Tribunal against Mutembo now unconstitutional

MUTEMBO Nchito has informed the justice Annel Silungwe-chaired tribunal appointed by President Edgar Lungu to probe him that it has been rendered defunct by the amended Constitution.

The tribunal resumed sitting yesterday following the Supreme Court’s judgment which set aside the High Court stay of proceedings for Mutembo to seek judicial review.

According to a letter dated February 23, addressed to “defunct Mutembo tribunal former members justice Silungwe, Mathew Ngulube and Ernest Sakala”, which was also copied to Attorney General Likando Kalaluka and former tribunal secretary Mathew Zulu, Mutembo said the proceedings instituted by President Lungu for the removal from office of Director of Public Prosecutions under provisions now repealed by the Constitution as amended, are now outside the law.

“As you are no doubt aware, following the enactment into law of the Constitution of Zambia (Amendment) Act number 1 of 2016 (Amendment Act) , His Excellency the President of the Republic of Zambia Mr Edgar Chagwa Lungu on Tuesday 5th January, 2016 assented to the Constitution of Zambia Act Number 1 of 2016 which brought the amendments to the Constitution into immediate force. The said amendments to the Constitution have significant bearing on the process of removing a serving Director of Public Prosecutions from office,” the letter read.

He stated that according to section 4 of the amendment Act, part IV of the Constitution which, among other things, provided the grounds and procedure for the removal of a person from the office of Director of Public Prosecutions(DPP), stands repealed.

“It is no longer law. The removal from office of a DPP through the instrumentality of an ad hoc tribunal appointed by His Excellency the President is no longer supported by the Constitution as amended. This was replaced by part XIII in the Constitution as amended,” Mutembo stated.

“In terms of the Constitution as amended, in particular Article 182 (3), the grounds and procedure for the removal of a person from the office of DPP are such as applicable to the removal of a judge. These grounds and the attendant procedures are set out in Article 143 to 144 of the Constitution as amended.”

He further stated that the Judicial Complaints Commission was now the permanent body and competent ‘Tribunal’ to investigate allegations brought against a person holding the office of DPP.

“It is this commission that may recommend the removal of a DPP to His Excellency the President. The proceedings instituted by his Excellency the President for the removal from office under provisions now repealed by the Constitution as amended, are now outside the Constitution as amended and therefore of no effect because the constitutional backing on which they stood has been repealed and replaced by a new constitutional process,” he stated.

Mutembo added that there was now no provision for the President to appoint an ad hoc tribunal to probe a DPP with a view to remove them from office.

“The duty to probe now lies with the Judicial Complaints Commission. The assent to the Constitution rendered this tribunal defunct or in a manner of speaking ‘defunctus sine prole’ by operation of Law,” he stated.

Mutembo also informed the former tribunal members that he had written President Lungu requesting him to cause a process that complies with the Constitution as amended to be instituted.

“Kindly note that I have written His Excellency the President requesting him to cause a process that complies with the Constitution as amended to be instituted, should he still be desirous to have the question of my removal investigated,” stated Mutembo.

“Much as I respect all members who comprised the Tribunal and greatly admire your gigantic contribution to this country’s jurisprudence, we must all respect the Constitution which we have sworn on oath to defend and uphold. There is no basis for these hearings to continue because they are now outside the dictates of the Constitution as amended. My Lords I beg your leave.”

Zulu, on February 11, informed Mutembo that the tribunal would resume its sittings on February 23-26 and Febraury 29 to March 4 at plot number 19 Tito Road, Rhodes Park.

According to Zulu, the resumption of sittings followed the Supreme Court’s decision to allow the state’s appeal against judge Mubanga Kondolo’s stay of the tribunal proceedings.
Meanwhile, tribunal members yesterday started arriving at the said venue around 09:00 hours.

The entrance to the premises was restricted as only the lawyers for the state, respondent and support staff were allowed to access the venue.

Uniformed and plain-clothes police officers manned the premises to ensure compliance of the proceedings that were held in camera.

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