Raphael Mangani Nakacinda v The Director of Public Prosecutions (2023/HP/2246) (10 June 2024) – ZambiaLII

IN THE HIGH COURT FOR ZAMBIA 2023/HP/2246 AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: IN THE MATTER OF: AN APP THE AND IN THE MATTER: ORDER, :-..·~ b W~~ ULES OF THE SUPREM 6 AND 1965, WHITE BOOK ( 1999 EDITION), VOLUME 1 AND IN THE MATTER OF: ARTICLE 180 (4) AND 8 OF THE CONSTITUTION OF THE REPUBLIC OF ZAMBIA, CHAPTER 1 OF THE LAWS OF ZAMBIA AS AMENDED UNDER ACT No. 2 OF AND IN THE MATTER OF: SECTION 89,90 OF THE CRIMINAL PROCEDURE CODE CHAPTER 88 OF THE LAWS OF ZAMBIA. AND IN THE MATTER OF: THE DECISION OF THE DIRECTOR OF . PUBLIC PROSECUTION DATED STH DECEMBER, 2023 DECLINING AUTHORIZATION OR PERMISSION TO CONDUCT PRIVATE PROSECTION ON ACCOUNT OF CIVIL MATTERS RUNNING TOGETHER WITH THE SAME SUBJECT MATTER. BETWEEN: RAPHAEL MANGANI NAKACINDA APPLICANT AND THE DIRECTOR OF PUBLIC PROSECUTIONS Before The Hon. Justice M. D. Bowa in <; For the Applicant: Mr. J. Zimba Makebi ZU!ffi~'f.te~ For the Respondent: Mrs. S. Mwamba -~'l!-lffl~11li~ 'A R Cases referred to: 1. Derrick Chitala (Secretary vs The Attorney General( 1995 97 ZR pp 95 Rl 2. Wang Shunxue v the Attorney General and Wang Qinghai (2021) SCZ No. 003 3. Arismic Ltd Foreign compensation Commission (1969) 2 AZ 14 7 4. C.K Scientific Group Zambia Limited vs Zambia Wildlife Authority,(2014) 1 ZR 123 5. Milfred Maambo and 2 others vs the People 2016 CCR 001 selected judgment No. 31 of2017 6. Lungwangwa vs the Attorney General CAZ I 08/ 178/ 201 7 7. Davies Mwila v the Attorney General 2018/HP/211 l(unreported) 8. The People vs Judicial complaints Commission, Vincent Blackskin Malambo, Chad H Muleza, Dean A Mwansa Mumba and the Attorney ex-parte (Timothy Katanekwa), 2024/ HP/ 0262(unreported) 9. Nyampala Safaries Limited and others vs Zambia Wildlife Authority and Others (2004) ZR 49 10. Andreas Panani v The Attorney General (2010) ZR 73 11. North-Western Energy Company Limited vs the Energy Regulation Board vol 2, 2011, ZR 512 12.Prince v President, Cape Law Society 2001 (2) BCLR 133 13. Minister of Justice and Constitutional Development v Prince (2018) ZACC30 • 14. Felix Chipota Mutati & Others vs Winnie Zaloumis suing as National Secretary of the Movement of Multi-Party Democracy Selected Judgment no 31 of 2018 Legislation referred to: 1. The Constitution of Zambia Chapter 1 of the Laws of Zambia 2. The Criminal Procedure Code Cap 88 of the Laws of Zambia Other works referred to 1. The Rules of The Supreme Court of England White Book 1999 Edition order 53. R2 2. Spies A "The importance of minority judgments in judicial decision making; an analysis of Minister of Justice and Constitutional Development vs Prince" South African Journal on Human Right volume 35 number 4, 2 October 2019 pp 429-440. 1. Introduction 1. 1 The Applicant commenced this action by exparte summons dated the 8th December 2023 seeking leave to commence judicial review proceedings against the decision of the Director of Public Prosecutions(DPP) to decline the Applicant's advocates consent to privately prosecute the matter between the People vs Miles Bwalya Sampa and Morgan Ngona. The notice containing the statement in support of the ex parte application for an order for leave to commence judicial review also dated 8th December 2023 set out the reliefs sought in the following terms . • A declaration that the said decision of the Respondent which was i. dated 5th December 2023 to refuse the Applicant's Advocates consent to privately prosecute the matter between the People vs Miles Sampa and Morgan Ngona was null and void. ii. An order of certiorari to remove into the High Court and quash the decision of the Respondent. R3 iii. An order of mandamus .to oblige the Respondent to reconsider his afore said decision in accordance with the law. w. Costs v. Interim relief infa rm of 1. an order that the grant of leave should operate as a stay of all acts and further proceedings in pursuance of this matter to which this application relates 2.A direction that the hearing of the application for judicial review be expedited. 3. The Applicant requests for an oral hearing of this application before a Judge pursuant to rule 3 (3) of Order 53 of the ruling of the Supreme Court of England 1965." 1.2 The Applicant goes further to state that the grounds on which the relief is sought include the following: • "(a) fllegality The Respondent failed to have regard to the public interest and administration of justice and acted for an improper purpose by irrationally concluding that civil and criminal matters cannot run concurrently. For that purpose, the decision by the DPP to deny consent to conduct a private prosecution in the People vs Miles R4 Sampa, was illegal at it was done without regard to the public interest and administration ofj ustice. (b) Irrationality The decision of the Respondent being the refusal to grant consent to the Applicant's Advocates to privately prosecute the matter of the People vs Miles Sampa and Morgan Ngona was irrational, improper and taken in bad faith. (c) Procedural impropriety The decision by the Respondent to disregard the established principle