It’s cardinal that each party in proceedings has the right to be heard, says Mutembo

MUTEMBO Nchito yesterday told the Constitutional Court that it was cardinal that each party in proceedings has the right to be heard and call witnesses it deems fit.

And the Constitutional Court has reserved ruling in a matter in which the State through Solicitor General Abraham Mwansa wants the court to set aside the subpoenas issued against the chairperson and two members of the investigative tribunals that recommended Mutembo’s removal as Director of Public Prosecutions.

But Mwansa has urged the court to set aside for irregularities the subpoenas.

Submitting in the matter yesterday before judges Mungeni Mulenga, Enock Mulembe, Professor Margaret Munalula, Palan Mulonda, and Martin Musaluke on Mwansa’s application that the subpoenas issued against justice Annel Silungwe, who was chairperson of the defunct tribunal, and Mathew Zulu and Charles Zulu, now judges of the High Court, who were secretary and deputy secretary respectively be set aside, Mutembo said Mwansa cited Order 38 that the rules of the court must be followed strictly yet on his side, the rules were not being followed.

He said Mwansa could not object to his subpoenas and had no right to swear an affidavit on behalf of the witnesses.

“He himself has argued this morning that the particular tribunal is factus officio, so in what capacity is he swearing the affidavit?” Mutembo asked.

He said Mwansa’s submission that he needed to make an application to cause the issuance of the subpoenas was an interesting preposition that raises a problem. Mutembo wondered if the arguments by the learned Solicitor General were accepted, who was going to be a party responding to that.

“The respondent or the witnesses?” he asked. ” “Clearly, my ladies and lords, such an interpretation of rules leads to an absurdity not intended by the rules.”

Mutembo said he caused to be issued the subpoenas properly and filled a proecipe.

“The question of calling witnesses is a matter which the court is empowered to do even in its own motion in order to do justice to the parties. It’s therefore, not a matter that we should be taking the court’s time…maybe if there was a legal objection from a witness,” he said.

Mutembo, however, said if the court was of the mind that that he needed leave of the court to issue subpoenas, he was accordingly applying that the court exercises its jurisdiction to allow him subpoena the witnesses. He urged the court to allow him call his witnesses as the matter had taken too long so that it comes to a conclusion.

“I pray that the subpoenas be allowed, I duly filed a proecipe and the court duly issued the subpoenas and the witnesses themselves are not objecting,” Mutembo said.

Earlier, Mwansa argued that there was nothing irregular or illegal for him to have sworn the affidavit.

He said the witnesses which Mutembo subpoenad to produce the report were incapable of doing so as the tribunal was disbanded after they submitted the report to the President and the tribunal members became factus officio. Mwansa added that the report was handed to the President and as such, tribunal members were incompetent to produce it before court.

He said the subpoenaed witnesses therefore, did not have the report because it was given to the President.

“The committee completed its mandate and now it’s members are factus officio and they are not in possession of the report, it’s in the position of the authority as such the witnesses cannot be legally before this court,” Mwansa said as he urged the court to set aside the subpoenas.

Meanwhile, Mutembo asked the court if he could be allowed to call a witness to testify after the application of setting aside summons to subpoena witnesses to be set aside was heard.

He also asked the court to guide on the issues of submitting witnesses’ statements for those witnesses who also testified before the tribunal. But Mwansa objected, saying the court was clear at its last sitting that the hearing was only for the application for setting aside summons. Judge Mulenga agreed with Mwansa’s submissions and refused Mutembo’s request to call a witness to testify as that would be done at another sitting.

She however, said witness statements should still be filed as this was a new matter.

The court has reserved ruling on Mwansa’s application to set aside subpoenas to a date to be communicated.

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