Director of Public Prosecutions (DPP) Mutembo Nchito has been stopped from continuing to prosecute former president Rupiah Banda because he (Nchito) is conflicted and that there is a risk that the former head of state will not receive a fair trial.
The Lusaka Magistrate Court has found merit in the constitutional issues president Banda raised against Mr Nhito to prosecute him and has since refered the matter to the High Court for constitutional determination.
Magistrate Obbister Musukwa in his ruling yesterday said that president Banda had raised constitutional issues over his prosecutions and that it was clear that Nchito was a conflicted man who could not continue prosecuting the former head of state.
Magistrate Musukwa said there was a conflict between the rights of president Banda to a fair trial as guaranteed in the constitution under the Bill of Rights on one hand and the powers of the DPP to prosecute the matter when he had personal interst in the cases.
Magistrate Musukwa said he was refering the matter to the High Court because the issues president Banda had raised against Mr Nchito were constiotutional and could only be determined by a superior court.
He ruled that he was alive to the fact that the Magistratre court did not have the jurisdiction whatsoever to interpret constitutional issues because such authority was only vested into the High Court.
Magistrate Musukwa stated that since the Magistrate Court did not have the power to determine the constitutionality of the confliting issues, he had no choice but to refer the matter to the High Court for Determination.
He wondered where one would draw the line between president Banda who was thr accused to a fair trial and hearing as envisaged by Article 18(1) and (2) of the Bill of Rights of the Constitution and the power of the DPP to prosecute the former head of state when it was clear that such ann action was in total conflict with fair trial.
“On the face of ot from the submissions of the parties and affidavit before the court, there appears a conflict between the rights of accused for fair trial as guaranteed in the Bill of Rights of the Constitution on one side and the powers of the Director of Public Prosecution to prosecute this matter in line with the provision of Article 56 on the other. I am alive to the fact that these are constitutional issues and this court has not jurisdiction whatsoever to interpret constitutional issues as that power is vested in the High Court. Since this court has nom power to determine constitutionality of two conflicting issues, I refer the matter to the High Court to determine,” Magistrate Musukwa ruled.
Former President Banda has rejected that Mr Nchito should continue prosecuting him because he (president Banda) would never receive fair hearing and trial as the DPP was not only highly conflicted but had exhibited glaring traits of hatred and partiality in the cases.
President Banda said he was strongly objecting to be prosecuted by Mr Nchito because the DPP has remained deeply conflicted in his actions. President Banda argued that Mr Nchito who is a business partner to Post Newspaper owner Fred M’membe could not be a judge in his own case and should therefore recuse himself as a matter of public policy.