that civil and criminal matters can proceed simultaneously without infringing upon the parties rights, consequently the actions by the Respondent in denying the Applicant/ s advocates consent to privately prosecute the matter between the People vs Miles Sampa and Morgan Ngona is marred by procedural irregularities. (d) Wednesbury unreasonableness The Respondent made the decision to refuse to grant consent to the Applicant's Advocates to privately prosecute the matter between the People v Miles Bwalya Sampa and Morgan Ngona amounts to Wednesbury unreasonableness. (e). Further grounds as contained in the Affidavit filed herewith." RS 2. Affidavit evidence The Affidavit in support 2.1 The affidavit in support of the summons for leave to commence judicial review .proceedings was sworn by Raphael Mangani Na kacinda. He deposed that he was aware that one Miles Sampa whilst serving a suspension and without authority held an illegal extra ordinary convention at Mulungushi International Conference Center on 24th October, 2023 and purported that the Patriotic Front Political Party had held a General Conference at the said venue. That elections were held at the illegal extra ordinary General Conference at which Miles Bwalya Samp a and Morgan Ngona were purportedly elected as President and Secretary General respectively, of the Patriotic Front. 2.2 He was also aware that at the said conference the 2 whilst acting together as President and Secretary General submitted purported minutes on a foreign letter head to the Registrar of Societies requesting for the change of names for Patriotic Front office bearers. Following these events, He wrote a letter to the Lusaka Commanding Officer at Central R6 Police to report the fraudulent documents that Morgan Ngona, Mr. Sampa's agent, attempted to file at the Registrar of Societies . The letter was exhibited "RMNl." 2.3 He averred further, that he was aware that the two gentlemen have on several occasions attempted to lodge documents at the Registrar of Societies with a view of changing office bearers. He averred that it was against this background of fraudulent acts that on the 27th October 2023, he filed a complaint instituting criminal proceedings in the Subordinate Court of Zambia. He believed based on a advise from his advocates that all criminal proceedings in Zambia are prosecuted by the DPP or such person with his express consent. 2.4 He was aware that his advocates did on the 28th November 2023, write a letter to the DPP seeking permission to conduct a private prosecution in the matter of the People vs Miles Bwalya Sampa and Morgan Ngona. A copy the letter was exhibited "RMN2. "In his response through the Applicant's advocates, the DPP declined to grant consent to prosecute the matter reasoning that there was a civil matter R7 before another court broadening on the same facts. The letter of response is marked "RMN3." 2.5 It was his belief based on advice from counsel that the decision of the DPP to refuse to give permission to conduct a private prosecution can be challenged through judicial review. He further believed as advised that the reasons advanced by the DPP are not plausible as the law does recognise that a criminal and civil process can run in parallel and at the same time. 2.6 It was averred further that the DPP did not invite the Applicant or his advocates on record to review the evidence or even engage in discussion about the matter. The Applicant further believed that the named accused persons • have the backing of the State and that the actions of the DPP appear to confirm that position. 2. 7 That this state of affairs presents an appropriate opportunity for the courts to inquire into the decision making process as well as to determine whether to quash the decision of the DPP or not. He further believed that a grant of the application would not prejudice the Respondent R8 but rather be in furtherance of the interests of justice that will be served. Affidavit in opposition 2.8 The affidavit in opposition of exparte summons for leave to commence judicial review was sworn by Nkum biza Thelma Mumba who introduces herself to be the DPP. She deposed that the decision to deny consent to the Applicant's advocates to privately prosecute the case in issue was made after careful consideration of the facts, public interest, administration of justice, the integrity of the judicial system and the need to prevent and avoid the abuse of the legal process. 2.9 Further that she had noted that the Applicant had construed this denial of consent to suggest that criminal proceedings cannot be conducted alongside civil proceedings. That contrary to this assertion, the DPP stated that the refusal was to preserve the integrity of the judicial system and avoid abuse of the legal process. Therefore, that his decision was backed by his constitutional prerogative. R9 2.10 It was averred further, that this application in itself was an abuse of the court process because it suggests that this court can investigate and overturn the decision of the DPP. That granting the Applicant leave to commence judicial review proceedings would not only question the Constitutional powers of the DPP but also serve to undermine the integrity of the criminal justice system. It was deposed further that the assertion that the Accused persons were acting with State support is unfounded and without merit. Therefore, that the Applicant would be put to strict proof on this allegation. 