By Mutembo Nchito
As you know Zambia lost its fifth President 0n October 28, 2014. This is the President that requested me to join the public service as Director of Public Prosecutions. My mandate was to transform the Ministry of Justice’s department of Public Prosecutions into an autonomous National Prosecution Authority. This I embarked on with a reasonable measure of success.
That said one of the main reasons I was hired was my history of Anti-Corruption prosecution. Since 2002 I have prosecuted many cases of high profile corruption that have seen me indict two former presidents, a chief of intelligence, a Zambia Army Commander, a Zambia Air Force commander and a commander of another defence force called Zambia National Service. I also prosecuted a former Minister of Finance and his permanent secretaries for corruption and abuse of office among many other high profile individuals.
Except for the first president who was acquitted in very controversial circumstances most, if not all the cases I prosecuted resulted in convictions. As you can imagine this has earned me very powerful enemies.
At the time of the death of our fifth president I was in the middle of prosecuting the fourth president for abuse of office by personalizing the proceeds of a government contract which, in concert with his family he banked in Singapore. This money once commingled with funds laundered through Mauritius was transferred to Japan for purchases that were then shipped to Zambia. This case has reached an advanced stage. I have closed the state’s case and it is now for the court to determine whether he has a case to answer.
The death of our fifth president required the election of a new president in ninety days. This happened on 20 January 2015. The new president is Mr Edgar Chagwa Lungu who is from the same political party as the late president. Interestingly the former president that I am prosecuting Mr Rupiah Banda switched his support from his own Party to Mr Edgar Chagwa Lungu the ruling party’s candidate who publicly acknowledged financially benefiting from Mr Banda for his campaigns.
Some time before the Election “The Post” a leading Zambian newspaper published an article that claimed that the quid pro quo for Banda’s support for Lungu was that his cases in court would be stopped. Citing sources who were allegedly close to the discussions the post disclosed that to end the court cases Banda and Lungu agreed that a way should be found to remove me from the office of Director of Public Prosecutions to make their work easier. Once this scheme was publicly exposed it appears that new approaches had to be found.
On Thursday 5 February my elder brother Mr Nchima Nchito SC with whom I practiced law before becoming DPP was called by his former Law School class mate who also happened to be one of the new president’s campaign managers a Mr Kelvin Fube Bwalya who asked to meet him. When my brother went for the meeting Mr Bwalya informed him that he had a message for me from the President. The message was to the effect that the President wanted me to resign or face an acrimonious removal process. My brother wondered why the President was using a private individual to deal with the removal of the DPP. He wondered why the President could not call me. He was told that the President did not want to speak to me. When he pressed this envoy further Mr Bwalya said he thought that the reason I was being asked to resign was because of the promises President Lungu made to former President Banda who I was prosecuting. When my brother pressed further asking what grounds I should resign on Mr Bwalya was unable to provide any meaningful answer except to insist that it was in my interest to resign.
When the message was relayed to me my response was that the least they could do for me was to tell me what wrongs I am supposed to have committed to warrant my removal from a constitutionally protected office of DPP in order to allow me to make an informed decision. None have been supplied to me.
I have kept receiving warnings that the new government was taking aim at me. On Monday 9 February I received a tip off from a Journalist that he had received information that in order to facilitate the ending of cases involving former President Banda and investigations against members of his family I would be arrested to create a basis for my removal from office. I found this information ridiculous and difficult to believe. By our police standing orders a constitutional office holder such as myself cannot be arrested unless there is direct presidential permission. If the president is convinced that there is ground for the arrest of a constitutional office holder such as myself then he ought to have grounds upon which to pursue my removal as prescribed by our constitution. The president would then have to set up a tribunal to investigate allegations of misbehaviour or incompetence which if proved would lead to my removal. The standard of proof before a tribunal is much lower than that what is required in a criminal trial. Why have they chosen the route of criminal proceedings?
