DIRECTOR of Public Prosecutions (DPP) Mutembo Nchito has applied in the Supreme Court to stay proceedings in the Lusaka Magistrates Court in the matter involving former president Rupiah Banda and Fred M’membe and Post Newspapers.
Mr Nchito had taken over the case so that he could prosecute Mr M’membe on behalf of the people.
On Monday, Lusaka High Court judge Chalwe Mchenga quashed Mr Nchito’s takeover of the prosecution of the case and referred the matter back to Lusaka Magistrates Court for commencement of trial.
Judge Mchenga said the takeover of case whether Mr Nchito wanted to continue with it or not could not be in the public interest because Mr M’membe and Mr Nchito were business partners.
Mr Justice Mchenga ruled that allowing the DPP to prosecute the case, 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 Prosecution’s decision to take over the prosecution in that matter is in public interest.
“Having regards the circumstances of this case, it cannot be in the public interest for him to take over the prosecution of his business partner whether for purpose of carrying on with it or stop it,” he said.
Mr Justice Mchenga said Mr Banda was likely not to have a fair trial as it was inconceivable that Mr Mchito has been objecting to deal with the complaint against Mr M’membe.
But Mr Nchito was dissatisfied with the High Court ruling and has filed in a notice of intention to appeal to the Supreme Court. This was done on Tuesday.
This is according to an ex-parte affidavit in support of summons to stay the proceedings of the subordinate court pending determination of the appeal signed by National Prosecution Authority State advocate Chali Hambayi yesterday.
Mr Nchito said fundamental constitutional questions have arisen, which question the exercise of the powers and functions of the DPP which the Supreme Court must address.
“In view of the serious constitutional matters raised, the proceedings in the subordinate court should be stayed. If the proceedings in the subordinate court are not stayed, they may render this appeal an academic exercise,” he said.
In his appeal to the Supreme Court filed in the criminal registry, Mr Nchito raised two grounds of appeal.
On ground one, Mr Nchito states that the learned judge erred in law when he extended the application of Article 18 of the Constitution to the complainant when it specially applies to the rights of an accused person.
On ground two, Mr Nchito submits that the learned judge erred in law when he held that under Article 56 of the Constitution the Director of Public Prosecutions needed to show that the takeover of a matter should be in the public interest, when the Constitution does not state so.