CONSTITUTIONAL Court judge Enock Mulembe is a close friend and ally of suspended Director of Public Prosecutions (DPP) Mutembo Nchito for whom he stayed the decision by President Edgar Lungu to dismiss him (Nchito), it has been learnt.
According to the law no judge can issue a stay or injunction against the state.
A complaint against Judge Mulembe has since been filed with the Judicial Complaints Authority for presiding over Mr Nchito’s application to stay the decision of President Edgar Lungu to fire the suspended DPP without declaring interest.
Robert Chabinga, a Zambian citizen has written a complaint letter to the Judicial Complaints Authority charging that Justice Mulembe had grossly misconducted himself when he proceeded to hear Mr Nchito’s application even though there was conflict of interest as he was a close friend and ally of the former DPP.
In a letter captioned: Complaint for removal of judge pursuant to Articles 143 and 144 of the amended Constitution Act No 2 of the 2016 against Justice Enock Mulembe of the Constitutional Court,’Mr Chabinga stated that Judge Mulembe as a close friend and ally of Mr Nchito should have declared interest in hearing the matter in order to preserve the sanctity of the justice system, especially the Constitutional Court.
He explained that the failure by Judge Mulembe to declare interest in presiding over Mr Nchito’s application constituted gross misconduct capable of being investigated in accordance with Articles 143 and 144 of the amended Constitution.
“Under cause Number 2016/cc/029 which matter was commenced by one Mr Mutembo Nchito in the Constitutional Court against Attorney General, Justice Enock Mulembe proceeded to hear this matter without declaring interest. Justice Mulembe is a very close friend and ally of Mr Nchito and he was expected to declare interest in the matter in order to preserve the sanctity of our justice system especially the Constitutional Court. This is gross misconduct capable of investigation against the judge in accordance with Articles 143 and 144 of the amended Constitution,” Mr Chabinga said.
Mr Chabinga said Justice Mulembe had equally exhibited incompetence ensuring Mr Nchito was granted a stay against the decision of the President.
He stated that Justice Mulembe granted an ex-parte stay in favour of Mr Nchito against the State, arguing that in terms of section 16 of the State Proceedings Act, Chapter 71 of the laws of Zambia, no such stay could be issued against the State.
Mr Chabinga said that the act of granting a stay against the State amounted to incompetence on the part of Judge Mulembe and he should, therefore, be removed from the Constitutional Court.
Section 16 of the State Proceedings Act Chapter 71 of the laws of Zambia states that the Court shall not in any civil proceedings grant an injunction or make any order against a public officer if the effect of granting the injunction or making an order would be to give any relief against the State which could not have been obtained in proceedings against the State.
The letter to the Judicial Complaints Authority by Mr Chabinga was copied to the President of the Republic of Zambia, the Chief Justice, President of the Constitutional Court, Deputy President of the Constitutional Court and Justice Mulembe himself.