EMBATTLED Director of Public Prosecutions (DPP) Mutembo Nchito has lost the bid to prosecute his ally and business partner Fred M’membe in a matter in which former president Rupiah Banda has sued the Post Newspaper owner for contempt and defamation.
Lusaka High Court Judge Chalwe Mchenga ruled that Mr Nchito could not be allowed to prosecute Mr M’membe because his action, although he was the DPP, was not in public interest.
Mr Banda has dragged Mr M’membe to court on 19 charges of defamation and contempt but Mr Nchito attempted to take over the prosecution of his business partner, an action that was rejected by the former Head of State because he believed the DPP was deeply conflicted.
Mr Banda has also rejected Mr Nchito’s bid to continue prosecuting him in other cases, charging that the DPP’s desire to prosecute him was being driven by a personal vendetta against him (Banda).
But yesterday, Mr Nchito was told by Judge Mchenga that his bid to take over the prosecution of Mr M’membe was not in public interest and could therefore not go ahead despite him having such constitutional powers.
The matter has since been sent back to the Lusaka Magistrates Court for commencement of trial.
Judge Mchenga said the takeover of the case by Mr Nchito could not be in public interest because Mr M’membe and Mr Nchito were business partners.
Mr Justice Mchenga ruled that allowing Mr Nchito to prosecute Mr M’membe was likely to violate Mr Banda’s right to fair trial.
“From the evidence before me, I found no basis of coming to the conclusion that Director of Public Prosecutions’ decision to take over the prosecution in that matter is in public interest. Having regard to the circumstances of this case, it cannot be in public interest for him to take over the prosecution of his business partner whether for purposes of carrying on with it or stopping it. Consequently, I find that allowing the DPP to prosecute this case is likely to violate the complainant’s right,” Judge Mchenga ruled.
Mr Justice Mchenga said Mr Banda was unlikely to have a fair trial as it was inconceivable that Mr Nchito who had been objecting to deal with the complaint against Mr M’membe could fairly and without bias deal with the matter.
He ruled that there was no information as to what Mr Nchito wanted to do with the case following the takeover stating that only two things could happen was either to continue with the prosecution or discontinue it.
Mr Justice Mchenga said reasons for the takeover, by Mr Nchito were unknown but evidence was that Mr M’membe was the DPP’s business partner and he was being represented by a law firm in which he was partner.
Mr Justice Mchenga said the Constitution provides that the DPP could take over or discontinue criminal proceedings that have been instituted by any person and that the powers of the DPP under article 56 of the Constitution cannot be questioned.
“In the exercising of powers conferred on him by this article, the DPP shall not be subject to the direction, control by any other person,” he said.
In 2013, Mr Banda appeared before the Magistrate court on allegations of abuse of office, corrupt practices and concealing gratification contrary to the laws of Zambia.
During the period Mr Banda was appearing in the Lusaka Magistrates Court, the Post Newspapers published articles referring to the former president as being a corrupt person.
Mr Banda complained to the court about the newspaper articles and the court ruled that he was innocent until proven guilty.
Despite the court ruling, the Post continued publishing and attacking Mr Banda and 19 more defamatory articles were published.
Later Mr Banda lodged a complaint in the subordinate court and the magistrate drew a charge sheet which contained 19 counts of contempt of court.