Masebo loses bid for judicial review

The Lusaka High Court has thrown out an application for judicial review by Chongwe Member of Parliament Sylvia Masebo against her prosecution on two counts of abuse of authority of office because she failed to show that the decision of the Director of Public Prosecution (DPP) to prosecute her contravened or exceeded the terms of the law.

Masebo applied for a judicial review against the decision by the DPP to have her tried on two counts of abuse of authority of office.

In her application filed by her lawyer Robert Simeza, she sought an order to have the DPP’s decision to have her prosecuted on the two charges quashed.

She also sought a declaration that her arrest and criminal prosecution was an abuse of the court process.

Masebo claimed that the decision to prosecute her by the DPP was done in bad faith.

She also sought relief for damages for misfeasance in public office.

But in her ruling yesterday, High Court Judge Petronella Ngulube dismissed Masebo’s application for leave to apply for a judicial review with no order of costs.

She said this was not a proper case in which leave to apply for a judicial review could be granted.

Ms Justice Ngulube said Masebo did not raise matters which on face value presented impropriety on the part of the State, in particular the DPP in the discharge of her functions.

She stated that the DPP had the powers to undertake criminal proceedings against any person before any court in respect of any offence alleged to have been committed.

She further said Masebo’s chance of success would require an exercise of the court’s discretion in her favour.

This is in a case where Masebo is facing two counts of abuse of authority of office when she served as minister of Tourism and Arts.

Her charges are in relation to her decision to cancel hunting concessions and terminate contracts of employment of five Zambia Wildlife Authority directors between 2012 and 2013 without allegedly following laid down procedures.

The first count alleges that being a public officer as minister of Tourism and Arts, Ms Masebo abused her authority of office by cancelling the procurement process tender number ZAWA/DG/002/2/12 for hunting concession without following laid down procedures.

In count two, Masebo allegedly abused her authority of office by terminating contracts of employment for Zambia Wildlife Authority senior officers without following disciplinary procedures.

Meanwhile, ,  Masebo has asked the Lusaka Magistrates Court to refer her case to the High Court for constitutional determination in a case where she is charged with unlawful procession.

Masebo, through her lawyer Robert Simeza, raised preliminary issues and asked the court to refer her case to the High Court to determine whether her freedom  of movements were infringed or not.

The issues were raised when the case came up for opening of trial before Magistrate Lameck Mwale.

Mr Simeza in his application told the court that according to the indictment, Masebo in count one is charged with unauthorised procession pursuant to section 7A of the Public Order Act.

Mr Simeza said the charge was unconstitutional as it was contravening Article 22 of the Constitution which guarantees the protection of freedom of movement.

He said Section A restricts the accused person’s freedom of movement but Article 28 (1) of the Constitution specifically provides that a citizen shall not be deprived of his or her freedom of movement which includes the right to move freely.

Mr Simeza stated that his application was that count one should make a constitutional reference of the questions arising of this matter to the High Court for determination pursuant to Section 28(2A) of the Constitution.

He further stated that it was his clear understanding that it also provides for the two scenarios which when one observes the constitutional issues either of the party could refer the case to the High Court.

Mr Simeza said in that case the court was obliged to refer the matter to the High Court and it was mandatory.

He said Masebo’s count two had another case of escaping from lawful custody. It was their application that count two was not a standalone charge as it arises from elements of count one and it presupposes custody which was the subject charge but could be illegal if the High Court should agree that the purported offence which led to Masebo’s arrest was unconstitutional.

The case was adjourned to today.