THE State has asked the Supreme Court to dismiss an appeal by former republican president, Rupiah Banda challenging the decision of the High Court to decline to stay the decision of the national assembly to lift him his immunity so that he can be open to prosecution.
Mr Banda has in this matter sought leave of the High Court to challenge the National Assembly’s decision to remove his immunity from prosecution on a simple majority of 80 out of a total of 158 Member of Parliament (MPs).
High Court judge Annie Sitali granted him permission to commence judicial review but she declined for it to operate as a stay.
While the State appealed to the Supreme Court against the decision of the High Court to grant Mr Banda leave to commence judicial review of parliament’s decision to lift his immunity, Mr Banda on the other filed a cross appeal challenging its decision to decline leave to commence judicial review grated to him to operate as a stay.
But the State has objected to Mr Banda’s cross appeal and asked the Supreme Court to dismiss it.
The Attorney General Chambers in its in response to Mr Banda’s cross appeal filed in the Supreme Court yesterday argued that Ms Justice Sitali did not error in her ruling when she declined to stay the lifting of Mr Banda’s immunity.
It said that it was misleading to argue that an order of stay in judicial review proceedings was ancillary to the order granting leave to move for judicial review.
It stated that order 53 rule 3 (10) of the Supreme Court practice, gave discretion to the judge whether or not to grant the stay of the proceedings to which applicant related.
Mr Banda is arguing that the decision by parliament to lift his immunity is illegal and irregular especially that he was denied an opportunity to be heard.
Mr Banda said that it is unreasonable for the speaker Patrick Matibini to proceed with the motion notwithstanding that a petition challenging the state’s intention to lift his immunity had been already filed in the high court.
In his cross appeal, Mr Banda said Ms Justice Sitali erred in law and in fact when she ruled that the leave will not operate as a stay of the decision made by the National Assembly to remove the applicant’s immunity.
Mr Banda is court facing prosecution on two different matters.