THE state has argued that Lusaka High Court judge Annie Sitali did not err when she refused to stay the decision by the National Assembly to remove Rupiah Banda’s immunity.
Judge Sitali granted Banda leave to commence judicial review proceedings challenging the decision of the National Assembly to remove his immunity but she refused to grant him a stay of the decision. But Banda appealed to the Supreme Court against judge Sitali’s decision, arguing that the judge erred in law and in fact when she ruled that the leave could not operate as a stay of the decision made by the National Assembly to remove his immunity.
The state yesterday filed a response to Banda’s cross appeal, urging the court to dismiss it with costs. It argued that judge Sitali did not err in her ruling as regards the non-granting of a stay in the matter. They submitted 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 is therefore our prayer that this ground of appeal be dismissed with costs,” read the state’s response. The state further 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 the application related. “A proper reading of order [cited above] clearly demonstrates that the court has the discretion to grant a stay or not and that it is not mandatory as it depends on the discretion of the court,” it stated.