THE Lusaka High Court has overturned the decision of the Chongwe Magistrates’ Court to issue a bench warrant for the arrest of the Director of Public Prosecutions (DPP) Mutembo Nchito for alleged abuse of office.
High Court judge Mwila Chitabo invoked the provisions of 338 (1) (b) of the Criminal Procedure Code and set aside the warrant of arrest and ruled that all purported proceedings in the lower court are null and void and are of no legal effect.
In his ruling upon recalling of the matter before the subordinate court, Mr Justice Chitabo said Chongwe Magistrate Moses Phiri had no jurisdiction to entertain the complaint contrary to the provisions of sections 111 of the Criminal Procedure Code.
This is in the matter in which Newton Ng’uni lodged a complaint against Mr Nchito on various criminal accusations.
The judge directed that the records of the matter in the Chongwe Magistrate Court should be taken to the High Court to determine legality of the proceedings before the lower court.
“I then invoke the provisions of section 337 of the Criminal Procedure Code, that gives the court supervisory power over subordinate courts and direct for the transmission to me of the record pertaining to the said complaint at Chongwe subordinate court, for study and determination as to the correctness, appropriateness or legality of the proceedings before the Chongwe Magistrate Court.
“I have since looked at the file and I am satisfied that the accused is ordinarily resident in Lusaka and the alleged offences complained of were allegedly committed in Lusaka,” Judge Chitabo said.
He said regulation 26 of the National Prosecutions Act grants immunity to the Director of Public Prosecutions in acts done in the course of his duties.
He said after being briefed by Mr Nchito’s lawyer, his older brother Nchima, he formed a strong view that this was a proper case to grant an ex parte order for leave for judicial review.
“The said order was to operate as a stay of the warrant of arrest, pending the determination of the inter parte summons for leave to commence proceedings for judicial review, whose date would be given upon perusal of the file before the magistrate,” he said.
Mr Justice Chitabo said there appeared to have been no complaint preceding the arrest warrant contrary to section 100 of the Criminal Procedure Code.
He said Mr Nchima Nchito submitted that on the face of it, the warrant did not indicate the charges against the DPP in line with section 102 (2) of the Criminal Procedure Code.
He said the matter was held on Wednesday in the absence of the accused person and the ruling was adjourned to today at 08:30 but Mr Ng’uni decided to withdraw the complaint before the date of ruling.
“The complainant then proceeded to Chongwe, where he filed a similar complaint before a magistrate who issued a warrant of arrest for Mr Nchito,” he said.
Earlier, Judge Chitabo held a meeting with Acting Chief Justice Lombe Chibesakunda after a misunderstanding with Mr Nchima Nchito when the matter came up for hearing in chambers yesterday.