Chief Justice Ireen Mambilima
Chief Justice Ireen Mambilima

THE Supreme Court has thrown out an application by suspended Director of Public Prosecutions (DPP) Mutembo Nchito to stop the Annel Silungwe-led tribunal to probe him for alleged misconduct and impropriety.

This means that the tribunal which was appointed last year by President Lungu will now commence sitting.

Chief Justice Ireen Mambilima, who delivered the ruling on behalf of four other Supreme Court judges, said yesterday that the High Court erred by granting Mr Nchito a judicial review to restrain the tribunal from probing him.

Justice Mambilima said the tribunal should be allowed because it is merely an investigative tribunal intended to afford Mr Nchito a hearing on the allegations made against him.

“This is in line with the constitution protection of the tenure of office for the Director of Public Prosecutions as envisaged by Article 58 of the Constitution.

“The tribunal should be allowed because in our view, Mr Nchito did not establish any grounds that can be said to have made his application for judicial review so exceptional that without reviewing the tribunal’s ruling, he would suffer a fundamental failure of justice,” she said.

Justice Mambilima said the courts could have only intervened when it is absolutely clear that Mr Nchito would suffer a fundamental failure of justice and that if the court intervenes before the tribunal renders its final decision, there is a risk of the court straying into deciding on the correctness or merits of the preliminary issues.

She said in addition, allowing judicial review of interlocutory decisions of administrative tribunals would hinder them from efficiently conducting their administrative inquiries.

“In our view, the need to protect constitutional office-holders from unfairness in the process of enforcing investigative constitutional procedures for their removal from office must be balanced with the equally important need not to make the said investigative procedures practically untenable or unduly protracted,” Justice Mambilima said.

Earlier, the State had challenged the ruling of the Lusaka High Court which allowed Mr Nchito to commence judicial review over decisions of the Annel Silungwe-led tribunal.

The State felt that the tribunal, as an investigative body, should not be open to judicial review.

Mr Nchito was contesting decisions of the tribunal, which dismissed preliminary objections, including sitting in camera and recusal of members of the tribunal.

High Court judge Mubanga Kondolo dismissed an application by the Attorney General to discharge leave granted to Mr Nchito.
Judge Kondolo ruled that judicial review and other civil proceedings could not be employed to curtail proceedings.

Attorney General Likando Kalaluka, however, had submitted in the High Court that entertaining judicial review “will set the court on a path to either curtail the tribunal investigative process or purport to interpret article 58 of the Constitution”.

Mr Kalaluka at that time, argued that the decision made by the tribunal to dismiss preliminary issues, which stimulated the application for judicial review by Mr Nchito, were reasonable and were not so outrageous or in defiance of logic or of accepted moral standards.

In his ruling recently, Mr Justice Kondolo disagreed with the State that the mere act of subjecting the tribunal to the process of judicial review would result in curtailing its process or investigative process.

President Lungu appointed a tribunal to probe Mr Nchito on eight terms of reference that include alleged acts of impropriety.

The tribunal members are former chief justices Annel Silungwe, as chairperson, Ernest Sakala and Mathew Ngulube as members, and Mathew Zulu as secretary.

The tribunal has also been tasked to recommend whether Mr Nchito ought to be removed from office as a result of the allegations.

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26 COMMENTS

  1. Fix the cartel led by Mmembe and Kabimba who hijacked the judicial system in Zambia for their personal gain.
    The only issue is that the wheels of justice move slowly but they surely grind fine.
    Mmembe next.
    Watch this space.

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  2. What do you expect from the corrupt judiciary? The supreme court does not give the reasons for dismissing the judicial review. How did the lower court error? We should be availed the whole judgment to see the reasons advanced by the court otherwise it would be concluded that the executive had a hand in it.

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    • Surely the have advanced the reason which is the tribunal is not a trial but investigative to afford Mutombe to clear himself of allegations. Is this too much.

      The only surprise thing is why it should take almost 13 months to arrive at what was straight forward. This why many argue that High courts in Zambia should be subjected to time limitation to make rulings or orders.

      Other matters of whether Justice Sakala and Ngulube should sit on the tribunal are not only silly but outrageous aimed at killing the tribunal and embarrassing the Zambian front line cerebral in law.

      Mutombe wants just like his criminal friend everything is of Mmembe for Mmembe by Mmembe. Mmembe is next.

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    • Go and get the judgment if you desperately need it and read it to satisfy your ego. Weldone supreme Court!

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    • In the same way Mutembo was prosecuting retirees in open court so should be his tribunal.I still remember him giving a ka “made for the post photo smile” while hapeless retirees climbed the kasaranga truck.

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  3. Mutembo is being mistreated, let him come out in the open and be tried openly, this is what he and Zambians want!

    The courts have lost it!

