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Wednesday, August 12, 2020

High Court judge says decision on Nchito tribunal not influenced by PF SG ‘s comments

General News High Court judge says decision on Nchito tribunal not influenced...

High Court

THE Lusaka High Court judge Mwila Chitabo has said that he has vacated his earlier decision to grant leave to commence judicial review because of binding doctrine of stare decis and not because of comments by Patriotic Front (PF) secretary-general Davis Chama.

Stare decis is a doctrine or policy of following rules or principles laid down in previous judicial decisions.

Mr Justice Chitabo said his decision is based on this principle of stare decis and binding superior precedent which is necessary in the judiciary hierarchy system of justice.

“I wish to state that the ex-parte order has been vacated as indicated above, not because of threats and intimidation by PF secretary-general but on the binding doctrine of stare decis,” he said.

Mr Justice Chitabo said he had taken judicial notice of Mr Chama’s statement in the media.

He observed that it is wrong in principle and conducive of discord, uncertainty and inconsistency for any lower court to adopt such a stance towards a senior court, adding that by doctrine of stare decis, he is bound by the decision of the Supreme Court.

Mr Justice Chitabo noted that proceedings for judicial review cannot lie against the President arising from setting up a tribunal to investigate the conduct or misconduct of a constitutional office holder.

He said the function of the judicial review is not to determine the merits and demerits of the cases in court but to examine the process of decision-making.

Mr Justice Chitabo noted that most of the matters in the tribunal’s terms of reference touch on cases that are on appeal in the High Court and Supreme Court.

“Some of the factors are basically, irrationality, Wednesbury unreasonableness or and illegality. Consideration of rules of natural justice is a component of that process,” he said.

Acting Attorney General Abraham Mwansa said in summons to discharge leave to commence judicial review that the President has unfettered power to appoint a tribunal to inquire into the alleged conduct or misconduct of the DPP.

Mr Mwansa said the tribunal was appointed based on a complaint raised by Brebner Changala and not complaint initiated by former deputy minister of Finance Newton Nguni.

He noted that Mr Nchito’s protection in terms of immunity as DPP relate to matters done in good faith adding that the stay of the tribunal and his subsequent suspension amounted to an injunction which is contrary to the law in accordance with section 16 of the State Proceedings Act.

Mr Mwansa noted that the High Court has power to discharge its earlier order for leave to commence judicial review adding that Mr Nchito’s application was likely to fail.

In an earlier ruling, Mr Justice Chitabo stayed Mr Nchito’s suspension and the setting up of a tribunal to investigate his alleged professional misconduct.

He made the ruling after Mr Nchito applied for leave to commence judicial review on President Lungu’s decision to set up a tribunal to probe him.

He said the application to commence judicial review raised issues that border on the protection and preservation of the office and security of tenure of the DPP.

58 COMMENTS

    • The economy is shit and everyone is worried about that useless court . Kwacha is weak , please report about the economy not useless court cases . Just know there are playing games for people to forget about the economy and consitistion .

    • Nchito ya sila.. You forged a signature its a serious criminal offence.. . U kikcked out DPP mukelabayi Mukelabayi . Yourself and Membe. You remember kashiba bulaya.

      Dont be mislead by thses nega negans that wants to politicise this matter. We dont need a vote from nega nega in order to win. Nega neganns need our vote.

    • Umwenso Ba judge Chitabo, fear of being fired. Stand your ground if you are convinced the decision you made is right. We know the ailing Lungu is behind the pressure for you to rescind your decision. The judiciary is supposed to be independent and nt succumb to pressure from party cadres

    • Bwana Chitabo….! when did you realize that stare decis does actually exist, after you were reminded by the AG? Or is it that at the time of ruling for a stay you were also suffering from “malaria” and you did not realize that stare decis actually exists.! this is the criminality that, as Zambians, we are not happy about. Judges like you are messing up our justice system. You need to be flushed out. You and the likes of you are nothing but criminals trying to save each other. You time is up and you have nowhere to hide.

    • A coward hyna lives longer. Protect you job mwana. You have a family to look after. . The nega negans have their own interest explains why they want to call you names.

      If you lose yo job hh wont employ you. He will never rule zambia. Besides he would give the job to that widow as minister of Justice.

      She worked a lot for him durring 20 january 2014 elections. Congrats Chitabo

    • Infact Davies Chama should be fired and charged with treason. He is instigating PF cadres to attack justice system. Mutembo’s case(s) has nothing to do with PF party. Why did a SG has decided to take over government and Ministry of Justice affairs? Judge Chitabo must sue Chama for saying that he is always the one handling Mutembo’s cases, hence corrupt.

