Embattled diplomat to Tanzania Yosi Miti has lost his job after the Lusaka High Court discharged the exparte stay which reinstated him as first secretary for Trade after the Ministry of Foreign Affairs recalled him from Foreign Service and terminated his services from the public service.
Lusaka High Court Judge Gertrude Chawatama further said she could not go ahead to grant Mr. Miti leave to commence judicial review and order for a stay of execution.
In her ruling on Wednesday, Justice Chawatama said she could not allow for the judicial review because the matter before her was a private matter in nature and not of public nature.
“Having decided that the remedy sought is an ordinary common law action in contract concerning Mr. Miti’s private rights and not rights protected under public law means that the substantive application if heard would have failed,” she said.
“The distinction between public and private law is already provided for by Order 53/14/33 which states ‘where a person seeks to establish that a decision of a person or body infringes rights which are entitled to protection under public law he must, as a general rule, proceed by way of judicial review and not by way of an ordinary action whether for a declaration or as injunction or otherwise’. As to whether the issues before me fall under private instead of public law to warrant the same to be heard by way of judicial review,” she said.
Justice Chawatama said a claim in connection with the dismissal of an employee from an employment with a public authority, where the conditions of employment were governed by a Statutory Instrument, was nevertheless a matter of a private and not public law.
She explained that the matter before her concerning the employment of Mr. Miti was a subject of the Public Service Commission regulation which derives its authority from the Service Commission Act chapter 259 of the laws of Zambia.
“In the matter before me the employment of the applicant is subject of Public Service Commission regulations which derives its authority from the Service Commission Act chapter 256 of the Laws of Zambia. The remedy being sought by the Applicant is an ordinary common law action in contract concerning his private rights and not rights protected under public law,” said Justice Chawatama.
And Justice Chawatama dismissed the application to commence contempt proceedings against Foreign Affairs permanent secretary Chalwe Lombe, High Commissioner to Tanzania Juduith Kapijimpanga and permanent secretary Public Service Management Division Dr. Velepi Mtonga.
Others were chairman for the Public Service Commission Dr. Kamanga and the Attorney-General Likando Kalaluka.
“Counsel for the respondent brought to the court’s attention his desire to file an application for contempt of court but was informed by the court that the court had adjourned to hear the application for the discharge of the order granting the application for leave to commence judicial review and to stay execution.
Since this application would have a bearing on whether or not the application for committal for contempt of court would be entertained, the court went ahead and heard the application to discharge. Having made the decision to discharge the order granting Mr. Miti leave to commence judicial review and to stay execution, the application for contempt of court cannot be entertained,” ruled Justice Chawatama.
Early this month, Mr Miti was detained for four days at Julius Nyerere International Airport in Tanzania where he had gone to visit his family.