Former president Rupiah Banda has refused to meet Director of Public Prosecutions (DPP) Mutembo Nchito who has launched a legal battle to block the former head of State from privately commencing the criminal prosecution of Post Newspaper owner Fred M’membe.
Mr Banda has maintained that Mr Nchito is deeply conflicted to continue prosecuting cases involving Zambia’s fourth president.
President Banda has asked the Magistrate Court to refer the decision by Mr Nchito to take over the criminal and private prosecution of Mr M’membe to the High Court for constitutional review following the DPP’s miscued act of referring the matter to the Attorney General’s office for what he considers constitutional review.
And president Banda has said Zambia was a constitutional democracy thriving on the rule of law that did not promote the unfair doctrine of sacred cows apart from rejecting the maxim of all animals are equal but other were more equal.
He told Magistrate Mika Mikalile that allowing Mr Nchito to prosecute Mr M’membe who is his business ally and friend would be like looking for a black cat with black eyes in a dark room.
The former head of State has charged that it was highly unlikely that he would receive a fair trial and hearing because Mr Nchito and Mr M’membe were not only close business allies but documented associates who had conspired to allegedly persecute the former president using courts of laws.
In a case in which President Banda has sued Mr M’membe and the Post Newspaper for contempt of court, the former head of state told Magistrate Mikalile that it was ironical that Mr Nchito who was the lead prosecutor in his corruption cases could at the same purport to prosecute the Post Newspaper owner who was his friend and business ally.
In a terse and eloquent legal rebuttal by his lawyers, president Banda declared that he was not willing to meet and sit down with Mr Nchito with the intention of reviewing his suit against Mr M’membe because the DPP had exhibited strong traits of hatred and biasness in the manner he was prosecuting his (president Banda) cases.
President Banda has sued Mr M’membe and the Post Newspaper for contempt of court and is being represented by Sakwiba Sikota, Makebi Zulu, Keith Mweemba, Gilbert Phiri and Jonas Zimba.
The former head of State told Magistrate Mikalile that he had written to Mr Nchito to explain his discomfort over the DPP’s compromised and conflicted position on prosecuting his cases but that the response from the DPP was nothing but insults coated with insolence. “I am not willing and have no intentions to meet Mr Nchito to review the case in which I have sued his friend and business partner Fred M’membe for contempt of court. I had indicated my discomfort to the DPP in prosecuting this matter and that it is my considered view that this matter must not be prosecuted in any other way other than through private prosecution in the belief that the trial may not be fair.
It is my prayer that this court should refer this matter to the High Court and not to the office of the Attorney General,” President Banda argued.
He argued that although Mr Nchito had the power to take over the prosecution of any case, the DPP did not consult him (President Banda) or his lawyers over the decision to take over the case.
“Mr Nchito is prosecuting me in other cases and on the other hand he wants to purport to want to sit down with me for purposes of prosecuting a known business ally of his. This would be perceived as a sham prosecution. My request that this court grants me and Mr M’membe constitutional safe guards contained in the constitution by referring this matter to the High Court,” President Banda said.
He argued that the involvement of Mr Nchito in his cases was making him uncomfortable because the DPP was a well documented and un-denied friend and business ally of Mr M’membe.
He further argued that there was only one ground in the constitution upon which the DPP could refer the matter to the Attorney General and that was on matters of public policy.
“Mr Nchito is a potential witness in this matter and he stands clearly conflicted to prosecute his documented business ally and friend. Mr M’membe has been undermining and maligning the proceedings of other courts where Mr Nchito is the lead prosecutor and this court cannot be invited to preside over constitutional matters that have arisen,” president Banda said.