It is the temerity that continues to rattle. It is not normal.
Perhaps the Government could consider invoking Article 139(10) and directly try Mutembo Nchito in a court of law for abuse of authority and corruption. This is possible if the President invokes his power under Article 57, where he does not have to invoke or constitute a tribunal.
This means that Mutembo will be tried in a court of law for the offences of abuse of authority of office.
Mutembo Nchito should not be wasting the people’s time through unnecessary preliminary issues to delay his fate.
The country cannot continue to be subjected to a circus. Obviously Mutembo has no wish of going peacefully. He wants to disparage and undermine authority to the very end.
It is most abnormal to challenge the President, the appointing authority, who has exercised his constitutional power and authority to constitute a high-powered tribunal to investigate the question of removing a person holding office.
For the affected office holder to suggest the appointing authority and indeed the tribunal thus appointed lack constitutional jurisdiction to undertake the exercise is at best otiose.
To argue that the grounds for investigation are not clear or indeed flawed represents an egregious misapprehension of the Constitution because the President has the ultimate power to suspend the DPP and order an investigation through a tribunal.
Objecting to the tribunal is as nonsensical as objecting to a police investigation if an offence is suspected.
Whether or not the President “cut and pasted” the charges is not for the office holder to object. Indeed whether or not other charges have been added is not a substantive flaw. Such addition or omission of charges cannot constitute a ground on which to invalidate the entire tribunal.
What matters most is that the appointing authority does not have the confidence in the office holder against who charges or complaints have been raised. It is therefore imperative that any lingering doubts whatever the source are fully investigated. What is the logic, what is the connection between the State withdrawing the charge of planting drugs and the charge of entering a nolle to a businessman who the DPP owes $4.2 million? Should the entire tribunal stop because one charge has been removed or added?
There are two possible outcomes to a tribunal. The first is for the Tribunal to clear Mutembo Nchito of the charges levelled against him and the second is for the tribunal to recommend his removal from office for among other things, misbehaviour.
The fact that the Constitution does not include corruption, conflict of interest and abuse of authority, in those very specific words, does not make the charge any less invalid.
Misbehaviour encompasses conduct that affronts the proper conduct of an individual. It includes abuse of office and conduct that is likely to bring the dignity of the office into disrepute.
The Constitution does not give specification as regards the manner in which allegations leading to an investigation should be constituted. It is however assumed as a matter of course and in the interest of natural justice that the office holder will be given an opportunity to be heard before the tribunal makes a recommendation. To resist an investigation is tantamount to insubordination, and the consequence of such action is very clear.
Article 57 of the Constitution allows the President to sideline the Director of Public Prosecutions and “he may on the advice of the Judicial Service Commission appoint any person to discharge the functions of the Director of Public Prosecutions until such appointment is revoked”.
In other words the President has inherent powers to sideline the DPP at any time. If it becomes necessary Mutembo may just force the hand of the President to expedite criminal prosecution.
If Mutembo resists the tribunal, he will force the invocation of Article 139 (10) read in conjunction with Article 57.
This way the abuse of authority and corruption cases will be heard in a court.
Let there be no mistake that Article 139(10) states very clearly that, “provisions of this Constitution that any person or authority shall not be subject to the direction or control of any other person or authority in the exercise of any function under this Constitution, shall not be construed as precluding a court of law from exercising jurisdiction in relation to any question whether that person or authority has performed those functions in accordance with this constitution or any other law”.
Nobody is above the law.