Three years after the Constitutional Court ruled that State Counsel, Mutembo Nchito, was legally removed from office of Director of Public Prosecutions (DPP), Attorney-General, Mulilo Kabesha, has consented to compensate him for an unjust removal from office.
This followed a consent judgement dated September 14, 2023, entered between Nchito and the Attorney General’s Chambers, filed in the Lusaka High Court.
The Attorney-General had admitted the Petitioner, Nchito, was subjected to a conflicted and biased tribunal, which recommended his removal from office as DPP, thus his constitutional right to the protection of the law was infringed.
“The respondent shall compensate the Petitioner in lieu of re-instatement for his unconstitutional and unjust removal from a constitutionally protected office he was entitled to retain until retirement on attaining the age of 60 years. The compensation unless agreed by the parties shall be subjected to assessment,” read the judgment.
The State would additionally pay Nchito, legal costs to be agreed by the parties and shall be taxed in default of agreement.
The consent judgement is however, awaiting endorsement from Justice Geoffrey Mulenga.
In 2016, Nchito was fired by former President, Edgar Lungu, based on the report by the tribunal which was appointed on March 10, 2015 pursuant to Article 58(2) and (3) of the Republican Constitution. The Tribunal was appointed to investigate allegations of misconduct by Nchito.
The tribunal recommended that the two proven Terms of Reference No. 2 and No. 4 sufficiently constituted misconduct in reference to Article 58(2) and (3) of the Constitution of the Republic of Zambia.
The conclusion was that the Term of Reference No. 2, alleging misconduct or misbehavior by the DPP whereby on February 20, 2015, Nchito purportedly took over prosecution of a matter before Senior Resident Magistrate, Lameck Mwale where the DPP was personally an accused person and proceeded to enter a nolle prosequi in his own case thereby defeating the ends justice, had been proved.
The Tribunal also concluded that the Term of Reference No.4 that the DPP’s act of intentional disrespect to judicial proceedings had been proved.
But Nchito in his petition, argued that former Chief Justice Matthew Ngulube,was in contravention of Article 18(9) when he chose to continue sitting on the tribunal and probed him in spite of his personal connections to the terms of reference which militated against his independent and impartial involvement in the tribunal as required by the constitution.
He contended that former Chief Justice Ernest Sakala’s involvement with the terms of reference contravened article 18(9) of the constitution as he lacked the necessary independence and impartiality to sit as a tribunal member as required by the constitution.
He said that Judge Ngulube could not give him a fair hearing as he had exposed him as a receicpent of illicit funds from the infamous Zamtroop account during the tenure of President Fredrick Chiluba which led to his early departure from the office of chief justice.
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