By GRACE CHAILE
Mr Mulilo Kabesha, the Attorney General now wants the Constitutional Court to set aside, reverse and discharge the said ruling dated May 19, 2022, contending that civil proceedings cannot be used to arrest criminal proceedings.
Justice Musaluke said that allowing the criminal proceedings in the subordinate court to continue would be prejudicial to the petitioner as the constitutional issues raised in the petition ought first to be determined by the Constitutional Court.
He said the Constitutional Court had the jurisdiction under article 128(2) of the Constitution to stay civil or criminal proceedings before any court pending determination of constitutional issues raised.
He said the decision to stay the criminal proceedings was aimed at preserving the integrity of the actions before the superior court.
But in an affidavit in support of notice of motion, Mr Kabesha argued that the Constitutional Court had no jurisdiction to stay criminal proceedings simply because of the petition pending before it.
“A party to any proceedings before this court cannot use the proceedings before this court to stay criminal proceedings whose net effect is to arrest the criminal proceedings as was done by the single judge to this court,”
“We implore this court to set aside, reverse and discharge the ruling of the single judge dated 19th May 2022 in the interest of justice,” he said.
In his petition, Mr Lungu is seeking a declaration that his arrest and commencement of criminal proceedings against him following his re-arrest is an abuse of criminal proceedings and ultra vires articles 180(7) and 2016 (C) of the constitution.
He seeks an order of prohibition directed at the respondents stopping them from investigating, arresting and prosecuting the petitioner in respect of his performance as Provisional Liquidator of KCM.
Mr Lungu is also seeking an order of certiorari directed at the Attorney General to remove into court and quash the State’s decision to prosecute him on the charge of being found in possession of property suspected to be proceeds of crime.
He wants an order of mandamus directed at DEC to release all his documents, books, accounts and properties seized in the course of investigations.
He wants the criminal proceedings before the Lusaka Magistrates Court stayed pending determination of the petition.
Mr Lungu contends that it was unreasonable and an abuse of criminal proceedings to seize property, arrest, charge and prosecute him for acts that KCM had not complained of.
According to an immunity agreement dated March 22, 2022, the Director of Public Prosecutions (DPP) signed indicating that the DPP granted Mr Lungu immunity from present or future prosecution based on the facts.
The DPP indicated that the agreement signed was not an admission of criminal culpability on the part of Mr Lungu.
