The PF has attacked High Court Judge Mwila Chitabo for halting President Edgar Lungu’s suspension of DPP Mutembo Nchito.
While in hospital in South Africa, Lungu suspended Nchito and appointed a tribunal to investigate him of 8 allegations. But Nchito went to court to seek a judicial review. Judge Mwila Chitabo set dates for the hearing of the judicial review and as is normal, issued a stay of Nchito’ suspension until the court has made a decision. The judge did not stop the tribunal but just halted it until the judicial review is heard.
But the PF says this a direct affront on Lungu.
Sunday Chanda, the PF Media Committee Vice Chairperson claimed that
History in Zambia and the commonwealth is replete of examples that state that the President has constitutional power and that President Lungu used, without any question or reservation, hence staying or stopping the executive decision a President takes is like slapping the person sworn to the office of the President in the face—it is disrespectful.
The truth is that judges have power to review executive decisions and to declare them unconstitutional or illegal. President Lungu has power. But his power is not untrammelled.
Chanda, a losing MMD Parliamentary candidate in 20111, said that ‘the level of contempt and disdain Judge Chitabo has for President Lungu’s office and persona teeters on the brink of criminality.’
He said that, in recent history, Judge Chitabo’s action only reminds us of the action taken in the High Court by Judge Anthony Nyangulu (MHSRIP) when he grossly and erroneously ruled that President Mwanawasa (MHSRIP) was wrong to appoint Legislators from the opposition on the instigation of Brig General Godfrey Miyanda in 2003.
The matter back-fired right in the face of Judge Nyangulu who later issued an apology stating that he made the illegal ruling because (I had malaria,” leaving him as a laughing-stock in the eyes of the legal fraternity and the Judge lost while President Mwanawasa triumphed on the back of the law.
This is mixing up issues. Judge Nyangulu was wrong on a point of law. But he was right to check how executive power was used. There is actually more recent history than the Nyangulu one. Judge Florence Lengalenga halted, twice, the tribunal appointed by President Michael Sata to probe judge Mutuma and Musonda.
Chanda challenged LAZ to tell the PF why it is only Judge Chitabo who handles favourably, the cases involving suspended DPP Mutembo Nchito.
‘A case in point is when he recently quashed the Chongwe magistrate court’s decision to arrest Mr Nchito. Is the Judge being targeted by Mr Nchito? At this point and time without straying into matters before the court, we urge LAZ to educate us on what the law says with regard to Presidential powers.’
What we know is that President Edgar Lungu has constitutional powers to take the action he took to suspend Mr Nchito and constitute the tribunal. This has already been answered above. Lungu is not a king but subject to the law.
Chanda said PF fears that the level of contempt and disdain Judge Chitabo has for President Lungu’s office and persona teeters on the brink of criminality.
He said LAZ must act on ‘this urgent matter’.
He further said ‘we know that matters of “Stays” are absolutely based on discretion.
He asked ‘If this be so, why then did Judge Chitabo exercise discretion in a matter involving the President? What pressure did the Judge face if any? These and many other questions beg for answers.
The answer is very simple: It is a discretionary matter so judge Chitabo exercised his discretion by staying the proceedings. If the judge had no choice just because it involves Lungu, then it would not be discretion.