2.11 She believed that the decision to deny the consent to prosecute was made in accordance with the Republican Constitution and in the best interests of the criminal justice system. As such that this is a proper case for the court to deny the application for leave to commence judicial review. Affidavit in reply 2.12 Raphael Mangani Nakacinda deposed to an affidavit in reply. He averred that he was aware that the deponent of RlO the affidavit in opposition is not the DPP and as such that all she had deposed to is based on hearsay. 2. 13 Further that he believed based on advice from counsel that the Respondent had delved into discussing the merits of the decision under challenge. He also believed as advised by counsel that at this stage the court's concern is solely to ensure that the Applicant is permitted to proceed to a substantive hearing only if satisfied that there is a case fit for further consideration rather than delving into the merits of the case. Further that if the DPP acts beyond the limits of legal reasonableness or authority, the court can intervene as it should in the present case. 2.14 He further believed as advised that it is the court's responsibility and in its inherent authority to ensure equitable treatment for all individuals appearing before it and that in no way is this application a misuse of the court's processes. He was also advised and believed that judicial review can be pursued against a public body or individual exerc1s1ng public functions and that the Respondent is not exempt from this principle. Rll - " No application for judicial review shall be made unless the leave of the court has been obtained in accordance with this rule" 3. 2 Reliance was also placed on the case of Derrick Chitala (Secretary of Zambia Democratic Congress) vs The Attorney General 1 wherein the Supreme Court held "After all, since Ridge vs Baldwin(l 962) AC 40, the distinction between judicial and administrative activities has been swept away and as a general proposition judicial review now lies against inferior courts, and tribunals and against any person or bodies which perform public duties or functions. There is, of course, no blanket immunity from judicial review even for the President" 3.3 It was submitted as clear from the above that the Respondent falls squarely within the ambit of a person or public body exercising a public function and thus amenable to judicial review. It was further submitted that article 264(4) of the Constitution establishes the court's authority to review the actions of any person or authority or institution even if they are not subject to the direction or R13 control of any other entity. That this includes the office of the DPP and the court's jurisdiction extends to an examination of whether the DPP has performed the functions of his office in accordance with the Constitution and other laws. 3.4 It was further argued that the Applicant had satisfied the requirements of demonstrating sufficient interest in the matter in terms of order 53 / 14 / 24 of the RSC. That the Applicant had shown that he is directly affected by the decision of the DPP. The rest of the submissions and authorities cited really set the tone for the grounds relied on for the relief sought and ultimately that there was as such sufficient basis for the court to find that this was a proper case fit for further inquiry at a substantive hearing for Judicial review. 3.5 The Applicant prayed that leave to commence judicial review be accordingly granted and that the leave should operate as a stay of the D PP's decision pending the substantive hearing. The Respondent's arguments in Opposition R14 3.6 In arguments filed in opposition, the Respondent rely on Article 180 (7) of the Constitution of Zambia (Amendment) Act No. 2 of 2016 of the Laws of Zambia which provides "The Director of Public Prosecutions shall not be subject to the direction or control of a person or an authority in the performance of the functions of that office, except that the Director of Public Prosecutions shall have regard to the public interest, administration of justice, the integrity of the judicial system and the need to prevent and avoid abuse of the legal process." 3.7 It was submitted that the Constitution not only provides for the power of the DPP but goes further to set out the parameters within which this power may be exercised. It was argued that the DPP exercised his power in line with the cited provision of the Constitution. 3.8 It was the Respondent's position that the private prosecution sought was in fact an abuse of the legal process. Further that the application before this court is an abuse of the judicial process because a Constitutional RlS provision like the one in contention in this case, ought to be interpreted by the Constitutional Court. 