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The Tribunal on Mutembo Nchito – My reflections (Part 2)

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Mutembo Nchito

Mutembo Nchito

By Chewe Mubiana

The Tribunal appointed by HIS EXCELLENCY MR. EDGAR CHAGWA LUNGU President of the Republic of Zambia has excited a lot of interest and intrigue from Zambians and many other stakeholders including the international community.
The reason for the interest and intrigue emanates from the fact that the Director of Public Prosecution (DPP) MR. MUTEMBO NCHITO (SC) is a protected office under our constitution. The interest in the Tribunal also emanates from the fact that His Excellency President Edgar Chagwa Lungu was supported by Former President, HIS EXCELLENCY MR. RUPIAH BWEZANI BANDA who is currently facing criminal charges being prosecuted by the DPP’s Office.
To add to the intrigue, a MR. RICHARD LAZALOUS SAKALA, the owner of the Zambia Daily Nation Newspaper who was prosecuted and jailed for 5 years under the Prosecution of Mr. Mutembo Nchito (SC) is calling for the blood of the DPP. Others who are in the fray include the Former Deputy Minister of Finance, NEWTON NG’UNI and MR. BREBNER CHANGALA all of whom have been prosecuted by Mr. Mutembo Nchito during his time as DPP.The allegations which have led to the Director of Public Prosecutions being suspended pending the outcome of the Tribunal findings are as follows:
1. That the DPP has repeatedly abused the authority of his office by indiscriminately entering “nolle prosequi” in cases in which he is alleged to have an interest of his own;
2. That the DPP allegedly mis-conducted himself by taking over prosecution of a matter before Senior Resident Magistrate, Lameck Mwale where the DPP was personally an accused person and proceeded to enter a nolle prosequi in his own case thereby defeating the ends of justice;
3. That the DPP allegedly uttered a false document procured by means of false and fraudulent representation to MR. JUSTICE GREGORY PHIRI, Judge of the Supreme Court, under Cause Number 1998/HP/2097 whereby he inserted two extraneous paragraphs in an order of court thereby misleading the Court;
4. That the DPP acted with intentional disrespect to judicial proceedings and to MR. JUSTICE NIGEL KALONDE MUTUNA, Judge of the High Court;
5. That the DPP allegedly took over matters in which he had a conflict of interest;
6. That the DPP allegedly connived with and instigated officers from the Drug Enforcement Commission (DEC) to plant illicit drugs on Mr. Brebner Changala and Mrs. Agness Kawandami.

Yesterday, I dealt with the allegation that the DPP has repeatedly abused the authority of his office by indiscriminately entering “nolle prosequi” in cases in which he is alleged to have an interest of his own. In the end, it was established that the allegation was unwarranted, irregular and not based on the law as established. My considered opinion was that the DPP acted legally and therefore did NOT abuse the authority of his Office.

Today, I wish to deal with the second allegation that the DPP allegedly mis-conducted himself by taking over prosecution of a matter before Senior Resident Magistrate, Lameck Mwale where the DPP was personally an accused person and proceeded to enter a nolle prosequi in his own case thereby defeating the ends of justice. The issue of entering a “nolle prosequi” was interrogated yesterday and therefore that part of the allegation falls off because it is the preserve of the DPP’s office to enter a “nolle prosequi’.
However, of interest to this postulation is the allegation that the DPP mis-conducted himself by taking over prosecution of a matter before Senior Resident Magistrate, Lameck Mwale where the DPP was personally an accused person and proceeded to enter a nolle prosequi in his own case thereby defeating the ends of justice.
In this regard, I wish to direct the reader’s mind again to Article 56 OF  THE Zambian Constitution which states thus:
(1) There shall be a Director of Public Prosecutions (DPP) and who shall, subject to ratification by the National Assembly, be appointed by the President.
(3) The Director of Public Prosecutions SHALL have power in ANY CASE WHICH HE considers it desirable so to do —
a) to institute and undertake criminal proceedings against any person before any court, other than a court martial, in respect of any offence alleged to have been committed by that person;
B) TO TAKE OVER AND CONTINUE ANY SUCH CRIMINAL PROCEEDINGS AS HAVE BEEN INSTITUTED OR UNDERTAKEN BY ANY OTHER PERSON OR AUTHORITY; AND
c) to discontinue, at any stage before judgement is delivered, any such criminal proceedings instituted or undertaken by himself or any other person or authority.
(4) The powers of the Director of Public Prosecutions under clause (3) may be exercised by him in person or by such public officer or class of public officers as may be specified BY HIM, acting in accordance with his general or special instructions:
Article 56(3) (b) of the Zambian Constitution is Cristal clear in its construction. It states that the DPP has the powers in any case which HE considers desirable to take over and continue ANY criminal case whether instituted by him or another person or authority. The Constitution does not state that the DPP cannot take over a case in which he is involved or has an interest. In the allegation, the Tribunal is trying to establish whether or not the DPP mis-conducted himself by taking over a case in which he as DPP was involved. This is my view is an exercise in futility.

Unless the Constitution of the Republic of Zambia is changed, there is nothing irregular or wrong which the DPP did in taking over a case in which he was personally involved.It is my considered view that the DPP may have breached some of the rules related to Professional Conduct and Ethics. In any profession, there is a requirement for fiduciaries to act in good faith and to avoid conflict of interest. There is therefore a case for Law Association of Zambia to interrogate and see if the DPP breached his fiduciary duties. However, based on the terms of reference as couched by the Tribunal, the DPP is again found to have acted legally and within the four corners of the Constitution.

Tomorrow, I shall interrogate the third allegation leveled against the DPP.

 

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Start: 2019-07-01 End: 2019-07-31