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Lungu erroneously used a wrong article to dismiss Nchito as DPP – ConCourt

THE Constitutional Court says President Edgar Lungu used a wrong article of the Constitution to dismiss the then Director of Public Prosecutions Mutembo Nchito for alleged professional misconduct.

Judge Palan Mulonda, on behalf of justices Mungeni Mulenga, Enock Mulembe, Margaret Munalula and Martin Musaluke, however, said President Lungu was right when he relieved Nchito of his duties and his decision could not be declared unconstitutional.

Justice Mulonda also said Nchito was entitled to the report of the tribunal that recommended his removal but that it was not the President’s obligation to do so but the committee of the tribunal.

In this matter, Nchito petitioned the Constitutional Court over his removal from office as DPP for alleged professional misconduct, saying it was illegal and ought to be declared null and void.

Nchito sought reliefs on whether he was entitled to the tribunal report and whether he could be removed from office using Article 144 of Act number 2 of 2016.

In his final submissions, Nchito contended that President Lungu’s action to dismiss him from employment pursuant to Article 144 of the Constitution was unconstitutional, null and void because he was not subjected to appear before the Judicial Complaints Commission.

He contended that he was denied access to the report of his tribunal, wondering why he could not be afforded an opportunity to challenge the findings.

Nchito said it was an anomaly for the President to rely on the repealed Article 58 of the Constitution of Zambia 1991 as it was repealed and an inapplicable law.

In reply, the state submitted that the President correctly removed Nchito from the office of DPP.

Attorney General Likando Kalaluka argued that Nchito was correctly removed from office under Article 58 of the Constitution as the tribunal continued to sit in line with section 10 of the Constitution of Zambia Act No.1 of 2016.

He said the President under Article 58(4) of the Constitution had no discretion with regard to the recommendations of the tribunal, but to relieve Nchito of his position as DPP.

Kalaluka argued that there was no legal basis for Nchito to be shown the findings of the tribunal or any legal basis that placed a duty on the President to furnish a copy of the report to him.

But in its judgment, the Constitutional Court said despite a new mechanism being in place under the new constitutional order, the repealed Article 58 applied to the ad hoc tribunal as though Article 144 was not in existence.

“Article 144 of the Constitution as amended within the context of this case is a wrong provision to anchor the decision of dismissal in this case. The reference to Article 144 of the Constitution as amended was misplaced, though the power exercised was covered by the repealed Article 58 of the Constitution of Zambia 1991,” judge Mulonda said. “The President’s action cannot be said to be unconstitutional, illegal or null and void as alleged by the petitioner.”

He said according to article 58(3)(b), the President being the recipient of the tribunal report was under no obligation to avail a copy of the same to the affected secured officer.

” If the framers of the Constitution had in mind the situation before us, they would have provided the outcome of investigations to the concerned office holder. This would enable the office holder to know the basis upon which recommendation is made and to take an appropriate action. This is what natural justice demands,” judge Mulonda said. “In conclusion, we wish to state that the President acted constitutionally when he relieved the petitioner of his duties as DPP despite the fact that the letter of dismissal erroneously referred to Article 144 of Act no. 2 of 2016 and not the repealed Article 58 of the Constitution of Zambia 1991.”

Judge Mulonda further directed that holders of Constitutional offices such as Nchito must be given a reason for their disappointment.

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