    • Fyanta mbuzi

      You are spot on. Nega Negans can hang in shame. They were agaist Sata appointing Nchito ,they have changed the goal post, no wonder we dont take them seriously .

  1. In kitwe,we all will not tolerate nonsense frm any angle,president edgar lungu is a man of his words,and will not interfere in the judiciary

  2. This judge has turned this case into a fanatical charade! They should do their research before passing judgements. This is turning the judiciary into a circus by been stretched in all legal intricacies. What does science say, all forces have an equal but opposite reaction(stand to be corrected)- We’ll we’ll savour the drama!

  3. The same Judge whose earlier judgement was being hailed as brilliant and brave is now public enemy number one and a coward. For some parties’ cadres, you are only wise if what you do or say advances their political agenda. Pathetic!

  4. I have said this before and I will repeat myself again, some of the Zambian judges are bloody useless and very dull, Chitabo is one of them. The Zambian judiciary needs total cleansing. No wonder PF SG said what he had to say, he knew this judge is a “chipuba”.

  5. And This So Called Laz President Chisanga Was Suporting Blinding.We Said Before LAZ Is A Political Party

    • @ Chikombe Simon

      I think you are just dull Simon, and yo dulness came as a result of the curse which yo grandmother pronounced on you before u were born.

    • LAZ is full of dull lawyers, if not JUST a cartel of criminals. On matters of public interest that require them to render advice to government and the public, they go into hiding. But in situations where their criminal colleagues are being exposed for criminality, LAZ don’t waste time to come out to their aid…..Bunch of criminals, that’s what LAZ is.

  6. The PF Secretary General must be cited for contempt of court over the contemptuous remarks he made against Judge Chitabo and the DPP.

  7. Lungu has an “explosive cocktail” of diseases; HIV and AIDS, rotten liver and kidneys, cancer, alcoholism, and the mixology of diseases goes on and on. Lungu is a moving sarcophagus. Stop him from wasting national resources there in South Africa. Self-inflicted tragedy and cataclysm.

  8. Yes, LAZ is a rotten opposition political party and, henceforth, must be related to, must be treated, as such! Such language, such uncouth legalist language from Chisanga!

  9. Instead of spending more time on arresting the economy which is in mess but busy cleaning the way for RB to be cleared of his sins.

    • Ironic that under the same RB you condemn, the economy was doing much, much better. If anything, if you are truly concerned with the performance of the Zambian economy, you should be begging RB to take back the Zambian presidency.

  10. The bottom line is that the constitution does not give foolish Mutembo Nchito any immunity from criminal or civil liability better still from being tried on a tribunal, as if he is a President, but only gives him protection and security of tenure! I thought he is a seasoned Lawyer with a rich CV of prosecuting atleast two former presidents Op Chief and the famous Zamtroop saga, Ministers and numerous high ranking and senior government officials as well as CEOs from parastatals most of which have been convicted! Surely, can a man of that back ground develop cold feet to appear in a Magistrate Court, better still the civil hearings of a tribunal with Nchima, Kapungwe, Mumembe, Chisanga as defence Lawyers? May be he is conteplating on dismissing his lawyers again and enter a NOLLE even at…

  11. Even a lay person will suspect that there is something really wrong with our Judiciary. This nincompoop of a judge is a disgrace to the legal fraternity and an embarrassment to the educated elite. Why succumb to political pressure instead of being brave, the president must be challenged if at all there is political pressure emanating from one RB who seems to be pulling the strings to have his criminal cases closed. No one is supporting the DPP; if he has committed misdemeanors or indeed abrogated the law in fixing and protecting his friends, the law should be applied on merit. The precedent being set now is very dangerous and an affront to our democracy were even kaponyas can threaten a judge and force him to reverse a ruling. Shame!!!

    • RB’s case that was already going nowhere despite the best efforts of this disgraced mazdumbo to cook up evidence? The same mazdumbo who ignored court orders that allowed RB to travel abroad out of pure spite and malice today is now a hero even to UPND supporters? It is very interesting now to see the likes of the Watchdog defending Masebo and Nchito when all you have to do is look at their archives to see just how much they castigated these two shady characters. They are now performing the same gymnastics that led Membe and the Post to be praise singers of Sata after years of telling the Zambian public that he was unsuitable for the presidency.

