrassing conflicts of interest and biases in the matter before them which they did not declare to the parties but chose to continue.
But in an affidavit in support of summons to set aside the subpoenas, Solicitor General Abraham Mwansa said the subpoenas should not be allowed as they were issued without leave of the court.
Mr Mwansa argued that the Constitutional court did not provide procedure of how a witness ought to be subpoenaed but that order 1 rule 2 of the Constitutional court referred to the rules of the Supreme Court for practice and procedure.
He relied on order 38 rule 19 sub rule 3 of the rules of the Supreme Court which provided that before a subpoena can be issued for attendance in the court of appeal, leave must first be obtained from the court by motion or notice.
“Before a subpoena may be issued, a praecipe duly completed must first be filed in the office from which it is to issue. Any party may issue a subpoena for the examination of the witness or for the production of documents by him, at any stage, without the leave of the court.
On the other hand, subpoenas may not issued to compel the attendance of a witness for the purpose of proceedings in chambers, except with leave.
“Similarly, before a subpoena can be issued for attendance in the court of appeal, leave must first be obtained from the court by motion or notice,” Mr Mwansa argued.
Mr Mwansa further emphasised that order 1 rule 2 of the Constitutional court was very clear on the practice and procedure to be followed and that Nchito ought to have sought leave from the court before he caused the subpoenas to be issued out of the Constitutional court registry.
The matter comes up on February 22, 2018.
