Mutembo attempt to subpoena witnesses rejected

THE Constitutional Court has refused to entertain former Director of Public Prosecution (DPD) Mutembo Nchito’s subpoenas on members of the tribunal that recommended his removal.

Mr Nchito had subpoenaed retired justice Matthew Zulu, former Chief Justice Annel Silungwe and former justice Charles Zulu to testify in his behalf. In this matter Mr Nchito is challenging his removal as DPP arguing that it was illegal and should therefore, be declared null and void. In a ruling delivered by Justice Enock Mulembe, the court ruled that the subpoenas were issued without leave of the court, rendering them irregular. “It is our view that the procedure of seeking leave was not followed thereby making the subpoenas irregular. The litigant should have sought leave by way of notice or necessary application. The litigant earlier made an oral application but we refuse to grant the same as it is irregular as it was supposed to come by way of notice,” justice Mulembe said. During hearing, Solicitor General Abraham Mwansa had urged the court to set aside the subpoenas. He argued that justice Zulu, justice Zulu and former Chief Justice Silungwe could not be subpoenaed because they are no longer setting on the tribunal. He argued that the report by the tribunal was handed over to the President and that individual members of the tribunal could not produce it in court. But Mr. Nchito however, argued to the contrary saying the move to compel the witnesses to come and testify was properly before the Constitutional Court. He said there was no need to seek leave from the court as it was sitting as a trial court and a party was at liberty to call witnesses at any instance without leave of court.

The litigant should have sought leave by way of notice or necessary application. The litigant earlier made an oral application but we refuse to grant the same as it is irregular as it was supposed to come by way of notice. -justice Mulembe