State cannot challenge its own actions – Milingo
By Mwaka Ndawa/ The Mast
FORMER KCM provisional liquidator Milingo Lungu says the DPP having exercised her powers as stipulated in the Constitution to preclude him from prosecution for allegedly embezzling millions of kwacha from the mining firm acted on behalf of the government and her actions were binding on the State, therefore it cannot challenge its own actions.
Lungu said the Attorney General cannot lodge a cross-petition in his official capacity neither can he legally seek a relief against him that the agreement exempting him from past and future prosecution over actions taken as provisional liquidator of KCM be declared illegal and an abuse of court process.
He argued that the grant of immunity from prosecution or indemnity from prosecution is the preserve of Director of Public Prosecutions, an exercise of constitutional power and she is not a party to the proceedings, warranting the Attorney General to seek reliefs.
In this case, Lungu has petitioned the State and it’s agents in the Constitutional Court over his re-arrest on allegations that he bought a house using illegal gains when they entered into a pact to exempt him from prosecution after he rendered the mining firm’s account records and reliquinshed his position.
Lungu asked the court to dimiss the cross petition by Mulilo Kabesha and other State agents on preliminary questions of law.
Kabesha in his skeleton arguments in opposition to Lungu’s application to dismiss the cross-petition said the cross-petition raises important claims and reliefs against Lungu.
He said by questioning the legality of the immunity agreemnt and seeking declaration to that effect, the State has posed very serious legal questions that must be addressed, therefore the State is on firm ground to challenge the legality of the immunuty agreement.
Kabesha said Lungu has petitioned the State for his re-arrest based on an agreement that is not anachored on any law thereby rendering the petition baseless for being instituted under a miscomprehension of the law.
But in an affidavit in reply to affidavit in opposition to summons for an order to dismiss cross-petition on determination of preliminary questions of law, Lungu said the Attorney General being the legal representative of the DPP and the Drug Enforcement Commission is not competent to swear or depose to the affidavit in opposition as the matters subject of the said affidavit are not only contentions, but they also relate to the factual circumstances which are a preserve of the DPP.
“The affidavit deposed to by the Attorney General ought to be expunged from the record in its entirety. I reiterate the position that the Attorney General is not a person capable of bringing a cross petition in terms of the Constitution,” Lungu said.
He said the cross-petition is not signed by the DEC, the official receiver or their advocates as required by law.
“The obligation of the Attorney General to represent the DPP is in relation to all acts and or omissions involving the excercise of the constitutional power of the office of the DPP. The affidavit in opposition by the Attorney General are an attempt to challenge the excecrise of power of the DPP who is not personally a party to this action,” Lungu said.
“Granting me immunity from prosecution, the DPP excercised her power not to initiate criminal proceedings against me in relation to acts and, or, omissions arising from the carrying out of my functions as provisional liquidator.”
He charged that only the court has authority to determine whether the DPP’s exercise of powers is within the Constitution, and it is neither the discretion of the Attorney General to do so.
In his skeleton arguments, Lungu said the DPP’s actions were in conformity with the Constitution and the contention raised by the purported exceptions to the acts that bind the DPP raised by the state do not arise.
“The Attorney General cannot sue the Director of Public Prosecutions as the Attorney General is the legal representative of the director of the DPP in all civil matters. The prescribed acts as claimed in the submission of the Attorney General do not and cannot be extended to challenging the actions of the DPP in the courts of law,” Lungu said.
“In fact to the contrary to allow the Attorney General to proceed with cross-petition would be setting a precedent that the Attorney General can sustain actions against his own office, this is because by Section 3(2) of the national prosecutions Act his office should be sued where the DPP’s action are questioned as in this case where the agreement by the indemnity agreement between the petitioner and that the state (through the DPP) has been challenged.”
He prayed that the court dismisses the cross-petition with costs.