  12. Those with eyes can see.Someone makes noise against the judiciary and the version of the episode changes in their favor.A big fish is calling the shots to pave way for an acquittal at all costs.

    • The Wednesbury principle — (Associated Provincial Picture Houses Limited v. Wednesbury Corporation [1948] 1 K.B. 223; [1947] 2 All E.R. 680, ).

      The ground on which the courts will review the exercise of an administrative discretion is abuse of power, e.g. bad faith, a mistake in construing the limits of the power, a procedural irregularity or unreasonableness in the Wednesbury sense . . . i.e. unreasonableness verging on an absurdity.

      (Chief Constable of North Wales Police v. Evans [1982] 1 W.L.R. [1982] 3 All E.R. 141, p. 143, ……it is no part of that purpose to substitute the opinion of the judiciary or of individual judges for that of the authority constituted by law to decide the matters in question”

      Didn’t His Lordship Judge Chitabo do Adminstrative Law at YUNZA?

  13. I am a law student studying here in Canada at one of the most reputable university. I would like to hint what will happen should Mutembo Nchito appear before these Ngonis making up a tribunal committee. Nchito will opt to refuse to answer to any of the questions arguing that the constitution gives him immunity therefore he is not answerable or does not need to offer an explanation to any decision he made as a DPP. This piece of law is grounded on the fact that constitutional office holders ought not to be tried or questioned over his or her actions related to that office. The tribunal has failed before it has even kicked off.

    • Vodka. I doubt very much if you are studying g law as you claim.
      Remaining silent is a right that an accused person may opt for but this does not mean that the trial is halted. Trial proceeds and the accused may or not be found guilty. But in this case Mutembo tactics of hiding in legal gymnastics is just telling even those who earlier thought he is being victimized to believe he is hiding something. So delaying gymnastics are simply pulling him into the ditch. Every law student knows that article 58 allows the President to remove a constitutional holder without giving reason or by appointing a tribunal. So where is the argument of Mutembo apart from a show intransigence. Chitabo miscalculated and knows it. There is article 58 with 2 precedents. Mutembo here is an opportunity.

    • Its good u have said u a law student.i would have been very worried if u said u are a lawyer.its chaps like you with limited knowledge who are busy misleading Zambian.in Zambian constitution no one is above the law,may b u reading the Canadian law.Article 58 of our constitution is very clear when a issues of misconduct is raised against the DDP.

    • @ Vodka We will still make our submission and recommendations to the President after adducing evidence from what the petitioners and witnesses statements and testimonies.Just like in a normal court an accused may elect to remain silent or testify and that is up to him. If opts not to say anything Infact its more to the advantage of the Petitioners in that case.So don’t portray your lack of legal knowledge here with your Canada degree just come here at UNZA and get your degree problem is you aren’t qualified to be admitted at UNZA thus going to Canada .The only option Mutembo now has is to resign on morale ground or opt for early retirement so that he goes with some package period.

  14. Lets now have a dpp who is not corrupt. Nchito was likely to be bought by one RB and have all his cases dropped. Lungu is sharp he saw that already. You can’t have a dpp who is prone to corruption. Let their be sanity in the office of the dpp for the sake of confidence. How would you feel if dpp drops all cases for mmembe or RB just because he comprised his position? Viva tribunal viva lungu

  15. JUDGE’S RELATIONSHIP WITH THE EXCUTIVE WING OF GOVT HAS ALREADY BEEN DAMAGED. THE PROBLEM IS THAT HE THOUGHT HE WAS STRONGER WITH THE SUPPORT HE GIVE TO THE CARTEL. U CANT GO ON GIVING SANCTUARY TO THE CARTEL AMD THE CLIQUE ALL THE TIME.
    HE WAS UNABLE TO READ THE SITUATION.

  16. In traditional society an elder never falls; you see them pretending they intended to get down and look for something on the ground. This is the state of the country today. Using all sorts of technical terms to explain giving in. What a charade this is becoming. Although a little different, this might end up as a Chikopa circus of sorts. Where is Chikopa?

    • Very pertinent question, the issue of the Chikopa saga would have had people up in arms in a normal country but nah not here in Zambia, we are more focused and fine tuned to more relevant and pressing issues like what time does my local pub open and how many times can I commit adultery today.

    • Guess who was the catalyst behind the whole Chikopo saga and the resultant waste of tax payers’ money – Nchito and Membe!

