LUSAKA High Court Judge Mubanga Kondolo should dismiss and set aside the leave to commence judicial review granted to suspended Director of Public Prosecutions (DPP) Mutembo Nchito because it is against the law, Attorney-General Likando Kalaluka has submitted.
This is a case in which Judge Kondolo has allowed Mr Nchito to commence judicial review, challenging the ruling of the Annel Silungwe tribunal on preliminary issues.
Mr Nchito had raised preliminary issues that the tribunal should be held in public, that two tribunal members, former Chief Justices Mathew Ngulube and Ernest Sakala, should recuse themselves and that terms of reference were in competent in law.
But tribunal chairman Annel Silungwe in his ruling dismissed all three preliminary issues.
It was at this point that Mr Nchito made an application to commence judicial review and was granted.
But Mr Kalaluka has argued that a judicial review cannot be used to curtail the processes of an investigative tribunal.
Mr Kalaluka said the tribunal’s decision to dismiss Mr Nchito’s preliminary issues was rational and was arrived at after the parties were heard.
Mr Kalaluka’s submissions are contained in arguments on application to discharge the order granting leave to apply for judicial review filed in the Lusaka High Court on Monday.
“We urge this honourable court to take cognisance of the fact that the order to stay the decision of the President to establish the tribunal and suspend the DPP from the performance of duties as such flies in the face of Section 16 of the State Proceedings Act Chapter 71 of the Laws of Zambia that prohibits grant of injunctions against the State. An injunction of the nature obtained by Mr Nchito can therefore not lie against the President of the Republic of Zambia,” he said.
He said the decisions of the tribunal appointed to probe Mr Nchito’s alleged misconduct and incompetence are not amenable to judicial review.
Mr Kalaluka said the constitutional provisions are clear and unambiguous that no court has the mandate to interpret them or make glosses or interpolations derived from doctrine of case law.
He said seeking to determine how the tribunal constituted under Article 58 of the Constitution is supposed to carry out investigative processes amounts to interpreting the same provisions thereby delving into the merits of the matters and substituting the court’s opinion for that of the tribunal.
Mr Kalaluka said the judicial proceedings should be dismissed for want of competence because by entertaining the application the court will be making glosses and interpolations from the doctrine of case law.
“In the most unlikely event that your lordship holds the view that the leave to apply for judicial review application is competent, it is our submission that the decisions which are being challenged herein are rational, legal and procedurally correct,” he said.