3.9 It was submitted that the DPP has the Constitutional duty to ensure that the rights of citizens are not indirectly violated or legitimized through the "facade of sanctioned criminal prosecutions". Reliance was placed on the case of Wang Shunxue v the Attorney General and Wang Qinghai2 wherein the Constitutional Court held that: "In our jurisdiction like other jurisdiction, the DPP retains control over all prosecutions to secure consistency in prosecutions so as to prevent abuse and bringing the law into disrepute by instituting proceedings which might otherwise result into vexatious private prosecutions. This also provides a safety mechanism for avoidance of abuse of criminal law to intrude into private citizens rights without proper mechanisms for checks". 3.10 In closing, it was submitted that the DPP's decision was not procedurally improper or illegal as it was within the ambit of his Constitutional mandate. The Respondent prayed that the application should be dismissed with costs. R16 Applicants Arguments in reply 3.11 In arguments filed in reply to the opposition by the Respondent, the Applicant cites the case of Arismic Ltd Foreign compensation Commission3 in which it was held that: "The court's reluctance to give effect to any legislative provision that attempts to exclude their jurisdiction in judicial review. Even when such an exclusion is relatively clearly worded, the courts will hold that it does not preclude them from scrutinising the decision on an error of law and quashing it when such an error occurs." 3.12 This quote is cited to counter the Respondent's submission that the court may not entertain an application for judicial review on account of the lack of statutory provisions permitting such action. Relying on C.K Scientific Group Zambia Limited vs Zambia Wildlife Authority4 the , Applicant contend that at this stage of the inquiry, the court only needs to farm a prim a facie view or to be satisfied on the available evidence as to whether this is a fit and proper case for an investigation at an inter parties hearing R17 for judicial review. That the paragraphs outlined in the affidavit in opposition show that the Respondent instead delves into the merits and demerits of the decision which is not the focus at leave stage. The Applicant reiterated that this is a case fit for the grant of leave to commence judicial review and prayed that the court grants the leave accordingly. 4. Hearing. 4.1 At the hearing held on the 8th April 2024, learned counsel on behalf of the Applicant Mr. Zimba relied on the documents filed in support of the application dated 8th December 2023 and 05th March 2024. He added that an application for Judicial review challenges the decision making process and not the power to or not to make that decision. That this case is not about the DPP's decision than it is a question of inquiry into the decision making process. 4.2 Further that based on the material presented on record, this was a fit and proper case for further inquiry by the court. He urged the court to grant the application as such R18 inquiry will not only clarify the law but have a rich jurisprudential effect. 4.3 Mrs. Besa the learned Senior State advocate relied on the documents filed in opposition dated 26th February 2024. In augmenting the Respondent's submissions, she argued that the DPP is not subject to Judicial review. She placed reliance on the Constitution of Zambia's definition of Public Officer that states that a public officer does not include a State officer, or Constitutional officer holder. She concluded that the DPP's decision are not subject to judicial review since he is not a public officer. 4.4 In response, Mr. Zimba relied on the affidavit and arguments in reply filed into court the 5th March 2024. He drew the court's attention to a decision of the Constitutional Court in the case of Milfred Maambo and 2 others vs the People. 5 in which it was argued that the court addressed the question of whether the DPP is subject to judicial review or not. That the court held that decisions of the DPP are subject to judicial review. R19 4. 5 Further that the court concluded that judicial review proceedings are unique proceedings which question administrative decisions. That the decision of whether to grant consent to prosecute or not is an administrate action subject to judicial review. It was thus Mr. Zimba's submission that the Applicant had met the threshold set out under order 53 of the White Book and this was therefore a proper case in which to grant the leave sought. 5. Court's consideration 5.1 I have carefully considered the application before me. In terms of Order 53 (3) (7) of the RSC, I am satisfied that the Applicant has demonstrated sufficient interest in the matter as he brings this action in his capacity as Secretary General of the Patriotic Front who were complainants in the criminal proceedings that are the subject of this application and hence directly affected by the decision complained about. 5.2 I am further satisfied in terms of Order 53 r 4 that the application has been brought promptly which is more or less within a few days of the decision contested. The rules R20 dictate a further test, by Order 53 / 14 / 55, I am to inquire whether at this state of the proceedings a prima facie case 1s established warranting a full investigation at a substantive application for judicial review. 