….The state’s attempt to have the matter dismissed has failed
The Constitutional Court has ruled that Milingo Lungu’s petition regarding his immunity shall be heard. The state had applied for the dismissal of the petition arguing that hearing the matter would amount to an academic exercise because the Director of Public Prosecutions, DPP, had revoked the immunity.
In a unanimous decision of five Constitutional Court Judges read by Judge Sitali, the court ruled that the State’s application had failed because the notice of motion it had filed under Order IX (9) rule 20 of the Constitutional Court Rules (CCR) was not filed along with an affidavit as the rule requires.
Further, the court ruled that the motion was incompetent because Order IX (9) rule 20 of the CCR was not the appropriate provision for the determination of applications aimed at the immediate termination of an action before the final decision in the matter.
In fact, the Constitutional Court had on the 9 th of November 2022 ruled in the case of Milingo Lungu v Attorney General and Administrator General that the rule the state had relied on to terminate Lungu’s petition was inappropriate.
In its ruling, the court referred to this case and reiterated its position. In that ruling, the court stated, “The question of which provisions are to be invoked in raising a preliminary issue seeking to terminate the main matter was settled in Law Association of Zambia v The Attorney General wherein we held that Order 1 rules 1 and 2 of the CCR read with Order 14A and Order 33 of the White Book may be invoked in order to raise a preliminary issue on a point of law seeking dismissal of the entire action. That is the route that the petitioner should have taken. We are thus inclined to dismiss the application”.
Milingo Lungu, who holds a Masters’ Degree in Insolvency from the University of Cape Town was appointed as a provisional liquidator in Konkola Copper Mines, KCM (in liquidation) during the Patriotic Front, PF, government following prolonged disputes with Vedanta Resources of India who had been operating the facility.
The state struck a deal with Lungu who voluntarily stepped down from his position while the State offered him immunity against prosecution. However, the State u-turned in bizarre circumstances with the ruling United Party for National Development, UPND, mounting a campaign against the Director of Public Prosecutions who they accused of allegedly shielding corrupt individuals.
She was subsequently dropped and replaced with a new DPP who immediately revoked the immunity leading to the abrogation of commitments that the State had made under the deal. The State claims that since the immunity had been revoked, Lungu’s petition must be dismissed. However, the court has now settled the question and Lungu’s petition shall now be
heard.