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  4. This is the best New Year present I have ever received. The Supreme Court is right you cannot grant a restraining order against the state…it doesn’t happen….judicial review of the process or the substantive contents?….let this boy see how it feels to be brought before the judiciary when you feel you are innocent. But for him with 20,000usd a month, a national flag carrier, the Task Force hijacked powers where he believed he was bigger than the DPP, a usurped seat on National Milling company he proceeded to hound even innocent people destroying careers, marriages, lives….so please go defend yourself the highest court in the land has spoken we know you will want to appeal to Clifford Chance…have a good day…

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    • @emerson. The results of the tribunal (which are pre-determined), are subject to judicial review. And guess what? By the High Court! So, ECL will not suceed to remove the DPP? Only crooks are afraid of someone like Mutembo who is not afraid of them. The ‘innocent people’ Mutembo ‘sorted out’; Are you referring to Richard Sakala & Company who stole from the Zambians?
      Mutembo will be vindicated in the end. The wheels of justice turn slowly, but they do turn!
      Isn’t it strange that as soon as Mutembo was moved out of the way, RB got a dodgy acquittal (and the current ‘user-friendly’ acting DPP refused to appeal!). We know what is going on. You cannot succeed! Mutembo knows his law & will fight for his rights!

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  5. We the Concerned Zambians against a government of Mmembe for Mmembe By Mmembe wish to wellcome the honorable ruling by the Supreme Court of Zambia to allow the Tribunal Constituted to probe the alleged misconduct of the suspended Director of Public Prosecutions Mutembo Nchito , and hereby pray that the Process starts without any delays.
    In the same vein we eagerly await the Courts’ Decisions on DBZ and ZRA Tax issues involving Fred Mmembe. Let the Apologist ,Hakainde Hichilema, of known Tax Cheats, Bank Defrauders and Economic Saboteurs realize that the Justice being sought by the Zambians will soon be achieved. We wont allow Intellectual Impostors and Archaic manipulators whose blind ambition for power wants to perpetuate Mmembe’s strangle hold on the Sovereignty of…

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  6. Let the Apologist ,Hakainde Hichilema, of known Tax Cheats, Bank Defrauders and Economic Saboteurs realize that the Justice being sought by the Zambians will soon be achieved. We wont allow Intellectual Impostors and Archaic manipulators whose blind ambition for power wants to perpetuate Mmembe’s strangle hold on the Sovereignty of our government and its institutions. August 11, 2016 Mmembe and his proxies should fall.

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  7. mr Kalaluka, Sir, YOU are most definitely in ‘defiance of logic AND of accepted moral standards.’ Your decision was wrong and has delayed the removal of Nchito which the citizens pressed the gov’t to do.

    Your decision was most certainly a breach of our Constitutional and Human Rights. We have the rights to fair hearings, justice and our gov’t should hire a competent DPP.

    Now, without further ado, Let’s be having him, Super Mambilima, Woman of our heart!

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  8. Ba SM you have little knowledge of how your hero Mutembo works please let him face the tribunal. It will NOT be the first time a DPP has been brought to be questioned. I am not sure why you rushed to speak about a convict Richard Sakala. They had their day in court. He will have his day in the Tribunal. We respect his right to seek justice and on that we wish him well. Why are you blind to the role Mutembo played in the case of Mukelebai the late DPP who by the way was vindicated. So put aside emotion if its ‘predetermined’ one can argue all the cases the fat desk lawyer took to court where predetermined. The courts fear no one not even your friend Mutembo.

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    • @emerson. No one is saying Mutembo should not face the Tribunal. Can we have a fair, OPEN tribunal? Why is the state insisting on a secret trial when the accussed wants an open trial which will ensure that justice is seen to be done? Those judges Matthew Ngulube & Sakala have an axe to grind with Mutembo. Is this how justice works?
      You refer to Mukelebai tribunal where Mutembo was a witness, He had nothing to do with that tribunal being held in camera. Was he one of the judges who decided to hold that tribunal in camera?
      The fact of the matter is that tribunal rulings are subject to review by the High Court. He is well within his rights.

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  9. @MM thank you for agreeing that he will have an opportunity to be heard. RB, Xavier Chungu, Samuel MUSONDA (remember he even wrote him a letter) also “felt” Mutembo Nchito had an axe to chew with them yet he still prosecuted them. So at the time it was justice no? Please dont confuse his worry that the Tribunal not being fair and 2 that it should be heard in public. Please this is NOT a trial nor is the Tribunal a Court. The reasons advanced for having the matter heard in Camera ‘is for the sanctify of the office of DPP to be upheld NOT Mutembo. What does he fear he will be heard. Lastly on the late Hon. DPP Mukelebai please don’t be blind Mutembo is on record that he ‘told’ the late LPM to remove him because in his eyes the DPP was sympathetic to FTJ which was a lie and he knows…

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  10. @MM and Emerson why don’t we leave it to competent authorities to manage this matter. My understanding is that Mutembo exercised his legal rights to apply for judicial review and his application was granted. The State through the AG S.C appealed and the ruling was that the application be set aside. Against that backdrop the Tribunal can now resume sitting in camera. I hope this issue can be laid to rest once and for all. I am just concerned about the TORs for the Tribunal which include to make a finding on whether or not Mutembo should be removed from office I think that’s an act that can follow only after the hearing and its not for the Tribunal to decide.

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