5. 3 In the case of CK Scientific Group Zambia Limited vs Zambia Wildlife Authority, (supra) the Supreme Court held that an Applicant seeking leave to commence judicial review also e need to show that he or she has an arguable case and some li~elihood of succeeding in the substantive matter. 5.4 In Lungwanga vs Attorney General6, the Court of Appeal observed: "A court called upon to grant leave to move for judicial review will as rightly argued on behalf of the applicants rely on the material placed before it. It will then form a view on that material. If it is of the opinion that a prima facie case infa vour of the applicant has been made out, it will grant leave to move for judicial review. This is the remit of our jurisdiction in this application. We should state that necessarily the court is called upon to view the facts and the legislation in question not in depth but not perfunctorily either. A view should be formed on the material and that view should reveal an arguable case" R21 5. 5 In fallowing the above guidance, I anxiously considered the material placed before the court. The Applicant provides an account forming the basis of his belief that there was illegality, irrationality, procedural impropriety and unreasonableness inherent in the manner the DPP's decision was arrived at. The thrust of the arguments presented then center on one question, notably, whether or not the exercise of the DPP's power to decline authority to privately prosecute can be the subject of judicial review. 5.6 The Applicant contends that the DPP is not absolved from judicial scrutiny through review. The Respondent's position on the other hand is that his decisions are not subject of Judicial review. That the power resides in provisions in the Constitution and therefore that the proper fora to challenge such authority if at all, lies in the Constitutional Court. 5.7 The High Court has in the recent past been faced with similar applications. Leave to commence judicial review has been sought in relation to the exercise of authority by public officials traced to the Constitution. In the matter of Davies Mwila v the Attorney General7, the Applicant moved the R22 ., High court to challenge the refusal by the Hon. Speaker of the National Assembly to declare the Roan Constituency vacant through judicial review proceedings. My learned sister Lady Justice M. Kombe delivered what I must compliment to have been a very well thought out and reasoned ruling 1n which she concluded that a determination of whether the Hon Speaker's decision was illegal and unreasonable inescapably enjoins the High Court to venture into the construction or interpretation of article 72 of the Constitution which falls outside the bill of rights and thus the preserve of the Constitutional Court. 5.8 More recently my Learned brother Mr. Justice G. Mulenga considered an application in the matter of The People vs Judicial complaints Commission, Vincent Blackskin Malambo, Chad H Muleza, Dean A Mwansa Mumba and the Attorney ex-parte (Timothy Katanekwa)8 in which , the Applicant challenged the decision of the Judicial Complaints Commission to take evidence in the manner it did and recommend his removal from office of Judge of the High Court by the Republican President. The court R23 reasoned that a determination of the grounds upon which the Applicant asked the court to grant relief notably excess of jurisdiction, unreasonableness, irrationally and illegality would ultimately turn upon the construction of the content and scope of articles in the Constitution which is the Constitutional Court's domain. That the Constitutional court was therefore the right forum at which an action should have been commenced. 5. 9 The question for present purposes 1s, am I faced with a similar question and if so what position am I to take granted the Applicant's assertion in his submission through counsel that the Constitutional Court has in the matter of Milford Maambo and 2 Others vs the People (supra) conclusively pronounced that the DPP's decisions are amendable to judicial review. I set out my holding below. 5.10 The Applicant in this case, seeks a declaration that the decision of the Respondent dated 5th December 2023 to decline to sanction a private prosecution in the matter between the People vs Miles Sampa and Morgan Ngona was null and void. The Applicant also prays for an order of R24 certiorari to remove int o the High Court and quash the decision of the Respondent; and an order of mandamus to compel the Respondent to reconsider his decision "in accordance with the law'' 5.11 The grounds that the relief is sought as observed earlier include illegality, irrationality, procedural impropriety and Wednesbury unreasonableness. The grounds on which relief is sought became a material consideration when a court is assessing what it is being called upon to determine at the substantive hearing. 