Nchito fights for judicial review

SUSPENDED Director of Public Prosecutions Mutembo Nchito has asked the High Court not to entertain the State’s application to discharge the order of leave he was granted to commence judicial review over the tribunal ruling which dismissed his preliminary issues.

In his arguments in opposition to the State’s application to discharge the order granting leave to commence judicial review, Mr Nchito has argued that the State had not shown that the issues he had raised would fail.

When Mr Nchito applied for judicial review, he complained about the Annel Silungwe tribunal’s decision that Justices Mathew Ngulube and Ernest Sakala should not recuse themselves.

The Annel Silungwe tribunal was constituted by President Edgar Lungu to investigate Mr Nchito’s alleged incompetence and professional misconduct.

Mr Nchito also complained about the tribunal sittings being held in camera, the terms of reference and the President adding charges after the tribunal had been set.

Lusaka High Court judge Mubanga Kondolo granted him leave to commence judicial review.

But the State submitted that Lusaka High Court should dismiss and set aside the leave to commence judicial review granted to Mr Nchito because it is against the law.

Attorney General Likando Kalaluka argued that a judicial review cannot be used to curtail the processes of an investigative tribunal.

Mr Kalaluka said the tribunal’s decision to dismiss Mr Nchito’s preliminary issues was rational and was arrived at after the parties were heard.

Mr Nchito said for the court to grant him order of leave to commence judicial review of the tribunal rulings, it was satisfied that his application was not frivolous and not vexatious.

“In granting leave, the court had to satisfy itself that matter of substantial importance had been raised which required a full inter-parte judicial review hearing.  It is clear therefore that since this honourable court granted the applicant leave to commence judicial review, the court determined that the applicant’s application was neither frivolous nor vexatious and that it was fit for further investigation at a full inter-parte hearing,” he argued.

He said for the court to discharge the leave, it should have to satisfy itself that it was wrong to grant it in the first place and that the questions raised on which it was granted the leave are frivolous and vexatious and he was not  likely to succeed.

Mr Nchito contended that the State had not shown that all issues he had raised would fail.

Mr Nchito said Order 53 rule of 14 (4) of the rules of the Supreme Court provided mandatory requirements for the State to show in order for the order granting leave for judicial review ex-parte to be discharged.