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.