NCHITO REINSTATEMENT AFTER PRESIDENTIAL DISMISSAL UNTENABLE - SOLICITOR GENERAL

SOLICTOR GENERAL Abraham Mwansa yesterday told the Constitutional Court he did not respond to an application by former director of public prosecutions (DPP) Mutembo Nchito to subpoena witnesses because there is a likelihood that the petition may be dismissed. Mr Mwansa said he did not respond to Mr Nchito’s application because he believed that the notice he filed to raise preliminary issues to ask the court whether the decision by the President to remove Mr Nchito as DPP could be reviewed by the court and whether he could be reinstated as DPP, was at the core of the petition and should, therefore, be heard first. In this matter, Mr Nchito has petitioned the Constitutional Court over his removal from the office of DPP. He claims that his removal was unlawful, illegal and that it should, therefore, be declared null and void. But Mr Mwansa said the preliminary issue raised as to whether the President’s decision could be reviewed would determine the fate of the petition and should be heard first instead of the application to subpoena witnesses which would not be necessary if the petition was dismissed. Earlier, this month Mr Mwansa filed the notice to raise preliminary issues to ask the court whether the decision by the President to drop Mr Nchito as DPP could be reviewed and whether he could be reinstated as DPP. However, when the matter came up for hearing yesterday, Mr Nchito said he could not respond to Mr Mwansa’s notice because he was of the view that his application to summon witnesses should be heard first. He said he expected the State to respond on the issue of subpoenas on October 25 but this was not done, instead, the State filed another motion. Mr Nchito complained that the last time he defied court orders, the court rebuked him but the State did not follow orders as directed. “I take issue with this conduct because what is good for me as a petitioner should be good for the state as the respondent. The state complained last time about defying court orders and the court rebuked me. In my opinion this matter is coming for my application which was scheduled for November 15. “When the matter was last adjourned on October 3, I was directed to serve the state summons for the issuance of subpoenas and the state was directed to serve their response by October 25 which we waited for but never came. On October 29, I wrote to them and caused to be copied to this court the same letter, in which I was reminding them to let us have the response as ordered by this court. I did not receive a response to that letter, instead a motion was filed,” Mr Nchito said. In response, Mr Mwansa said he could not file a response to Mr Nchito’s application because according to him, the notice of motion to raise preliminary issues was the appropriate step to take because it went to the root of the petition. He said an application pursuant to order 14A of the white book takes precedence over all other applications because it goes to the root of the cause of action. Mr Mwansa said he did not see any sense in responding to Mr Nchito’s application because the entire petition could be dismissed as a result of the preliminary issue raised. “Indeed we could not file any response to the petitioner’s application to issue subpoenas for the simple reason that we were of the considered view that the notice of motion that we filed on November 2 was the appropriate step to take. We were also of the view that the motion could have come earlier in the proceedings. “The cause of action may be disposed of in its entirety, it would, therefore, not make any sense on our part to respond to the petitioner’s application,” Mr Mwansa said. The court ruled that Mr Mwansa’s application would be heard first because it went to the root of the matter and directed Mr Nchito to file his response accordingly. Hearing continues tomorrow.