MUTEMBO Nchito remains dismissed and that is final, the Constitutional Court ruled yesterday.
This is contained in a ruling delivered by Mr Justice Enock Mulembe on the ex-parte order to stay President Edgar Lungu’s decision to fire the former Director of Public Prosecutions (DPP) on recommendations by the Annel Silungwe Tribunal.
Mr Nchito had contended that he had been removed from office in contravention of the Constitution, Article 144, that provided for the removal of a DPP to be preceded by investigations by the Judicial Complaints Commission.
He had requested the court to sustain the stay without which he would suffer irreparable harm once his position was given to someone else.
But Mr Justice Mulembe said there was no merit to claim of irreparable damage and failure if stay was not maintained because the State would compensate the petitioner at the right time.
“He (Mutembo) argued that if interim relief was nor granted, he would have been removed from office in clear contravention of the Constitution.
“There is no merit in the petitioner’s claim that he would suffer irreparable harm. Clearly, it is possible for the State to compensate the petitioner if it is established in the final analysis that his claims have succeeded,” Mr Justice Mulembe said.
He said even the submission by the Attorney General Likando Kalaluka attested to the fact that should the petitioner succeed at the substantive hearing, any harm he would have suffered could be dealt with adequately in damages.
The judge said there was another matter concerning the legality of the tribunal that sat to probe the DPP’s misconduct before the Constitutional Court, which matter intertwined with the case before him, but was yet to be determined.
He explained that there were undoubtedly serious questions that require determination by the court, but that it first needed substantive hearing, but that the Constitution was the supreme law of the land, and everybody was bound by it.
He charged that public officials took oath and swore to uphold the Constitution in discharging their duties, and that the courts must come in to bring an illegal breach or violation of the supreme law to a screeching halt.
“Otherwise, impunity would render the cherished ideal and belief in the supremacy and sanctity of the Constitution one of mere academic pursuit.
“I find that the ex parte order to stay the President’s decision to dismiss the petitioner for the office of Director of Public Prosecutions cannot be sustained and is accordingly discharged pursuant to Order X rule 2(3) of the Constitution Court Rules,” he said.
Mr Justice Mulembe said because it was a matter of public interest, he would not make any orders as to costs.