By PERPETUAL SICHIKWENKWE –
THE Lusaka High Court has discharged the earlier order granted to Director of Public Prosecutions (DPP) Mutembo Nchito to stay the decision by President Edgar Lungu to suspend him and constitute a tribunal to probe his alleged misconduct.

. Nchito

Mr Justice Mwila Chitabo said after considering a similar case which was handled by the Supreme Court, it was inevitable that the order he granted to Mr Nchito on Wednesday be vacated.
Mr Justice Chitabo however, said in his ruling yesterday that his decision to vacate the exparte order was not because of the threats and intimidation from PF secretary general Davies Chama but was based on binding doctrine of stare decis in  the Elias Kundiona versus the people case which was ruled upon by the Supreme Court.
“I have taken judicial notice of the Press communique by the secretary general of the Patriotic Front where direct threats were issued against me personally and my brother Chali, (the judge in charge).
“I wish to state that the exparte order has been vacated as indicated above, not because of the threats and intimidation of the PF secretary general, but on the binding doctrine of stare decis in the Kundiona case cited above” Mr Justice Chitabo said.
In that case, the Supreme Court held that since the tribunal process is investigative in nature, the judicial review cannot be used to curtail the tribunal’s investigative processes.
The Supreme Court further held that the role of the tribunal is to investigate and advise the President and the President acts on the advice of the tribunal without discretion.
Mr Justice Chitabo said that going by the Supreme Court ruling, proceedings for judicial review cannot lie against the President arising out of setting up a tribunal to investigate the conduct or misconduct of a constitutional office holder.
Mr Nchito on Tuesday applied for leave to commence judicial review to challenge the President’s decision which Mr Justice Chitabo granted and ordered that the same operates as a stay of Mr Lungu’s decision pending the determination of the matter.
The Attorney General’s chambers later swore-in an affidavit asking the court to set aside the order that was granted to Mr Nchito.