THE Lusaka High Court has allowed suspended Director of Public Prosecutions (DPP) Mutembo Nchito to commence judicial review against the decision of the tribunal to hold sittings in camera.
This was after High Court Judge Mubanga Kondolo dismissed an application by the State to discharge leave granted to Mr Nchito.
In applying to discharge the leave for judicial review, Attorney General Likando Kalaluka submitted that entertaining judicial review “will set court on a path to either curtail the tribunal investigative process or purport to interpret article 58 of the Constitution”.
Mr Kalaluka submitted that the decision made by the tribunal to dismiss preliminary issues, which stimulated the application for judicial review by Mr Nchito, were reasonable and were not so outrageous in defiance of logic or of accepted moral standards.
But in his ruling yesterday, Mr Justice Kondolo disagreed with the State that the mere act of subjecting the tribunal to the process of judicial review would result in curtailing its process or investigative process.
He said there was no tribunal that occupies a hallowed throne and immuned from interrogation by the process of judicial review.
“I have avoided considering the arguments of the parties as they relate to the specific reliefs sought by the applicant because they constitute the essence of the main application.
“Having said that I find the applicant has disclosed points fit for further investigation on a full inter-parte basis. The respondent application to discharge the leave granted to the applicant is dismissed with costs to the applicant,” he said.
Judge Kondolo said the process was not designed to curtail the works of tribunal, which are an essential requisite of the administrative pulse of any Government.
“The process is merely designed to ensure that individuals are given fair treatment by the authorities to whom they have been subjected. Ensuring that authorities treat individuals fairly does not amount to curtailing the work of those authorities, it merely ensures that the authorities conduct their work fairly,” he said.
Justice Kondolo said the court would only be curtailing the investigative process of the tribunal if it goes beyond examining the decision-making process and delves into the merits of the decisions made by the tribunal.
He said by hearing the application for judicial review, the court would not be curtailing the investigation process of the tribunal but would merely be ensuring that in executing its mandate, the tribunal followed the laws contained in order 53 RSC.
He said judicial review and other civil proceedings could not be employed to curtail criminal proceedings.
The judge said the proceedings were not criminal but administrative established for the purpose of determining whether a constitutional office bearer –suspended DPP – should be removed from office.
“I find that the tribunal established for this purpose is amenable to judicial review. As indicated earlier, I don’t see how the mere act of subjecting this tribunal to judicial review translates into interpreting article 54 of the Constitution. This court has made no decision and said nothing purporting to interpret the said article,” he said.