Former President Rupiah Banda has rejected the intervention of the Director of Public Prosecutions (DPP) Mutembo Nchito in the prosecution of his business partner and friend Fred M’membe, describing the attempt as a total abuse of his constitutional power as DPP.
Responding to instructions by the Lusaka Magistrate Mwaka Mikalile to review the case with the DPP, Mr. Banda said that the decision by Mr. Nchito to prosecute his partner and friend Fred M’membe was abuse of constitutional power.
The intervention he has complained, would be, mala fides amounting to an abuse of the DPP’s constitutional power.
“You never consulted with the complainant or his advocates as to what your interest, public or otherwise, is and would be in the matter or requested to see the indictment before you made the decision to take over. You never saw it fit on your own accord to commence proceedings against the alleged contemnors but have since taken peculiar interest in this matter after the complainant, in seeking to protect his right to a fair trial, instituted contempt proceedings,” said Mr. Zulu.
He said that despite being aware of Mr. Banda’s discomfort with your involvement in the cases in which you have refused to declare interest, you have however, found it prudent to take over the cases against your known ally Mr. M’membe.
“Your exercise of power is unconstitutional as it, inter alia, infringes on the complainant’s right to a fair trial. Without doubt, your perceived bias is inescapable and is likely to render the proceedings a sham, mistrial and consequently a travesty of justice,” a letter written by former President Banda’s lawyers Makebi Zulu and Associate said.
According to a letter which was copied to President Michael Sata, the Attorney General, the Law Association of Zambia, PNP Advocates and Keith Mweemba Advocates Mr. Nchito’s involvement in the prosecution of his close friend, partner and ally Mr. M’membe was an abuse of power and unconstitutional.
Makebi Zulu and Associates stated that Mr. Nchito’s action would render the proceedings a sham, mistrial and consequently a travesty of justice.
Mr. Zulu has since asked Mr. Nchito to consider withdrawing from the matter and let the complainant former President Banda to proceed his original course of privately prosecuting Mr. M’membe.
Raising the concerns in the manner Mr. Nchito conducted himself by applying to prosecute the matter, Mr. Zulu said that, “We have been retained and act for H.E Rupiah Bwezani Banda who wishes to raise concerns over your action. On the 8th of May, 2014, your office did take over the proceedings relating to the prosecution of Mr. Fred M’membe and the Post Newspaper for contempt of court and further applied for an adjournment so as to review the case and meet with the complainant. The complainant, either by himself or his lawyers, did not inform you of these proceedings but can only speculate that you may have been informed by the accused, Mr. M’membe of his advocates,” said Mr. Zulu.
He said that the former President Mr. Banda has raised concerns that he Mr. Nchito was a potential witness and therefore could not prosecute the matter.
“Our client wishes to raise the following concerns, you are a potential witness in this matter as you have conduct of the matters in which the contemptuous articles allegedly relate to. You are a known business partner to the accused (Mr. Fred M’membe). The accused is represented by Nchito and Nchito Advocates, a firm in which you are a consultant,” said Mr. Zulu.
He also stated that while Mr. Nchito was in private practice, Mr. M’membe was his client, adding that Mr. M’membe had been under his tutelage at Mr. Nchito’s law firm.
Mr. Zulu also said that Mr. Nchito was a lead prosecutor against Mr. Banda in two cases which relates to the contemptuous articles in question.
“In view of the reason we have started, Mr. Banda is of the following considered views that you intend to protect your known ally and that your intention is to avoid being subpoenaed to testify against your known ally. Your action is against public policy and thus unconstitutional,” said Mr. Zulu.