FOLLOWING an urgent application by Acting Attorney General, Abraham Mwansa to have the Judicial Review granted to Mutembo Nchito be discharged, Judge Mwila Chitabo has thrown out Mutembo Nchito’s application.
The Order that reinstated Nchito to his position also falls away.
The members appointed to sit on the Tribunal are expected to be sworn in by the Chief Justice Irene Mambilima.
Mr Nchito was seeking a declaration that President Lungu’s decision was unlawful as it contravened regulation 6 of the NPA Act number 34 of 2010 and a prohibition to restrain the President from otherwise interfering in the operations of the Director of Public Prosecutions office.
Yesterday, Judge Mwila Chitabo had overruled President Edgar Lungu and reinstated embattled Director of Public Prosecutions (DPP) Mutembo Nchito who was suspended on Tuesday for alleged professional misconduct and impropriety.
Judge Chitabo, who also presided over the Chongwe arrest of Mr Nchito, had signed an order prepared by Nchito and Nchito law firm and ruled that the decision of the President to set up a tribunal against the DPP and his suspension, including all other decisions incidental hereto, be stayed until after the hearing of the summons for judicial review hearing or until further order.
Judge Chitabo has stayed the Annel Silungwe Tribunal appointed by the President to probe Mr Nchito who has been accused of an array of offenses including forgery and fraud.
Mr Nchito had been granted a stay pending an interparte hearing scheduled for Monday 23 March 2015.
Mr Nchito had argued that the decision by President Lungu to suspend him and constitute a tribunal should be quashed because it attempted to delve into issues that were subjudice for contravening the National Prosecution Authority Act number 34 of 2010.
In particular, Mr Nchito felt that the President was interfering in the operation of his office and wanted damages for misfeasance in public office.
Presidential spokesperson Amos Chanda when contacted for a comment on the Judge’s decision to halt the tribunal from South Africa, declined to comment but referred the author to Articles 56, 57 and 58 of the Constitution.
Article 58 of the Constitution spells out the powers of the Head of State to remove the DPP from office without giving any explanation and if the President considers that the question of removing a person holding the office of the DPP from office ought to be investigated, then he shall appoint a tribunal which shall consist of a chairman and not less than two members who hold or have held high judicial office.
In an order granting leave to apply for judicial review, Judge Chitabo directed that the tribunal, suspension of Mr Nchito and other decisions made by President Lunge had been stayed.
Mr Justice Chitabo had set March 23 as the date for inter parte hearing. “It is hereby ordered that the application be allowed and that the said applicant do have leave to apply for judicial review as aforesaid.