THE antics of Director of Public Prosecutions (DPP) Mutembo Nchito in the Lusaka magistrate’s court last Friday need explaining because left to ordinary interpretation will set a bad precedent among constitutional and public office holders when they are faced with similar challenges.
Last Friday, Mr Nchito entered a nolle prosequi in respect of himself in a case in which he is facing allegations of abuse of office which included forging a court judgment and obtaining a bank loan by fraudulent misrepresentation.
In his action, Mr Nchito drew his powers from the Criminal Procedure Code (CPC) under Chapter 88 which states; “In any trial before a subordinate court, any public prosecutor may, with the consent of the court or on the instructions of the Director of Public Prosecutions, at any time before judgment is pronounced, withdraw from the prosecution of any person; and upon such withdrawal-
(a) If it is made before the accused person is called upon to make his defence, he shall be discharged, but such discharge of an accused person shall not operate as a bar to subsequent proceedings against him on account of the same facts;
(b) If it is made after the accused person is called upon to make his defence, he shall be acquitted.
Mr Nchito abused this power as DPP and freed himself in total disregard of conflict of interest.
Mr Nchito on Friday was in court not as a prosecutor or a witness but an accused person and that is why he was forced to stand in the accused dock.
He therefore could not use the powers of the office of the DPP to acquit himself even before he had taken plea.
The puzzle however is to what was Mr Nchito entering a nolle prosequi if he had not pleaded guilty or not guilty?
But Mr Nchito’s action cannot be restricted to court matters because there are so many public offices, some which are not constitutional officers but which have authorities over public incentives.
For argument sake, should we take it that the chief executive officer of the Zambia Revenue Authority can import goods countless times without being subjected to tax obligations just because he is in charge of Revenue House. If a judge-in-charge of a particular court has been sued, would it be ethically correct for him or her to allocate the case to himself, preside over, pass a judgment in his own favour and go on to admonish the complainant?
This is the part that the public may need an explanation from such bodies as the Law Association of Zambia (LAZ).
Should Zambians take it that it is no longer a crime for people to take pecuniary advantage of a situation to favour themselves or their relatives?
This is precisely what Mr Nchito did when he dispensed with his lawyers to handle his own matter where he discharged himself.
Without an explanation, Zambians may witness a DPP who will steal but because he has authority to enter a nolle the State will fail to prosecute him or her.
In the case of Mr Nchito, the petitioners are not asking too much but simple answer to the allegation of misconduct which happened before he even assumed the office of DPP.
As we have said, Mr Nchito possesses all the powers of stopping a case as DPP, but whether he can make a just decision when he is himself involved is a matter of debate.
LAZ should for once be proactive.