Explanation of the Court’s Dismissal of an appeal against the DPP on FTJ’s acquittal

THE dismissal of an application for judicial review against Director of Public Prosecutions (DPP) Chalwe Mchenga’s decision to withdraw an appeal challenging former president Frederick Chiluba’s acquittal does not come as a surprise.

This is because the issues raised centre around the powers of the DPP, which are enshrined in the Constitution and on the separation of powers, which are an embodiment of constitutional democracy and governance.

Patriotic Front (PF) Munali Member of Parliament Mumbi Phiri, through her lawyer Wynter Kabimba, had sought an order of certiorari to quash the DPP’s decision to withdraw a notice of appeal against the acquittal of Dr Chiluba on theft charges.

This was in so far as the withdrawal purported to decide or suggest that the public prosecutor could not exercise a right to appeal the judgment of a subordinate court in a criminal matter by himself and/or without express authority of the DPP.

But High Court Judge Justice Phillip Musonda threw out the application, which he said was ill-fated from the very beginning as it was seeking an order from the court to force the DPP to appeal.

According to Justice Musonda, the application flew in the teeth of the Constitution and in particular Article 56(5) that confers powers on the DPP to function to the exclusion of any other person or authority.
Furthermore, it was an attempt at blurring the separation of powers on which constitutional democracy was anchored because the court was being asked to reach a decision that would amount to judicial legislation.

In the court’s view, the legislative authority lies in Parliament, while on its part, the court’s role is to interpret the laws as they are. “It (the application) was an action based on a serious misunderstanding of the judiciary’s role in constitutional interpretation. One of the foundational values of the rule of law is that the judiciary should interpret the law without fear or favour no matter whether the judiciary agrees with that provision or not,” said Justice Musonda.

Which is precisely why in an application for judicial review, the court is careful never to substitute its own opinion or of individual judges for that of an authority constituted by law to decide on matters in question.
The remedy of judicial review is concerned principally with reviewing, not the merits of the decision but the decision-making process.In which case the court will primarily concern itself with whether a person or particular authority acted ultra or intra-vires.

Has the decision maker acted within his powers? Does the decision-making process entail the application of natural justice? Those are questions the court will ask. If the person or body acted within jurisdiction, respecting the demands of natural justice, the courts will not interfere with the decision; even if the decision was in some respect wrong.

In the Mumbi Phiri application, the grounds for judicial review were that the withdrawal of the appeal was an illegality and wednesbury unreasonable. Illegality to mean that the decision-maker did not understand correctly the law that regulates his decision and failed to give effect to it.

Wednesbury unreasonableness (also referred to as irrationality) applies to a decision, which is so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.

The decision has to be “so absurd that no sensible person could ever dream that it lay within the powers of the authority” Because of this the standard of reasonableness imposed by the courts is high.
Now, in the case of the DPP, it is within his authority to under Article 56 (3) as the person charged with the administration of criminal justice to institute or undertake, take over and continue or discontinue proceedings or appeal.

In order to exercise his functions, the DPP enjoys sovereignty. He is not obliged to consult anyone not even the Attorney General. Article 56(7) states that he may bring a case to the attention of the Attorney General and may act accordingly but this is discretionary, it is not mandatory.

He has a right to make a decision whether right or wrong, that is his constitutional mandate. In his deposition the DPP said (and even when he was not obliged to explain) he was satisfied that the appeal was unlikely to be successful. Many may disagree with him but would that amount to absurdity?
The court said the DPP was merely exercising his powers under the Constitution and as such could therefore not be wednesbury unreasonable.

Similarly, arguments that the notice of appeal purportedly lodged on behalf of the DPP on August 24, 2009 by public prosecutor Mutembo Nchito was binding because he acted as a delegate of the DPP could not hold.

Mr Kabimba had cited the case of the People v Julius William Banda where the court ruled that a police public prosecutor had authority to lodge an appeal on behalf of the DPP. He further argued that there were neither express nor specific instructions from the DPP to Mr Nchito to withdraw the appeal and that by withdrawing the appeal the DPP fell into error of law.

Admittedly, the constitution does permit the DPP, in the exercise of his powers, to do so himself or by a public officer or any class of public officers who will act with his general or specific instructions.
In this vein, Mr Nchito was an agent of the DPP but as Counsel representing the DPP and the Attorney General pointed out, under Section 86 of the Criminal Procedure Code, Mr Nchito was subject to the express directions of the DPP.

The position of the DPP has common law ancestry all through the Commonwealth and the reason behind the apparent discretionary power ‘overload’ is so that the DPP can be given such latitude to make independent decisions without undue influence from any quarter.Which is why he enjoys security of tenure under the Constitution. The DPP can vacate office upon attaining the age of 60. His removal on any question of incompetence, misconduct or inability to perform due to infirmity must be subjected to a stringent and laborious procedure.

The president has to appoint a tribunal consisting of a chairperson and not more than two persons holding high judicial office. The tribunal shall inquire and advise the president accordingly. The question the court asked is, if he Mutembo Nchito is an agent of the DPP, how then can an agent override his principal or a delegate of power overrule the delegator of that power?

“Can a minister to whom legislative power is delegate override the National Assembly, if it were so there would have been no committee on delegated legislation to scrutinise statutory instruments. In this particular case the public prosecutor would have power to override article 56(5) as he could be able to control the DPP. I find such reasoning disingenuous and contrary to the intention of the framers of our Constitution,” said Justice Musonda.

The court ruling seems to agree with some legal reasoning that in fact it was the Public prosecutor through the Taskforce on Corruption that had usurped and had all along been usurping the powers of DPP.
Finally, Zambia being a country of Constitutional supremacy every person and body without exception is subject to the Constitution. No one is above the law- the judiciary inclusive.

The same Constitution is categorical and extensive that no person or authority should interfere in the exercise of the DPP’s power. Neither the court nor any other body has the power to interfere with the work of the DPP. Hence Justice Musonda’s comment: “The DPP has power, which cannot be questioned by a court of law to terminate proceedings … how then can the court question his decision not to appeal? Whether the DPP powers to institute or terminate criminal proceedings–which cannot be interfered with-are under pinned by legal, logical or constitutional necessity is not for the court to say.”

And if the problem related to the “over” broad independence granted to the DPP’s office that was not a matter for the Court to decide. Judge Musonda said it was up to the framers of the Constitution-the elected representatives of the Zambian people to deal with.

As for the courts the constitutional provision is clear and unambiguous. “To reach the other decision will amount to Judicial legislation and will violate Article 62 of the Constitution which lodges legislative sovereignty into parliament. If the court ignored the law, that will amount to “judicial tyranny”. If the court as guardian of the Constitution violates the Constitution what will stop other organs to violate the constitution and other laws. Where the law ends, tyranny begins”

The court is always mindful about the parameters in so far as it can make judicial intervention in administration and what has come out clearly in this application for judicial review is that the court will shy away from substituting its view for that of the administrative authority. Above all, the court will always guard jealously its judicial independence.

[Times of Zambia]