THE State has challenged the ruling of the Lusaka High Court which allowed Mutembo Nchito to commence judicial review over decisions of the Annel Silungwe-led tribunal and has indicated intention to appeal against it in the Supreme Court.
The State feels that the tribunal, as an investigative dodys should not be open to judicial review.
Mr Nchito is contesting decisions of the tribunal which dismissed preliminary objections, including sitting in camera and recusal of members of the tribunal.
High Court judge Mubanga Kondolo dismissed an application by the Attorney General to discharge leave granted to Mr Nchito.
Judge Kondolo ruled that judicial review and other civil proceedings could not be employed to curtail proceedings.
Attorney General Likando Kalaluka submitted that entertaining judicial review “will set the 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.
And in an affidavit in support of ex-parte summons for an order for leave to appeal to the Supreme Court filed in the court yesterday, assistant senior State advocate in the Attorney General’s chambers, Murah Kapamba said the State is dissatisfied with the ruling.
Mr Kapamba said the application will not cause any prejudice to Mr Nchito as it is made on good faith to further the delivery of justice.
He said the State has a clear chance of succeeding on appeal in view of the proposed ground of appeal.
“I verily believe that this application will not cause any prejudice to the applicant herein as it made in good faith to further the delivery of justice and I crave the indulgence of this Honourable Court to grant an order for leave to appeal to the Supreme Court of Zambia,” he said.
In his ruling recently, 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 find that 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.
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.