From what I can see so far this route seemed easier to manipulate to achieve their goal of removing me quickly. The proper way of dealing with serious allegations of crime is to report them to the police or other Law enforcement agencies who in turn should carry out an investigation to determine whether there is evidence showing that a crime was committed. If such evidence exists then that suspect is brought before a court and is prosecuted. In my case they chose a method reserved for minor offences which can be commenced by way of a complaint before a magistrate. The magistrate would ordinarily issue summons against the person the complaint is made. What they did in my case is to get a very close associate of the new president went to lodge a criminal complaint against me. This person they used is called Newton Ngu’ni a former deputy Minister for Finance. It is not the first time this gentleman is being used in this way. After the unfortunate death of our fifth President he was used to start a court action that attempted to unconstitutionally remove the acting President then Dr Guy Scot. It was very clear then that he was working with our current President who was defence minister then but thought that he should have been the acting President.
Mr Ngu’ni went to the Lusaka Magistrates court with a barrage of allegations ranging from accusing me of having forged a Judgement in favour of my client then the Central Bank of Zambia and planting drugs on a political activist who is close to former President Banda. He went before three courts in Lusaka who essentially advised him to provide evidence of such serious allegations against a serving DPP. Instead of providing evidence he decided to withdraw the complaint and spread his forum shopping to a town which is fifty kilometres outside Lusaka called Chongwe. Why are they avoiding the due process of the law if as they say there is evidence of criminality against me?
Mr Ngu’ni, the new President’s associate went before a a very junior magistrate in a rural town fifty kilometres outside Lusaka, who he seems to have convinced to immediately issue an arrest warrant on charges that have not been investigated by any competent authority. Armed with this warrant he rushed to publish it on the online media with screaming headlines that the DPP would be arrested.
I assembled a team of lawyers to advise me. Although I could, arguably stop this action with a Nolle Prosequi as I am constitutionally entitled to do I chose to proceed to court to obtain Leave to Commence Judicial Review Proceedings which was granted and adjudged to operate as a stay of the warrant arrest from an inferior tribunal. This order was granted after midnight in the early hours of Thursday 12 February. This order notwithstanding the police arrived at my house at 05:00hrs to effect the warrant as they put it. I showed them the court order that granted leave for judicial review and stayed the warrant of arrest. They refused to obey the court order and bundled me in vehicle and drove me fifty kilometres outside Lusaka where I was thrown into a crowded cell like a common criminal.
My ride to Chongwe was interesting. I had a police motorcade of at least six vehicles and about 30 armed paramilitary police and plain clothes police men. This raised the question was this a mere execution of a simple arrest warrant from Chongwe or was there more to it? In our system there is no way a private citizen could command such a force without the involvement of the President.
After I was thrown into a cell my lawyers rushed back to the same Judge who had granted the order of stay fifty kilometres away in Lusaka. He gave further orders whereby he exercised his supervisory authority over the magistrate’s court by calling the case file to his court and quashing the warrant of arrest and declaring all the Chongwe proceedings null and void ab initio because the Chongwe court did not have jurisdiction over me in matters where the crimes where allegedly committed in Lusaka! Even with the clear order the police have tried to remand me in custody. Who is pulling their strings?
It is easy for me to resign as requested by the President’s campaign manager but what does this do to the independence of the office of Director of Public Prosecutions? I am quite happy to suffer the indignities being thrown at me than to compromise the independence of my office and jeopardize all other constitutional office holders.
This is a message I later sent to colleagues after the Nolle
I hope you have had an opportunity to read my account on how warrants were obtained at courts that had no Jurisdiction over me and when I obtained court orders to stop their execution the government pressured the police to ignore court orders and I was arrested and thrown a crowded police cell over allegations that have never been investigated by any one. This account is on the forum and recommend that you read it if you haven’t already. I have not nor will I ever stand in the way of any investigation. We are not dealing with a normal situation at all. This is a private prosecution calculated to remove me without following due process.
On Friday I was forced to use my constitutional powers to defend the office of DPP by entering a Nolle Prosequi. This in theory stops prosecution of a matter. It does not result in an acquittal but temporary discharge. We normally use this procedure to allow matters to be taken out of court to facilitate further investigations.
