THE Lusaka High Court has thrown out suspended Director of Pubic Prosecution Mutembo Nchito’s application for judicial review over the legality of the Annel Silungwe Tribunal set up to investigate his alleged abuse of authority of office because there is nothing that can upset the current proceedings.
Justice Petronella Ngulube ruled that according to Section 16 of the amended Constitution of Zambia Act Number 1 of 2016, all matters commenced under the old law were to proceed and be decided upon as such.
And Justice Ngulube expressed disapproval with what she described as forum shopping when Mr Nchito indicated that the Constitutional Court was the only court which could determine and overrule a Supreme Court ruling, and showed disrespect in seeking leave to commence judicial review proceedings before the High Court.
“I have difficulties in appreciating why the applicant sought judicial review from this court on a matter which he clearly contends must be determined by the Constitutional Court.
“I find that this indeed is an act of forum shopping by Mr Nchito, SC which courts frown upon,” she said.
Justice Petronella Ngulube ruled that according to Section 16 of the amended Constitution of Zambia Act Number 1 of 2016, it provided for the transition of all matters commenced under the old law to proceed and be decided upon as such.
“By virtue of the provisions of Section 16 of Act 1 of the Constitution of Zambia 2016, the Tribunal still has the mandate and power to continue sitting and determine issues before it.
“As such, it is erroneous and misconceived for the applicant to refer to it as a defunct tribunal,” she said.
Justice Ngulube made the ruling yesterday following an application in an attempt to halt proceedings of the Tribunal that only commenced sitting on February 27, 2016 after the Supreme Court threw out an application for an injunction to stop the investigations.
Mr Nchito, last week petitioned the Tribunal in the Constitutional Court, and also applied to the High Court for Judicial Review against the proceedings of the tribunal set up to probe allegations of abuse of authority of office against him in his discharge of duties as DPP.
Justice Ngulube charged that the Tribunal stands as a legal body mandated and empowered by the constitution to carry its functions as prescribed in its terms of reference, and would not be interrupted by any misconceived perception outside those provisions.
Mr Nchito applied for judicial review proceedings to act as a stay against the operations of the tribunal which he said had lost its mandate with the assenting to of the new Constitution.
But Justice Ngulube explained that the State through the Attorney General Likando Kalaluka SC cited the Supreme Court ruling of 2016 which provided guidance for the mandate and powers of the Tribunal.
“The Learned Attorney General submitted that the Court was bound by the decision of the Supreme Court and should give the Tribunal an opportunity to carry out its investigations without fragmentation,” she said.
The Justice Ngulube explained that access to judicial review was not a matter of right, but rather subjected to the discretion of the court for the purpose of eliminating hopeless applications without the need for a substantive inter-parte judicial review hearing.
She explained that before her court, however was a matter of contention against the Constitution of Zambia on the relationship of the repealed law compared to the Amended Act Number 2 of 2016.
“I must state that the remedy of judicial review is not concerned with the merit of the particular administrative or quasi judicial decision but only with the decision-making process to ensure that discretionary power is not abused and that the decision maker acts within the confines of the law,” she said.
Justice Ngulube said the application failed because it lacked merit in challenging the Tribunal’s interlocutory ruling nor any case fit for further investigations.