A senior lawyer and State Council has maintained that former Director of Public Prosecutions, Mutembo Nchito will remain dismissed despite the temporal relief he is attempting to obtain from the Constitutional Court.
Speaking shortly after learning that Nchito had obtained an ex-parte Order to stay President Edgar Lungu’s decision to fire him, the lawyer said such an Order will be discharged at inter-party hearing.
“The Tribunal was appointed in March 2015 long before the Article 144 Mr Nchito is relying on ever came into existence”.
“That Article only came into existence on January 5, 2016. Section 14 (3) (e) of the Interpretation and General Provisions Act, Chapter 2 of the Laws of Zambia provides as follows:
“14. (3) Where a written law repeals in whole or in part any other written law, the repeal shall not-
(e) affect any investigation, legal proceeding, or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such investigation, legal proceedings, or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the repealing written law had not been made.” “The above simply means the Article 144 Mr Nchito is relying on cannot affect the Tribunal that was appointed long before the Article existed.”
“The correct law which applies to the Tribunal & everything it did is Article 58 of the Constitution of Zambia as amended in 1996.”
“That was the relevant law under which the Tribunal was appointed. No reference under that law is made to the Judicial Complaints Commission Mr Nchito is now insisting on.”
“Further, Section 16 (1) of the Constitution of Zambia Act No. 1 of 2016 states as follows:
“16. (1) Unless otherwise provided under the Constitution as amended, proceedings pending before court or tribunal shall continue to be heard and determined by the same court or tribunal or may be transferred to a corresponding court or tribunal established under the Constitution as amended.”
“There is nothing in Article 144 of the 2016 Constitution amendment to the effect that proceedings pending before a court or tribunal should be transferred to a corresponding court, tribunal, authority or procedure.”
“A practical example can be used to illustrate my point. The case on the interpretation of the grade 12 requirement was commenced in the High Court. The Constitutional Court only became operational whilst the case was still pending in the High Court but before the High Court delivered its judgment. The High Court went ahead & pronounced itself on the matter despite the determination of constitutional matters now vesting in the Constitutional Court in general terms. Was the High Court in want of jurisdiction when it pronounced itself on a constitutional matter relating to the grade 12 requirement? Hardly!”
“Lastly, it was not actually the President who fired Mr Nchito. The 1996 amendement provided that the tribunal inquires into allegations leveled against the DPP. Upon the conclusion of its business, the President had to act on the tribunal’s findings without discretion”.
“In essence, the decision to remove or not to remove a DPP was made by the tribunal even though the Constitution ‘pretended’ that the tribunal only rendered advice to the President & he then makes a decision.
This is to talk of mere philosophy. How was it advice if there was no discretion on the President to reject it? Could the President remove a DPP if the tribunal advised otherwise?”No.
“Could the President retain a DPP if the tribunal advised otherwise? No. Could the President elect not to follow the tribunal’s advice?”
” The President had no such option. In other words, the Constitution compelled the President to act on the so-called advice of the tribunal. The decision of the tribunal dictated that of the President”. “The President had no power on the tribunal’s findings & the unnecessary decision he had to make (pursuant to the ‘advice’ given) was merely accorded him because he is the appointing authority”. He said.