EMBATLED Director of Public Prosecutions (DPP) Mutembo Nchito has decided to continue prosecuting his perceived arch enemy, Daily Nation proprietor Richard Sakala on a matter on which he has entered a nolle prosequi in respect of United Party for National Development (UPND) leader Hakainde Hichilema.
Yesterday, the National Prosecution Authority in a statement said that following Lusaka High Court Judge in-charge Isaac Chali ruling that Section 67 of the Penal Code lacked consistency with the Constitution and that the law was invalid, it had become necessary to discontinue the proceedings against Mr Hichilema.
Mr Nchito however said after consultation, Attorney General Abraham Mwansa had directed that the ruling of the High Court in which Section 67 was declared invalid and expunged from the statutes in the case of Mr Richard Sakala, MacDonald Chipenzi and Simon Mwanza should be appealed.
Asked to comment, Mr Sakala emphasized that the fight against the cartel was not for the fainthearted…“Why is this matter coming up now when Mutembo Nchito has committed one of the worst breaches of trust by giving himself a nolle prosequi? He wants all of us to go to court except himself. This is a serious case of abuse of authority of office. If the State wins in the Supreme Court, we will be back for prosecution and imprisonment while Mr Hichilema will not be prosecuted on account of the nolle prosequi.”
“Following the decision of the High Court, in the case of MacDonald Chipenzi, Richard Sakala and Simon Mwanza versus the People, to strike down Section 67 for its lack of consistency with the Constitution and the declaration that a prosecution based on Section 67 of the Penal Code is itself inconsistent with the constitutional guarantee and equally invalid, it has become necessary to discontinue proceedings against Mr Hichilema.
A nolle prosequi pursuant to Section 81 (1) of the Criminal Procedure Code Chapter 87 of the laws of Zambia has therefore been filed into court to discontinue the proceedings,” Mr Nchito said.
Mr Nchito in his statement said: “Further, as the declaration of the law constitutes a matter of public policy, the Director of Public Prosecutions sought guidance of the Attorney General pursuant to the proviso to Article 56 (7) of the Constitution of Zambia Chapter 1.
The Acting Attorney General Abraham Mwansa has directed pursuant to Article 56 (7) of the Constitution, that the ruling of the High Court in the case of MacDonald Chipenzi, Richard Sakala and Simon Mwanza be appealed against.”
Mr Hichilema, Mr Sakala, Mr Chipenzi and Mr Mwanza were all arrested and charged under Section 67 which criminalized publication of false statements with intent to cause fear and alarm.
According to a statement concerning the issuance of a nolle prosequi in the case of the People v Hakainde Hichilema, Mr Nchito discontinued the case involving the UPND leader by his discretion pursuant to the powers vested in him by section 8(1) of the Criminal Procedure Code Chapter 88 of the Laws of Zambia.
Mr Hichilema was arrested under section 67 of the Constitution and was charged with causing publication of false information with intent to cause fear and alarm.
Lusaka High Court Judge-in-Charge last year ruled that Section 67 of the Penal Code of the Laws of Zambia was unconstitutional and illegal as it was created to suppress the freedoms of citizens.
Judge Chali said Section 67 contravened Article 20 of the Constitution and was null and void because the law was intended to forestall a danger, which was both remote and uncertain.
“I find and hold that Section 67 does not fit under Article 20 (3) of the Constitution, it goes beyond what is permissible under that clause, I therefore find that section 67 does not pass the test of being reasonably justifiable in a democratic society,” Judge Chali said at the time.
But yesterday, Mr Nchito entered a nolle prosequi in respect of Mr Hichilema but refused to do the same to Mr Sakala, Mr Chipenzi and Mr Mwanza’s case who were arrested and charged under the same law that has since been expunged from the country’s statutes.
In June 2012, Mr Hichilema was arrested for exposing a scheme in which he said the Patriotic Front (PF) had made an arrangement with the militia in Sudan to train Zambian youths, a statement the State claimed was likely to cause fear and alarm to the public.
In December 2013, Mr Sakala and Mr Mwanza were arrested by the police and detained in connection with the story in which FODEP executive director MacDonald Chipenzi advised the Zambia Police to be open and transparent in their recruitment exercise to avoid the widely held suspicion that there was a scheme to infuse militia in the service.
Mr Sakala was arrested a day after the police picked up Mr Chipenzi and detained him for issuing a statement in connection with the recruitment of new police officers, an exercise that came under extreme criticism because of the secrecy surrounding the exercise that over the years had been a public undertaking.
The police jointly charged Mr Sakala, Mr Mwanza and Mr Chipenzi with publication of false information with intent to cause public alarm and the trio were denied bond and were detained at Lusaka Central Police Station.