5.12 In Nyampala Safaris Limited and others vs Zambia Wildlife Authority and Others9 it was held inter alia that a decision of an inferior court or public authority may be quashed where that court or authority acted without jurisdiction, or exceeded its jurisdiction, or failed to comply with the rules of natural justice where the rules are applicable; or where there is an error of law on the face of the record; or the decision is unreasonable in the Wednesbury sense. To be specific in this regard, that it was a decision which no person or body of persons properly R25 directing itself on the relevant law and acting reasonably could have reached. 5.13 the Applicant in his skeleton arguments cites the case of North-Western Energy Company Limited V the Energy Regulation Board 10 wherein the court held: "Under the ground of illegality, the court seeks to establish whether the decision maker acted within the purview of the law that regulates the decision making power and has consequently given proper effect to it ..... Thus on administrative decision, or action is flawed and illegal if it falls outside the parameters of the law that regulate the exercise of the power ... a decision is illegal if it ... (i) Contravenes, or exceeds the terms of the power which authorizes the making of the decision (ii) Pursues an objective other than for which the power to make the decision was conferred. (iii) It is not authorized by any power and (iv) Contravenes or fails to implement a public duty" 5.14 Kombe Jin her ruling in the matter of Davies Mwila vs the Attorney General (supra) cited the learned authors of the text "Applications for judicial review: Law and Practice R26 of the Crown office" in which the authors state at page 13 that: "It is convenient to deal with illegality under four broad heads. All depend upon the construction of the governing legislation or in the case of prerogative powers, the ambit of the power in question." 5.15 She further cites the case of Andreas Panani v The Attorney General 1n which Matibini J as he was then commented. "The task for the courts in evaluating whether a decision is illegal is essentially one of construing the content and scope of the instrument conferring the duty or power upon the decision maker. The courts when exercising this power of construction are enforcing the rule of law by requiring administrative bodies to act within the "four corners" of their powers and duties." 5.16 I am thus persuaded to agree that a determination of whether an action falls under the grounds the relief 1s sought will necessarily imply an examination of the applicable law. In other words the determination of whether a decision is illegal or not depends on the interpretation and R27 or construction of the instrument conferring the duty upon the decision maker. Thus in the Lunqwanqwa vs Attorney General considered earlier above, the Court of Appeal concluded that: "We should state that necessarily the court is called upon to view the facts and the legislation in question not in depth but not perfunctorily either. A view should be formed on the material and that view should reveal an arguable case" {emphasis added) 5.17 What then is the law subject to consideration in this case? The authority by which the DPP gives consent to prosecute is conferred in section 89(1) of the CPC which provides that: "Any Magistrate inquiring into or trying any case may permit the prosecution to be conducted by any person but no person other than public prosecutor or other officer generally or specifically authorized by the Director of Public Prosecution in this behalf, shall be entitled to do so without permission." 5.18 However justified as the basis of the decision, the Respondent relies on article 180 (7) of the Constitution provides that: R28 "The Director of Public Prosecutions shall not be subject to the direction or control of a person or an authority in the performance of the functions of that office, except that the Director of Public Prosecutions shall have regard to the Public interest, administration of Justi<;e, the integrity of the judicial system and the need to prevent and avoid abuse of the legal process." 5.19 It is this article that defines the parameters of the exercise of the power of the DPP and a determination of whether or not he followed these parameters in the decision making process becomes inevitable if a pronouncement of illegality is to be made. The consideration of this article becomes unavoidable in such circumstances. The record will show that the Applicant acknowledges this fact in their own submissions in support of the summons for leave to apply for judicial review. They submit at page 6 that. "It is our submission that article 180 (7) of the Constitution sets out the parameters within which the Director of Public Prosecutions (OPP) operates. It states that the OPP shall not be subject to the direction or control of any person or authority in the performance of their functions. R29 However it also mandates the OPP must have regard to specific factors, namely the public interest, administration of justice, integrity of the judicial system, and the need to prevent and avoid the abuse of the legal process. My Lord/my Lady, article 180 (7) of the Constitution imposes qualifications on the OPP in the exercise of the authority granted. The OPP's discretion to permit or deny private prosecutions is not absolute, It must be exercised within the framework defined by the constitutional provision. Failure to have regard to these consideration impacts on the legality of the OPP's decision." (Emphasis added). 