The state must not abuse the court process, Moses Chitambala, representing Milingo Lungu, the provisional liquidator of the Konkola Copper Mines, KCM, has told the Constitutional Court. Chitambala was responding to an application by the state to dismiss the petition in which his client, Lungu, is challenging the revocation of the immunity granted him by the previous Director of Public Prosecution, DPP.
“It is therefore contended on the part of the Petitioner that the First Respondent’s application seeking to dismiss the petition on grounds that the current Director of Public Prosecutions has made a decision purporting to revoke the indemnity agreement entered into with the petitioner is clearly an abuse of the court process as the issue of whether or not the current Director of Public Prosecution has any power to revoke the indemnity agreement is an issue that stands to be determined within the purview of the matter before this honourable court”, Chitambala said.
Robert Simeza, State counsel, representing the state, applied to dismiss the petition by Lungu in which he is challenging the legality of the decision by the current DPP to revoke an indemnity agreement entered by his predecessor.
“This is the First Respondent’s motion to dismiss the petition on the grounds that following the revocation of the purported immunity by the Director of Public Prosecution, the continued hearing of this petition amounts to an academic exercise. It is our submission that following the decision by the Director of Public Prosecution regarding the purported immunity granted to the petitioner the issues in this petition are now moot. You can save the court’s resources and indeed the taxpayers’ money by avoiding in engaging in an academic exercise”, Simeza stated in the application by the state.
However, exposing what appeared to be a contradiction on the part of the state, Chitambala argued that “the First Respondent’s position in this matter is that the DPP had no power to grant indemnity. The simple question one gets to ask and which this court may answer is how can the First Respondent move from that position now to a position of seeking to dismiss the petition on grounds of revocation of the indemnity agreement he asserts does not exist?”
Chitambala told a five-member panel of constitutional court judges that the case was so important so much so that to entertain the state’s application to dismiss the petition would lead to the loss of an exceptional opportunity to settle a significant legal question.
“Suffice to say that the issues that remain to be determined before this court are of fundamental public importance which this honourable court ought to determine in order to settle the question at law”, Chitambala submitted.
A few months ago, when news broke out that the former DPP had granted Lungu immunity, some members of the ruling UPND mounted a campaign against her accusing her of unfounded allegations suggesting that she was shielding alleged criminals from prosecution. At a press conference that took place a few weeks later, President Hakainde Hichilema denied the existence of any such immunity while promising that something would be done about it.
Shortly after, a new DPP was appointed whose first assignment, as stated in a press statement from the Prosecutions Authority a day after he assumed office, was to revoke the indemnity agreement. The announcement led to a chorus of comments in various media outlets and social media platforms contrasting the remarks by the President and the decision of the DPP as several social media commentors made a joke of what immunity agreement was revoked if there was none in existence in the first place.
The question has now made it in the courts of law. The Constitutional Court has set March 31st, 2023, to rule on the application by the state to have Lungu’s petition dismissed