LUSAKA High Court Judge Mwila Chitabo has overruled President Edgar Lungu and has reinstated embattled Director of Public Prosecutions (DPP) Mutembo Nchito who was suspended on Tuesday for alleged professional misconduct and impropriety.
Judge Chitabo who also presided over the Chongwe arrest of Mr Nchito signed an order prepared by Nchito and Nchito law firm and ruled that the decision of the President to set up a tribunal against the DPP and his suspension, including all other decisions incidental hereto, be stayed until after the hearing of the summons for judicial review hearing or until further order.
Judge Chitabo has stayed the Annel Silungwe Tribunal appointed by the President to probe Mr Nchito who has been accused of an array of offenses including forgery and fraud.
This is an unprecedented judicial decision. The last time a judge overruled a President was in a matter where President Levy Mwanawsa appointed Heritage Party MPs into his government and the judge was forced to withdraw his ruling, blaming his bad judgment on a bout of malaria.
Mr Nchito has been granted a stay pending an interparte hearing scheduled for Monday 23 March 2015.
Mr Nchito has argued that the decision by President Lungu to suspend him and constitute a tribunal should be quashed because it attempted to delve into issues that were subjudice for contravening the National Prosecution Authority Act number 34 of 2010.
In particular, Mr Nchito feels that the President is interfering in the operation of his office and wants damages for misfeasance in public office.
Yesterday, Judge Chitabo stayed a tribunal constituted by President Lungu to investigate Nchito on alleged acts of impropriety and misconduct and nullified the suspension of the DPP from office.
Presidential spokesperson Amos Chanda when contacted for a comment from South Africa declined to comment but referred the author to Articles 56, 57 and 58 of the Constitution.
Article 58 of the Constitution spells out the powers of the Head of State to remove the DPP from office without giving any explanation and if the President considers that the question of removing a person holding the office of the DPP from office ought to be investigated, then he shall appoint a tribunal which shall consist of a chairman and not less than two members who hold or have held high judicial office.
In an order granting leave to apply for judicial review, Judge Chitabo directed that the tribunal, suspension of Mr Nchito and other decisions made by President Lunge had been stayed.
Mr Nchito applied to the court to grant him leave for judicial review over the decision by President Lungu to constitute a tribunal to probe the DPP who is facing a barrage of charges and allegations.
Mr Justice Chitabo has set March 23 as the date for inter parte hearing. “It is hereby ordered that the application be allowed and that the said applicant do have leave to apply for judicial review as aforesaid.
It is further directed that the application for judicial review be made by originating summons to a judge in chambers and that the hearing of the said summons shall be expedited.
“It is further directed that the decision of the President to set up a tribunal against the applicant and the suspension of the applicant, and all decisions incidental thereto, be stayed until the hearing of the summons for judicial review herein or until further order,” Judge Chitabo said.
The judge said during ex-parte hearing in chambers that it was a fit case to grant leave for judicial review because issues raised were premised on constitutional matters and the security of tenure of the DPP. In his application for leave to apply for judicial review, Mr Nchito said since he had been suspended, he prayed that the decision to set up the tribunal and suspend him be stayed pending the hearing and determination of his application.
Mr Nchito said the decision to set up a tribunal must be seen to be irrational because it was made despite the pending existence of a case before the High Court.
He said the irrationality was made clear by the fact that President Lungu was quoted as having said that he would not take any steps against him because his issues were still in court.
Mr Nchito is seeking a declaration that President Lungu’s decision was unlawful as it contravened regulation 6 of the NPA Act number 34 of 2010 and a prohibition to restrain the President from otherwise interfering in the operations of the Director of Public Prosecutions office.