5.20 Clearly from the above excerpt and the flow of the entire submission, it can be concluded that even the Applicant himself appreciates the need for the consideration of the above stated article. The court is further invited to consider the import of article 267(4) of the Constitution which provides that: "267 (4) A provision of this Constitution to the effect that a person, an authority or institution is not subject to the direction or control of a person or an authority in the performance of a function, does not preclude a court from exercising jurisdiction in relation to a question as to whether that person, authority or R30 institution has performed the function in accordance with this Constitution or other laws." 5.21 The next question then 1s, does this court have the jurisdiction to delve into the interpretation of the articles? Matters relating to the interpretation of the Constitution are provided for under article 128 (1), (2) and (3) of the Constitution. The article is reproduced below for ease of reference. "128. (1) Subject to Article 28, the Constitutional Court has original and final jurisdiction to hear- (a) a matter relating to the interpretation of this Constitution; (b) a matter relating to a violation or contravention of this Constitution; (c) a matter relating to the President, Vice-President or an election of a President; (d) appeals relating to election of Members of Parliament and councilors; and (e) whether or not a matter falls within the jurisdiction of the Constitutional Court. (2) Subject to Article 28 (2), where a question relating to this Constitution arises in a court, the person presiding in that court shall refer the question to the Constitutional Court. (3) Subject to Article 28, a person who alleges thatR31 (a) an Act of Parliament or statutory instrument; (b) an action, measure or decision taken under law; or (c) an act, omission, measure or decision by a person or an authority; contravenes this Constitution, may petition the Constitutional Court for redress." 5.22 Article 28 of the Constitution provides inter alia that "28. (1) Subject to clause (5), if any person alleges that any of the provisions of Articles 11 to 26 inclusive has been, is being or is likely to be contravened in relation to him, then, without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply for redress to the High Court ... " 5.23 It is therefore beyond debate from the above articles that it is the Constitutional Court that is granted the original and final jurisdiction in such interpretation except matters falling under part III whose jurisdiction resides in the High court as per article 28 above. 5.24 Articles 180(7) and 267(4) of the Constitution under consideration in this case do not fall under part III which makes it a matter solely for interpretation by the R32 Constitutional Court. The Constitutional amendments and introduction of the Constitutional Court has as such had an effect on the extent and scope of judicial inquiry through reviews by the High Court where the authority, power or duty as the case may be is traced to a Constitutional prov1s10n. 5.25 I would therefore wholesomely endorse and adopt Mulenga J 's conclusion in the case of The People vs Judicial Complaints Commission, Vincent Blackskin Malambo, Chad H Muleza, Dean A Mwansa Mumba and the Attorney General exparte (Timothy Katanekwa) (supra), wherein he posits: "The clear language of the 2016 Constitutional amendment now implies that whereas relief was previously obtainable from the High Court against a public authority that made a judicially reviewable decision that violated a Constitutionally stipulated right or duty, the legal position has now been modified to take away some of that power. Differently expressed, the Constitutional amendments that have taken place in the Zambian legal order have had the effect of somewhat limiting the High Court's power in judicial review proceedings in cases R33 which require interpreting non-bill of Rights Constitutional Provisions ... " He goes on to conclude that: "Simply put, Order 53 says the High Court has jurisdiction to judicially review the actions of public officials and bodies to determine whether they understand the law and scope of the law and scope of the law under which they have acted, yet if the law allegedly contravened is the Constitution, Article 128 says you cannot go to the High Court but another Court." 5.26 The court's conclusion essentially being that as the source of the law infringed resides in the Constitution and outside the bill of rights, the High Court does not have the jurisdiction to consider the application and it must be rightfully in the domain of the Constitutional Court. 