  17. I said it yesterday and I say it again today. …its time for Mutembo to face his accusers just like others faced him. Let him just man up and face Ng’uni and others unknown. Unless he is afraid their accusations are well buttressed in fact and evidence and he can only go down. Even then, real men make a stand for what they believe is right and fight to the bitter end….obstructionism only raises the spectre of his guilt and make us believe that all this charade has been a foolhardy venture to raise his own petard

  18. There us nothing wrong with the judge, his first decusion was based on an ex parte application. But after the Attorney General’s appeal an inter parte hearing was held where the government side presented its case and legal issues. So the judge reconsidered his decision based on the arguments. So mutembo’s argument did not hold any water unfortunately. So let him face the tribunal. It will be interesting to hear what Mmembe and his Past news say of this ….kikikiki

    • @chief actually chief it sounds more like the opposite of your claim. The judge said his hands are tied by a previous decision. It sounds more like the AG had a weaker case. The supreme court is not bound by any precedent and can issue a different ruling based on different circumstances so this drama certainly continues. I am loving every second of it. I actually think in the end another tribunal will be set after all these pending cases are disposed of. Or Lungu will have to redefined the terms of the tribunal. I am not on either side I think both sides are motivated by reasons other than the merits of justice.

  19. This judge has tried to use all sorts of language to confuse us but the fact is he gas done what Davis Chama warned him about we are not stupid cadres are pushing court officers around and yet the president is a lawyer?

    • But of course it is ok for the accused former DPP to show contempt for courts by walking out during a hearing or ignoring court orders such as he did regarding RB’s travel to the inauguration of Uhuru Kenyatta?

  20. I beg your pardon your worship/honor, I didn’t get your clearly did you say principle of “stare decis” or “scare tactics”?

    • It is “My Lord”. The terms you have used apply to magistrates.

      Stare Decis means ‘staying the same’. Judges make law, and some would say it is not law until it is declared so by the court.

      The principle is that courts operate on basis of hierachy. The lower courts without question HAVE to obey what the superior courts ruled unless the matter can be ‘distinquished’.

      Stare Decis binds the lower courts although our Supreme Court is not bound by its previous rulings.

  21. He must have had malaria! One wonders how many innocent people are languishing in Zambian prisons because of malaria influenced judicial decisions!

  22. STARE DECIS. Let the decesion stand. Once again the learned judge has shown why it takes firm understanding of the law to be a judge. He issued a STAY ex parte previously so the government could be given a chance to present a response. In as much as he has found the responses presented by the AG not convincing his hands are tied by a decision made in either a court higher than his or atleast at the same level as his. Now “WRIT OF CERTIORARI” will almost certainly be granted becuase of the seriousness of the precedent about to be established here. Come monday the STAY will be re issued by the supreme court and this case will be argued in appeal. I don’t care much for Nchito but I think he has a solid case. Read through the judges findings. Supreme court for sure here we come! Love the…

  23. As if the removal of the DPP will put food on the table of millions of Zambians living on less than $1.00 per day.
    Misplaced priorities.

    The problem is that the Zambian presidency has too much powers, Its like he controls everything, all the 13 million people are under his thumb.
    Solution Only a good constitution will change this like Nawakwi said, the only thing that will make a good president is a good Constitution.

  24. Trying to be as objective as possible. I don’t see how the government prevails if Nchito appeals. For the president to set up a tribunal with an aim of examining issues that are currently before the courts is against “THE POWER TO DISPENSE NATURAL JUSTICE THAT IS INHERENT IN THE REASON FOR THE EXISTENCE OF THE JUDICIARY”. I f the government prevails in this case then anytime the executive feel an issue is not going there way or not fast enough in the courts the president can set up a tribunal against any other constitutional office holder. The power of the judiciary itself is at stake. Lets see how they rule. Nchito please appeal. Mutembo Nchito CHECK!

  25. Mwila Chitabo was either DRUNK, corrupt or self serving, it is folly for him to quickly U-TURN on the decision; it paints a very bad picture of our Judiciary; I KNOW mwila chitabo very well he is usually drunk, i thought he had changed: i now i understand why they say old habits die hard;

    I will ask youngman Nchito to brave – nothing lasts forver – thedark cloud will pass.

  26. i want to commence criminal proceeding against Chama Davies but ive no mch cash.Country men and women ,am cailing upon all those who are willing to support me chamption this call to call me on 0974 385713.Come monday Davies Chama must be picked for commiting this serious office.he ll regret the day,he ws born.

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