MUTEMBO Nchito has again returned to the Supreme Court with the same arguments against the Annel Silungwe Tribunal currently sitting to probe his alleged abuse of authority of office, which court earlier dismissed a similar appeal a few weeks ago.
This was in response to a ruling by High Court Justice Petronella Ngulube who charged that Mr Nchito, SC, by taking the matter to the Supreme Court he was merely ‘‘forum shopping’’ after he even suggested that only the Constitutional Court had the jurisdiction to hear his petition.
Mr Nchito has so far lost two applications, including one at the Supreme Court, over the tribunal established to investigate allegations of abuse of authority of office in his discharge of duties as DDP.
He has appealed to the Supreme Court against the High Court judge’s decision to throw out his application for judicial review, citing lack of consideration of Section 16, Amendment Act no. 2 of 2016 that repealed the provisions for an ad hoc tribunal to probe him, as it transferred that role to the Judicial Complaints Commission.
“The learned puisne Judge erred in law and fact when she failed to have regard to the provisions of Article 267(3)(e) of the Constitution of Zambia as amended by Act Number 2 of 2016 which provides that where an institution has ceased to exist, reference to it is reference to the body which now performs its functions.”
He explained that the High Court judge relied on the case which was decided per incuriam and walking without taking into account the provisions of the Constitution as amended by the Constitution of Zambia Amendment Act Number 2 of 2016.
He charged that the High Court ruling was based on cases which had no relationship with the situation where the Constitution was amended to abolish a tribunal already in its proceedings.
He snubbed the findings that judicial review was not applicable in his current matter, arguing that the case cited of Attorney General vs Mutembo Nchito actually “held that judicial review must be allowed where fundamental injustice would be occasioned if not allowed”.
Ms Justice Ngulube on Thursday threw out Mr 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 was nothing that could upset the current proceedings.
The ruling was based on Section 16 of the amended Constitution of Zambia Act Number 1 of 2016, which provided for the transition of all matters commenced under the old law to proceed and be decided upon as such law.