.NCHITO

BY DELPHINE ZULU –

SUSPENDED Director of Public Prosecutions (DPP) has asked the Court not to discharge a stay granted in his favour to block his Tribunal on grounds that the State had failed to prove that his case was frivolous.
Mr Mutembo Nchito in his response to arguments by the State said the High Court was on firm grounds when it granted him leave to commence judicial review and that the State should have shown that his application had no merit.
“We submit that this is a proper case for judicial review and for the court to hold full hearing, so that the applicant is given a chance to establish that the decision given to stay can be orally argued by both parties,” he said.
Mr Nchito stated that there was a difference between staying the proceedings and curtailing proceedings.
It should be noted that the court had not been invited to curtail the Tribunal sittings but merely to give effect to the rules of natural justice and fairness.
He said most of the cases relied upon by the State in their arguments in asking the court to discharge the stay granted, were out of context and did not bind the court as they were inapplicable.
In this matter, High Court Judge Mubanga Kondolo had granted the applicant leave to commence judicial review against the State and ordered that the Tribunal be stayed pending the outcome of the case.
In his application for judicial review, Mr Nchito was challenging the Tribunal ruling which allowed hearing in camera, the two retired judges to continue on the panel, as well as allowing the President to continue adding more charges.
The State, however, submitted to discharge the stay obtained by Mr Nchito investigating his conduct, because it was against the law that prohibited the granting of injunctions against the State.
Attorney General Likando Kalaluka, in the arguments to discharge the order granting leave to apply for judicial review by Mr Nchito, said an injunction obtained by the applicant was against the Republican President.
“From the foregoing, we urge this Court to take cognisance of the fact that the order to stay the decision of the President to establish the Tribunal and suspending of the DPP from performing his duties as such flies in the face of the laws that prohibit granting of injunctions against the State,” Mr Kalalula said.
He also urged the Court to disregard the Siavwapa judgment in the case of Mutuna and Another Vs Attorney General which the applicant is relying on for illegality because it was not binding on this Court.