I used this power because the charges levelled against me have never been investigated by anyone and are politically calculated to provide an immediate basis for my removal from office because of unverified wild allegations such as me being accused of planting drugs on an a political activist. I have told the complainant and his puppeteers to report their charges to the police if they believe I have committed any crime. This will afford me due process. If I am found wanting I would be removed from office in conformity with the law.
I avoided using the Nolle until it became inescapable. We asked the court to give us time to raise constitutional issues given the way the matter was commenced and the nature of the office of DPP. This was refused. Everything is being done in a hurry. This is abnormal and one was left wondering why the court behaved in this way. Collusion is not uncommon. Left with no choice and to send the message that for as long as I am DPP I will not allow anyone to interfere with the office if I can stop it. I deployed this option given the existential nature of the threat on the office of DPP. This forces those orchestrating this charade to follow the Constitution if they wish to remove me. This is a temporary respite in this drama and in no way immunises me from prosecution if I have committed a crime.
AFTER ARREST AND ARRAIGNMENT
The drama around my office has continued. After I entered the Nolle Prosequi on Friday 20 February 2015 the court set Monday 2nd March for its Ruling. Although there is a whole big story around the ruling and efforts to frustrate it, suffice to say that it was in my favour. The matter was stopped and I was discharged which is not an acquittal.
This left me with a number of actions in the Supreme and High Courts of our country in which I was seeking to enforce my rights and the rights of my office. The key right that I wished to be enforced is my right to an acquittal once the complainant had withdrawn his complaint. This right is clear in our Criminal Procedure Code.
Some of you may recall that this drama started when I was unlawfully arrested and consigned to a police cell in Chongwe. The illegal arrest warrant from Chongwe was obtained after attempts in Lusaka proved difficult. The current President’s associate who took the complaint to the Lusaka courts withdrew it when the court was due to rule on it. Why he withdrew is not clear but by law I am entitled to an acquittal once a complaint is withdrawn. This is why I am appealing.
Before proceeding to the High Court we appeared before the magistrate who dealt with the withdrawn Complaint. After bringing the Law to his attention he committed himself to issuing the acquittal certificate later in the morning. When my lawyers went back to collect the document he changed his position claiming that this matter was never properly before him and therefore he could not give me the certificate of acquittal which the Law prescribed. What had happened between the time he promised to issue the certificate and the time my lawyers went to see him to collect what he had promised? With this turn of events we decided to appeal to the High Court. This appeal is still pending.
In a new twist and notwithstanding that there are several matters in court, the President decided to suspend me and constitute a tribunal to investigate allegations made by a staunch supporter of the former president Rupiah Banda whom I am prosecuting. This is after he had previously announced that he had nothing to do with my persecution and that he would not intervene until the courts finished their work. One is left to wonder what made the President change his mind? The allegations have never been investigated by anyone nor has anyone put them to me so that I may respond to them as is the public service practice before a person is brought before any disciplinary hearing. In other words someone such as the president needed to write to me to inform me that there was a complaint against me, give me the particulars and ask me to exculpate myself. This has never been done.
As things stand I am facing a removal tribunal without ever having been asked to respond to the charges as a starting point. In terms of our public service, practice no employee may be arraigned before a disciplinary hearing without having been given the opportunity to exculpate him or herself. This has not been done for me. Spurious charges have been cobbled up against me and I stand suspended.
As I indicated earlier, there are current proceeding in our courts regarding a lot of the issues I am supposed to respond to at the tribunal. In terms of our Administrative Law, an administrative tribunal may not delve into matters that are currently the subject of court proceedings. This offends the sub judice rule in Administrative Law.
Having been suspended, I chose to litigate the anomaly discussed above. Apart from the sub judice rule I also argued illegality. This is because the charges to be investigated by this tribunal include matters that are covered by immunity for the prosecution authority and its officers.
