ConCourt has no jurisdiction to hear reliefs Mutembo is seeking – State

THE State has submitted that the Constitutional Court has no jurisdiction to hear the reliefs dismissed Director of Public Prosecutions Mutembo Nchito is seeking from it because they are improperly before court.


According to the State’s submissions in response to the preliminary issue raised by the court on its own motion on November 27 last year where they asked whether the reliefs sought by Mutembo under paragraph 31, in particular sub paragraph (iv) (v) (vi) of the amended petition were properly before the Constitutional Court in these proceedings that have been commenced by way of petition, the State submitted that the court had no jurisdiction to hear the reliefs sought, saying the action should have been commenced by way of judicial review and not a petition.


“The reliefs sought cannot be by way of petition but by way of judicial review,” the State submitted.


It further submitted that while they agreed that the court may grant declarations sought, an analysis of the pleadings and the reliefs sought by the petitioner went to the root of challenging the decision-making process leading to his removal as DPP.


“The challenge mounted by the petitioner can only be substantiated by way of judicial review and the petitioner ought to have gone by that route,” they submitted.


The State also submitted that the court was right to raise the issue and was properly seized with jurisdiction to determine whether the reliefs Mutembo was seeking were matters that fall within the jurisdiction of the court.


“To answer this honourable court’s question, we are inclined to submit that the honourable court has no jurisdiction to entertain the reliefs sought by the petitioner under paragraph 31 in particular subparagraphs (iv) (v) (vi) in a cause of action that was instituted by way of petition,” the State stated.


Last month, Mutembo stated that the question posed by the court forced him to defend the reliefs he sought before the court prior to the hearing of evidence.


“This is unprecedented and unusual in a trial such as the one this court is meant to conduct, exercising its original and appellate jurisdiction. With that said, the petitioner will comply with the court’s direction and address it on the question raised,” stated the State. “…My ladies and my lords, the petitioner should not be called to justify the reliefs as this calls on him to argue his case prematurely. We pray that the court allows the petitioner to have his day in court.”

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