Hon Newton Ng’uni should not appeal to the High Court. He has made his point.
Substantive character issues concerning DPP Mutembo Nchito have been raised. Time has come for the responsible authorities to address the matter which is now in the public domain. It is a matter of urgency that this is done if the integrity, credibility and proper functioning of our criminal justice system is to be assured.
Firstly: High Court Judge Chalwe Mchenga has made a principled ruling barring Mutembo Nchito from taking over and prosecuting his business partner Fred M’membe on account of “integrity” concerns. In other words there was everything improper about the decision.
The question now is whether or not it was proper for Mutembo to enter a nolle in his own matter. The technical aspect has been answered by Magistrate Lameck Mwale. The propriety, ethical and moral call must be made by higher authorities.
Secondly: What is clear and evident is that criminal contention miring the office of the Director of Public Prosecutions constitutes a severe blot on the system. Ordinarily Mutembo Nchito should have resigned or stepped aside to allow the due process of law take its course. Truncating the process undermines the legitimacy of the office as it leaves the suspicion that the allegations are true.
This would confirm that our DPP has no integrity to serve in the position.
We have very clear examples in Kenya and South Africa where higher courts ruled against the appointment of individuals whose integrity was questioned.
The Kenyan High Court blocked the appointment of Mumo Matemu as the chairman of the Ethics and Anti-Corruption Commission (EACC) because, according to Judge Mathew Emukule, there were serious allegations raised against him.
The unresolved financial, moral and performance issues surrounding Mutembo Nchito cannot be ignored, indeed they cannot be left to the efforts of private individuals who may not control the resources, information and indeed investigative capacity to reach the truth.
The mere fact that issues have been raised merits an investigation. This is only possible if the appropriate mechanism is employed. Ordinarily allegations against an ordinary citizen are resolved by criminal action in courts of law.
In this case the accused person has used the law to prevent the process. This surely cannot be the end.
It is very sad that the president of the Law Association of Zambia sees no connection between morality and the law. This is a cynical interpretation of the law that has made the association irrelevant to the struggle against corruption and abuse of authority.
The principle of the morality of duty and the morality of aspiration cannot be separated; it is pedantic to cite and weigh the mechanics of law against the purpose for which the law was established. An office holder must always act in good faith with prudence, discernment and without personal interest .
The position LAZ has taken lacks ethical insight, and sadly it is this lack of insight that has given us two contradictory court rulings in respect of the DPP.
Magistrate Lameck Mwale, who has no constitutional “discretion,” has cited the law in upholding the nolle prosequi and therefore for discontinuing the case against Nchito, but High Court Judge Chalwe Mchenga who has such discretion has gone to the spirit of the law to stop Nchito from taking over a private prosecution against his colleague and business partner Fred M’membe, the owner of the Post newspaper.
Indeed the law says that the DPP enjoys absolute discretion in determining the prosecution of criminal cases. But is this discretion absolute?
Far from it. Making it absolute would create absurdities as the case is now. Even medical practitioners are advised against diagnosing their own ailment because professional integrity demands a modicum of accountability which in turn creates credibility.
Credibility is very important. LAZ has lost this credibility because it is conducting itself as a union rather than a professional body that should uphold professional standards.
Article 52(b) of the Legal Practitioners’ Code clearly states that no practitioner shall “mislead or allow any court to be misled, so that such court makes an order which such practitioner knows to be wrong or improper”.
Supreme Court Judge Gregory Phiri has faulted Mutembo on this account. There is a ruling on record which has been published repeatedly in the media showing dishonorable and unprofessional conduct which should have guided the association in their relationship with Mutembo Nchito.
On this account alone, and coming from a senior member of the judiciary, LAZ should have treated the matter with some circumspection rather than justify misconduct.