I took out an action for Judicial Review. The Judge granted leave to commence Judicial Review. This order also stayed my suspension and any other acts that may have been taken to effect my suspension.
This order angered the ruling party. The chief executive of the Party issued a scathing attack on the Judge and to some extent on me. He went so far as to suggest that Judges who had previously behaved the way the one dealing with my matter had, were compelled to flee the country in fear of party supremacy. He issued veiled and explicit threats against the Judge.
It is therefore not surprising that today Friday 13 March the Judge who had given a March 23 inter parte hearing date for the matter decided to vacate his own order without hearing from my side. It would appear the intimidation played a significant part!
I am ready for the tribunal but the composition is a troublesome matter. The president has selected three former chief justices. On the surface it appears like an honourabe and formidable bench of retired judicial officers. The truth howver is more complicated.
To illustrate the problem of this tribunal I need to give some background. Please indulge me a little.
Those of you who have heard me talk about how I became a prosecutor specialising in grand corruption cases will recall that I started out as a defence lawyer in a very strange case in 2001. This is a case that is called the ‘Chiluba is a thief Case’ in Zambia.
From 1991 to 2001 Dr Fredrick Chiluba was our President. When his time to leave office after having served his two term limit came, president Chiluba tried to amend the constitution to allow himself to stay further and contest for a third term. There was general civil society resistance to this. Although I was a commercial lawyer I offered my time to civil society in their effort to stop the mutilation of our constitution. I soon found myself a lot busier than I had bargained.
In the heat of the activism that characterised the anti-third term campaign as it came to be known two members of parliament, one being a cabinet minster denounced the then head of state Dr Chiluba calling him a thief. President Chiluba was so incensed by this attack that he ordered the arrest of the members of parliament and the journalist who wrote the story and his editor. I took a pro bono brief to defend this case. I set out to prove that President Chiluba was a thief.
During this period an alleged intelligence account that was used to launder stolen Zambian government funds was brought to my attention by a whistle blower. I applied to a court to gain access to this so called intelligence account that was held in a London branch of a Zambian Bank. Once exposed, this account proved that Chiluba was a thief. My clients were acquitted. It is this account that partly explains what is wrong with this tribunal.
After the acquittal of my clients something else happened. From being a defence lawyer in a criminal defamation case, I was hired to prosecute by the state and went on to prosecute a lot of very important people including President Chiluba out of the evidence that this account yielded.
One of the first casualties of that anti-corruption fight was the then Chief Justice Mr Mathew Ngulube. He is a brilliant lawyer but he was receiving illicit payments from the then President out of the slash fund of stolen government money that President Chiluba kept in the London account. I had to go and see the Chief Justice to tell him what the statements of account we had received showed before it became public. He dismissed me claiming there was nothing to it. I soon got an unexpected call from the then President who was also lawyer the late Mr Levi Mwanawasa SC.. He wished to know what I could do to ‘assist’ the Chief Justice. I said there was nothing I could do. Since the Chief Justice had asked the President to protect him, he sent me back to Justice Ngulube to tell him there is nothing the president could do. The Chief Justice was forced to resign due to public protest after the president attempted to retire him with full benefits. Justice Ngulube blames me for his loss of his position as Chief Justice and is known to have said as much to a number of people!
This former Chief Justice who resigned in disgrace is now one of the three former Chief Justices that the president has appointed to probe me!
The second retired chief Justice that the president has appointed to the tribunal is retired Justice Ernest Sakala. Justice Sakala is mentioned in connection with an alleged plot to fix me in connection with an airline company that I had an interest in that collapsed during the 2008 oil crisis. His conduct in this matter is questionable. Some of the activities involving this Chief Justice and two other Judges is well documented and was subject of a public scandal. At the very least he is accused of trying to shield two judges that are thought to have conspired to pervert the course of justice at my expense.
This is my ‘court’, can I expect Justice!! Judges are being intimidated publicly and judges with possible axes to grind form my tribunal, what can I say!
I remain determined to see this to the end!