THE State has described as incompetent and misconceived preliminary issues raised by suspended Director of Public Prosecutions (DPP) Mutembo Nchito to the Annel Silungwe Tribunal constituted to investigate his (Nchito) professional misconduct which should not be entertained.
The State has argued that the tribunal appointed to consider the question of removing the person holding the office of the DPP was investigative in nature and not an adjudicative tribunal although Mr Nchito decided to raise his incompetent preliminary issues.
According to the skeleton arguments in opposition to preliminary issues raised by Mr Nchito to the tribunal, the State has submitted that only courts of law and an adjudicative tribunal had the jurisdiction to hear preliminary issues.
The State has argued that it was common practice and trite law that a person being investigated by the tribunal could not raise preliminary issues demanding how he should be investigated and by who.
The State, through the Attorney General, submitted that it was fortified by the ruling in the Wynter Kabimba Tribunal which refused to entertain preliminary issues and cautioned that the Annel Silungwe Tribunal would be acting outside its provision and mandate if it entertained Mr Nchito’s submissions.
It argued that entertaining the “incompetent” preliminary issues raised by Mr Nchito would mean that the tribunal would be acting outside its terms of reference and the realm of adjudication which would involve the exercise of judicial powers.
The State stated that the tribunal should limit itself to obtaining information and report the facts to the President and advise whether the person holding the office of the DPP ought to be removed from the office for incompetence, inability or misbehaviour.
“From the onset, it is the State’s submission that the preliminary issues raised by the DPP are incompetent and based on the misapprehension of the tribunal’s jurisdiction. In seeking to depart from the constitutional provisions of setting up a tribunal and its terms of reference, the DPP has argued that while this tribunal is characterized as an investigative tribunal, its functions are more than investigative simply because its recommendations must be implemented by the Republican President. We submit that this argument is misconceived as the jurisdiction of this tribunal is defined by Article 58 (3) (b) of the Constitution and the Tribunal terms of reference,” the State submitted.
The State said it noted with concern that while the DPP seemed happy to rely on the Constitutional provisions which gave him security of tenure in their entirety, he (Nchito) was seeking to have a selective and peace-meal reliance on the Constitution provisions relating the jurisdiction of the tribunal appointed to investigate him.
It argued that should Mr Nchito consider that the investigative procedure to remove him from office was inherently or patently flawed, he had an opportunity to challenge such investigative procedure before the courts of law.
The State submitted that while it was admitted that the DPP in the exercise of his powers was not subject to any direction or control of any person or authority, it vehemently denied that Mr Nchito could not be investigated after the exercise of such powers to establish whether such powers were exercised competently or in a manner deemed to amount to misbehaviour. The State argued that it was misconception on the part of Mr Nchito to argue that the constitutional powers he enjoyed as DPP protected him to an extent that after the exercise of such powers, no inquiry or investigation should ever be constituted to determine his competence.
“We submit that the provision of Regulation 6 of the First Schedule of the National Prosecution Authority Act of 2010 does not grant the DPP carte blanche powers or immunity to act in whatsoever manner he wants. The immunity afforded by Regulation 6 is subject to acts or omissions having been done in good faith. The converse is true that where it is shown that the acts or omissions of the DPP were exercised mala fades (in bad faith). Then the DPP ceases to enjoy the immunity. It is our contention that the DPP exercised his powers in bad faith and does not enjoy immunity with respect to such acts and omissions,” the State submitted. The State also argued that Mr Nchito’s allegations, biasness and conflict of interest against two members of the tribunal, former Chief Justices Mathew Ngulube and Ernest Sakala were merely meant to scandalize their Lordships.
It stated that such unwarranted and unsubstantiated attacks against the former Chief Justices were only meant to delay and unravel the tribunal and undermine its integrity and urged the members of the tribunal to remain steadfast and focused on the task so that the tribunal could discharge its mandate.
The State objected to the submissions that the hearing of the proceedings should be open to the public but be held in camera so as to protect the integrity of the constitutional office.