The Supreme Court has tossed out all objections by suspended Director of Public Prosecution Mutembo Nchito’s against the Tribunal constituted by President Edgar Lungu.
The Court has further ruled that judicial review should not have been granted to Nchito on an interlocutory matter.
Nchito had objected to the composition of the Tribunal and the manner it had decided to proceed. In passing judgment, Chief Justice Ireen Mambilima, sitting with Deputy Chief Justice Marvin Mwanamwambwa and Supreme Court Judge Evans Hamaundu, said entertaining an application for judicial review of an interlocutory decision of an administrative tribunal, was undesirable.
Chief Justice Mambilima said there were a number of reasons for the ‘‘undesirability’’ of subjecting interlocutory decisions of administrative tribunals to judicial review and that courts should only intervene when it was absolutely clear that the applicant would
suffer a fundamental failure of justice.
The three judges said it was their view that to protect constitutional office holders from unfairness in the process of enforcing investigative constitutional procedures for their removal from office must be balanced with the equally important need not to make the said investigative procedures practically untenable or unduly.
The Supreme Court explained that as much as constitutional office holders must be afforded avenues for ensuring that they are treated fairly by investigative tribunals, a balance should be struck to ensure that inquiries by administrative tribunals into the conduct of constitutional office bearers are not made impossible or unduly fragmented through interlocutory proceedings.
In the High Court, Nchito was granted leave to commence judicial review after the Silungwe tribunal found no merit in three preliminary issues he raised before the commencement of the hearing.
Nchito in the preliminary issues at the tribunal argued that the terms of Reference in President Edgar Lungu appointed tribunal were incompetent, that the tribunal should not be held in camera and that two of the members of must recuse themselves on grounds of bias.
In his application, Nchito wanted the granting of the judicial review to also operate as a stay. Mr Nchito argued that in seeking judicial review, he was simply trying to ensure that his tribunal hearing complied with open justice principles.
After Nchito was granted judicial review, the State appealed to the Supreme Court arguing that the investigate tribunal are not amenable to judicial review and that the application for judicial review had no prospect of success.
During the sitting of the Supreme Court yesterday, it was ruled that an interlocutory ruling of a tribunal in dispute is not subject to judicial review and therefore the High Court erred when it granted an application for a judicial review to the suspended DPP.
President Edgar Lungu constituted the Silungwe tribunal to probe the alleged misconduct of Nchito in his office as DPP.