Mutembo Nchito  unreasonable, absurd


Mutembo Nchito was being “absurd, unreasonable and contrary to good order” when he stated that the tribunal instituted by the President to investigate his misconduct was defunct after the assenting to the amended Constitution, the Constitutional Court has declared.

The court which yesterday threw out his application challenging the constitutionality of the tribunal set up to investigative his professional misconduct noted that both the Tribunal and the President were on firm legal ground in their actions.

The Court observed that it would have been absurd as envisaged by Mr Nchito that the Tribunal should have abruptly stopped due to the coming in of the amended Constitution when the law provided for the continuity of such matters until final conclusion of proceedings.

“This transition was provided for in order for pending proceedings to be concluded in an orderly manner to avoid abrupt stoppage and the attendant effects.” The Constitutional Court Justice Mungeni Mulenga, sitting with Mr Justice Enock Mulembe and Ms Justice Margaret Munalula have ruled.

“Therefore, the petitioner’s argument that the tribunal became defunct on 5th January 2016 and its continued proceedings unconstitutional, is misconceived and lacks merit,” they said.

Reading the judgment Ms Justice Mulenga said the Mutembo Nchito Tribunal was legal and had the jurisdiction to hear allegations against the former DPP even after the President assented to the new amended Constitution of January 5, 2016.

In his application, Mr Nchito charged that the tribunal lost jurisdiction following the coming into effect of the new Constitution that provided that investigations of a DPP must be instituted and presided over by the Judicial Complaints Commission.

The court explained that to avoid injustice, history always provided for a transition period as not all provisions could take abrupt effect without disruptions to processes and procedures.

It was clearly not the intention of the legislature to have an automatic and abrupt abolition of the tribunal, while matters were still pending before it.

“The legislature was apparently aware of the provisions in the Articles 182 (3), 143 and 144 which had changed the mode of investigating the DPP from the ad hoc tribunal to the Judicial Complaints Commission, hence the enacting of the fundamental transitional provisions to apply to the tribunal as contained in Act no. 1, 2016,” she said.

She said the matter still had pending issues at the time of the amendment which validated its transition under Section 16 of Act no. 1, 2016.

The President appointed former Chief Justice Annel Silungwe as chairperson of the tribunal that began sitting earlier in the year following delays owing to several court proceedings against its establishment.

Mr Nchito had described the tribunal as defunct, accusing it of going against the amended Republican Constitution which stipulated that such action was only mandated to be instituted under the Judicial Complaints Commission and not tribunal.

Mr Nchito said the tribunal sittings were unconstitutional following President Edgar Lungu’s assent to the amended Constitution on January 5, 2016.

Ms Justice Mulenga cited Article 16 of the new Constitution that: “(1) Unless otherwise provided under the Constitution as amended, proceedings pending before court or tribunal shall continue to be heard and determined by the same court or tribunal or may be transferred to a corresponding court or tribunal established under the Constitution as amended”.

Mr Nchito accused the Annel Silungwe Tribunal sitting with former Chief Justice Matthew Ngulube and retired Chief Justice Ernest Sakala of going against the new Constitution Amendment Act no. 2 of 2016 which, he said, in Part 13 dealt with the office of the DPP, and rendered the tribunal defunct.

Mr Justice Silungwe and his team submitted their report to President Lungu on August 7, 2016, and Mr Nchito was subsequently relieved of his duties on August 9, 2016, based on the recommendations.

The Constitutional Court earlier threw out another petition by Mr Nchito to challenge the President’s decision to fire him. The court found that as the appointing authority, the President had the legal backing of the tribunal to take the course of action he did.