5.27 Beyond the claim of illegality, a consideration of whether the DPP acted irrationally, unreasonably, or whether there was procedural impropriety due to breach of natural justice in the decision making process cannot in my estimation, be done in isolation of the review of the provision conferring the power or in this case setting out the parameters by R34 ., which the power was to be exercised. There is 1n other words no escape from a consideration of this Article which is outside the purview of the High Court's consideration. 5.28 This brings me to the next question I had posed which is whether the High Court can review the decisions of the DPP in light of the reported holding of the Constitutional Court in the case of Milfred Maambo and 2 others vs the People (supra) as argued by the Applicant. To give context, at the hearing of the application, it was argued on behalf of the Applicant that the Constitutional Court had in the case cited considered the question of whether or not the DPP's power could be the subject of judicial review. It was submitted that the court held that the office is not absolved from judicial scrutiny and hence the reliance that was placed on the case. 5.29 I have carefully read through the decision. The issue for consideration before the court was whether there was an obligation placed on the DPP to give reasons or to seek the court's leave before entering a nolle prosequi. The majority decision of the Court held that the Constitution imposed no R35 such obligation and restated the principle that the office of DPP is not subject to the supervision or control of any body or authority in the exercise of its power. 5.30 It was the dissenting judgment handed down by her Ladyship Justice Munalula JC as she was then, that concluded the fallowing: "For the reasons given, I am of the firm view that the DPP enjoys sole discretion to enter a nolle prosequi in any criminal case before the courts. However, in entering a nolle prosequi the DPP must give reasons to the court in accordance with Article 180 (7). This prevents potential abuse and facilitates judicial review if necessary. Through judicial review, the court may find that the reasons do not comply with the exception in 180 (7). In those circumstances the entry of the nolle prosequi cannot succeed. This is what the letter of the law provides today and it is what it has always provided." 5.31 As a puisne Judge I am of course bound to abide by the principles of stare decisis and judicial precedent. I dare not take an alternate path. I however, respectfully find that this does not apply to the present case. A dissenting decision does not have precedential or binding effect unless adopted R36 ,- I I ..... by the majority. The majority decision always carnes the day. 5.32 The importance of minority judgments cannot however be down played. Amanda Spies writes an interesting article on the subject titled "The importance of minority judgments in judicial decision making; an analysis of Minister of Justice and Constitutional Development vs Prince)) published in South African journal on Human Right volume 35 number 4, 2 October 2019 pp 429-440. 5.33 She opines that dissent plays an important role in judicial decision making and that it can have far reaching impact on the development of the law. She advocates the importance of analyzing the role that dissenting judgments play in legal decision making and influence on the functioning of a court. The article analysed the judgment in Prince v President, Cape Law Society13 and traces how the dissenting judgment became the majority decision in Minister of Justice and Constitutional Development v Prince 4 1 . R37 5.34 The point I make is that important as the dissenting judgment is for the build of jurisprudence, it is not the decision of the court. It cannot therefore be used to represent the position taken by the court. As things stand therefore I find that this court has no jurisdiction to go into the examination of the Constitutional provisions and the proper court at which redress should have been sought in this case is the Constitutional Court. 5.35 In both the Davies Mwila vs Attorney General and the case of The People vs Judicial Complaints Commission, Vincent Black-skin Malambo, Chad Muleza, Dean A Mwansa Mumba and the Attorney General exparte (Timothy Katenekwa), my colleagues concluded that a transfer to the Constitutional Court under 128 (2) (c) is not tenable in light of the Supreme Court decision in Felix Chipota Mutati & Others vs Winnie Zaloumis 15 which held that: "High Court is limited to referring Constitutional issues on matters that are property commenced in that court and over which it substantially has jurisdiction to hear and determine." R38 5.36 I am bound by this decision. Therefore, having found that I have no jurisdiction to further consider this matter, I do not have any jurisdiction to refer the matter as the law dictates that the action must itself be properly commenced from the get go. The proper mode and fora for the Applicant to pursue redress is by petition in the Constitutional Court. I would accordingly dismiss the application for the above reasons. As this is a matter of considerable public interest, I make no order as to cos~ JuN_ Dated at Lusaka the ................... day of ...................... 2024 JUDGE R39