Maravi

High Court grants leave for judicial review over DPP's withdrawal of Chiluba appeal

High Court grants leave for judicial review over DPP's withdrawal of Chiluba appeal
Written by George Chellah
Thursday, September 10, 2009 4:08:34 AM

LUSAKA High Court judge Phillip Musonda has granted Munali PF member of parliament Mumbi Phiri leave for judicial review on the decision by the Director of Public Prosecutions (DPP) to withdraw an appeal against Frederick Chiluba's acquittal.

This is in a matter where Phiri cited the DPP Chalwe Mchenga and Attorney General Mumba Malila as the first and second respondents respectively following the withdrawal of a Notice of Appeal in respect of Chiluba's acquittal.

In his ruling dated September 8, 2009, judge Musonda stated that he would grant leave but would not stay the withdrawal of the Notice of Appeal.

"This is an application for leave for judicial review against the learned Director of Public Prosecutions' withdrawal of the Notice of Appeal which was lodged by the Private Prosecutor. I will grant leave, but you cannot stay that which has already taken place. The dictionary meaning of stay is hold-on, hang-on," judge Musonda ruled. "Blackwell's Law Dictionary defines 'stay' as: 'The postponement or halting of a proceeding, judgment or the like, an order to suspend all or part of a judicial proceeding or a judgmental resulting from the proceeding.' There is no irreparable damage as an appeal can be lodged out of time. There is no prejudice if the applicant succeeds. Matter adjourned to 18/09/09 at 09:00 hours."

In a notice filed in the Lusaka High Court principal registry yesterday, Phiri stated in her affidavits of support that Chiluba's prosecution was conducted by the public prosecutor duly appointed by DPP Chalwe Mchenga for or on behalf of the Task Force on Corruption.

"Following the acquittal in question the public prosecutor on 24th August 2009 lodged a notice of intention to appeal to the High Court of Zambia," Phiri stated. "On 26th August 2009 the 1st Respondent herein filed a Notice of Withdrawal of the Notice of Intention to Appeal, which was lodged by the public prosecutor on 24th August 2009.

"That it is not correct to state as the 1st Respondent has done that the Notice of Intention to Appeal lodged by the public prosecutor was purportedly lodged on his behalf as the officer has and did exercise delegated powers to appeal accordingly."

Phiri, therefore believed that the appeal was duly lodged before the High Court and that Mchenga's decision was unreasonable and an error of law.

"That in view of the foregoing I humbly pray that the court should grant me leave for judicial review," she stated.

And in her skeleton arguments and list of authorities, Phiri stated that should the court grant her leave for judicial review, the said grant of leave should operate as a stay of the decision being challenged pending the determination of this matter.

"On the basis of the foregoing my lord, this court has jurisdiction to grant a stay to prevent any further implementation of the decision of the 1st Respondent dated 26th August 2009," stated Phiri.

Recently, Lusaka lawyer Wynter Kabimba notified Mchenga that he would commence judicial review proceedings to have the decision to withdraw the state's appeal against Chiluba's acquittal reviewed by the High Court.

In his letter to Mchenga, Kabimba stated that he had instructions from interested citizens to commence judicial review proceedings against Mchenga's unreasonable decision on the matter.

"Re: The People Vs Frederick T.J Chiluba and Others. We refer to the above quoted matter and in particular your notice of withdrawal of the notice of intention to appeal dated 26th instant in respect of the same," Kabimba stated. "We have been instructed by some interested citizens to commence judicial review proceedings to have your decision reviewed by the High Court on the grounds that the same constituted an error of law and was also unreasonable. We shall serve upon you the relevant Court process as soon as the same has been filed."

Kabimba's letter came in the wake of President Banda's government's decision to withdraw the state's appeal against Chiluba's acquittal.

But Mchenga in a Notice of Withdrawal of Notice on Intention to Appeal stated "to the clerk of court whereas, Dr Frederick Jacob Titus Chiluba, Faustin Mwenya Kabwe and Aaron Chungu were on the 17th day of August 2009 acquitted by the Subordinate Court of the First Class of the following offences: 1. Dr Frederick Jacob Titus Chiluba, 6 counts on the offence of theft by public servant contrary to Sections 272 and 277 of the Penal Code Chapter 87 of the Laws of Zambia and 2. Faustin Mwenya Kabwe and Aaron Chungu, three counts of theft contrary to Section 272 of the Penal Code Chapter 87 of the Laws of Zambia. And whereas on the 24th day of August 2009 a Notice of Intention to Appeal against the said acquittals was purportedly lodged on my behalf by a public prosecutor: Now these presents I, Chalwe Farai Ralph Mchenga State Counsel DPP of the Republic of Zambia do hereby give Notice of the Withdrawal of the said Notice of Intention to Appeal".

This came barely a day after President Banda fired Task Force on Corruption chairman Max Nkole following his appeal against Ndola High Court registrar Jones Chinyama's acquittal of Chiluba on all counts of embezzling public funds amounting to US $500,000.

CK

Labels: CHILUBA, COURTS, DPP

posted by MrK @ 3:11 AM