Director of Public Prosecutions (DPP) Mutembo Nchito yesterday blew his top and took umbrage when lawyers representing former president Rupiah Banda accused him of being biased with an interest to serve against the former head of state.
Mr Nchito who struggled to defend his position to continue prosecuting President Banda was faced with a serious legal battle led by Professor Patrick Mvunga, Sakwiba Sikota, Makebi Zulu, Lisimba Linyama and Irene Kunda to allay the fears by president Banda that he would not have a fair trial and hearing.
Mr Nchito tempers rose when he was told that although he had the constitutional prosecuting authority, the powers could be taken away from him if he exhibited any semblance or perceived impartiality and biasness in his prosecution.
Mr Nchito who repeatedly interjected in the submissions of the defence was told by president Banda’s lawyers that if the exercise of his constitutional powers defied and breached the constitutional rights of the accused to a fair trial and hearing, his mandate to prosecute such a case would be deemed unlawful.
This is in a case where president Banda has protested that Mr Nchito should not continue prosecuting him as his action amounted to abuse of the judicial system because he had exhibited signs of grand impartiality after continuing to conduct investigations in a matter he was personally prosecuting.
When seeking ratification by the Parliamentary Select Committee that considered his appointment as DPP, Mr Nchito declared that he would not prosecute president Banda because he was personally conflicted.
He is now the lead prosecutor in all president Banda’s corruption cases.
Mr Nchito had to be restrained by Magistrate Obister Musukwa when he decided to ignore court decorum and started shouting at lawyer Sakwiba Sikota demanding that he withdraw the assertions that he was in fact the accused in president Banda’s case.
Mr Nchito was incensed that Mr Sikota imputed that he (Nchito) could not continue insisting prosecuting president Banda because it was clear that he would not be fair and impartial in his prosecution because of the perceived vendetta he had against the former president.
“Is the learned counsel imputing that I as the DPP am now the accused in this matter? Now, that is being disrespectful, and let us have respect each other here,” Mr Nchito said after Mr Sikota said it was understandable for the accused to get angry, be emotional and express hatred against those who have accused him.
Magistrate Musukwa was forced to adjourn the matter to the chambers for 30 minutes after which it was decded that the case be adjourned to May 30th 2014 for ruling.
President Banda has raised constitutional issues in his application to have Mr Nchito removed from the prosecution team and that issues that had been raised invited unavoidable constitutional matters that could only be addressed by the High Court.President Banda argued that the court had a constitutional duty not only to administer justice but it had to be seen to guarantee all procedural and protection to all citizens.
The former president told the court that Mr Nchito had exhibited a lot of animosity against him and that there was a likely danger that he would not be able to receive fair trial under the DPP who was also a business partner of Fred M’membe who had been using his newspaper to write slanderous and malicious editorials with intent to influence the outcome of the courts in his cases.
‘I have been attacked by Mr M’membe and the Post Newspaper while trial is going on and Mr Nchito and Mr M’member are business partners. For fair trial, the matter should be referred to the High Court. Where any person is arraigned before any court, it is the legitimate expectation of the accused that he shall have a fair trial. This court has no jurisdiction to interpret constitutional matters that have been raised and the only way to resolve this is to refer the matter to the High Court,” president Banda argued.But Mr Nchito in defending his position told the court that he was the only country’s DPP and that if he was not going to prosecute president Banda, there would be no one else do so.His argument was tersely challenged by Makebi Zulu, one of the lawyers representing president Banda that while he was in private practice, he privately prosecuted president Frederick Chiluba and that it would only be fair that he should allow president Banda prosecute Mr M’membe in a private matter. President Banda has accused Mr Nchito together with his business partners, Fred M’membe who is the Post Newspaper owner of having a vendetta against him as a person when in fact they were wholly to blame for having exposed the Zambian Airways to financial debts from various institutions including Finance Bank Zambia Limited and did not use the money in accordance with the business plan they gave.