LUSAKA lawyer Kelvin Hang’andu has appealed to the Supreme Court against the High Court’s dismissal of his petition over the decision by the Director of Public Prosecution (DPP) not to appeal the acquittal of former Republican president Frederick Chiluba.
Mr Hang’andu also wants the Supreme Court to stay execution of the ruling until the appeal was heard by the superior court because it was of the extreme urgency and needed determination within 30 days.
He said this in his ex-parte summons for leave to appeal to the Supreme Court and for stay of execution of the ruling in Lusaka yesterday.
Last week, Lusaka High Court Judge, Gregory Phiri dismissed Mr Hang’andu’s petition because it was improperly taken to court and that its cause was speculative in nature, form and bore an unclear cause of action.
This is in a matter in which Mr Hang’andu had petitioned the High Court over DPP Chalwe Mchenga’s withdrawal of the notice of appeal filed by dissolved Taskforce prosecutor Mutembo Nchito against the acquittal of Dr Chiluba.
Mr Hang’andu stated ,although, the DPP had the authority to stop the appeal against Dr Chiluba’s acquittal, he should have consulted the attorney general before doing so.
He said in his grounds of appeal the trial court misdirected itself in dismissing the petition because the appellant had neither executive nor administrative action taken or threatened against him in relation to Dr Chiluba’s case.
“The honourable court misdirected itself in dismissing the petition, on the ground that it was improper for the appellant to have found his cause of action on the mere fact of his being a Zambian citizen,” Mr Hang’andu said.
He said he could still prove his case on a balance of probabilities since even the uncorroborated evidence of a single witness was at common law sufficient to establish a civil claim.
Mr Hang’andu said the court misdirected itself by arbitrarily barring a genuinely filed appeal on behalf of the people of Zambia against Dr Chiluba’s wrongful or unfair acquittal that was deliberately misdirected in point of law.
He said his petition was too remote to sustain a challenge under Article 28 of the Constitution of Zambia was barring the citizens from questioning the State’s conduct of the criminal prosecution.
Mr Hang’andu said the foregoing circumstances and evidence set the Government above the Constitution and the Laws of Zambia or otherwise above the rule of law.
He said alternatively and without prejudice the private chamber hearing invoked to hear what at law ought to have been a hearing in open court by notice of motion on preliminary point of law was fundamentally irregular.
[Times of Zambia]