MANY people are beginning to wonder why Mutembo Nchito is still Director of Public Prosecutions.
Apart from the historical offences he has been charged with, anywhere else in the world Mutembo Nchito could have been cited with the offence of self dealing, by creating a situation of conflict of interest in which an official who controls an organization causes it to enter into a transaction with the official, or with another organization that benefits the official.”
By entering a nolle prosequi for himself and now seeking a stay of cases concerning his business partner Fred M’membe, Mutembo is showing a wanton disregard of the rule of conflict of interest which governs public policy.
The avoidance of conflict of interest in public policy domains is critical for good governance and maintaining trust in public institutions.
The measure of conflict does not lie with an actual conflict but even with perceived one. According to the United Kingdom Office of Management “An apparent conflict-of-interest situation can be as seriously damaging to the public’s confidence in a public official, or the official’s agency, as an actual conflict. An apparent conflict of interest should therefore be treated as though it were an actual conflict, until such time as the doubt is removed and the matter is determined, after investigation of all the relevant facts.”
The guide further states that such an investigation..”.. may in turn lead to a conclusion that the officials’ actions also constituted actual corruption”.
That Mutembo Nchito, the Director of Public Prosecutions is deeply conflicted is a self evident matter. He cannot therefore be allowed to hold office where he makes decisions that concern him personally and personal business partners.
Article 57 of the Constitution allows the President to remove the DPP and appoint another person to act in position investigations to take place.
Public office carries with it the demand for transparency and accountability.
Public officers are expected to use powers and resources for the public good. They should be prepared to be accountable for the decisions they make, and justify their official decisions and actions to a relevant authority. They are also expected to display the highest level of integrity by making decisions and acting without consideration of their private interests because the improper use of a public service position for private advantage is regarded as a serious breach of professional integrity.
It is neither fair nor justified to leave Nchito in a position where he must make decisions concerning his own fate. Nobody should be put in this position.
Many jurisdictions in the world have very clear statutes and laws prohibiting public officers from acting in situations where a conflict of interest arises. The general principle being that public employees are prohibited from personally benefitting at the expense of the public interest.
The logic being that it is a violation of public trust for public employees to benefit personally from their public positions.
That is why public policy norms demand that “no public employee shall make, participate in making or in any way attempt to use his official position to influence a governmental decision in which he knows or has reason to know he has a financial interest.” Under these jurisdictions “any person who willfully violates the general prohibition is guilty of a misdemeanor and is liable to imprisonment and fine.
The definition of public interest extends beyond the public employee’s own personal concerns or finances to include other people’s interests if it is reasonably foreseeable that the decision will benefit the officer, a member of his or her immediate family, or any other person with whom the officer associates. It is the practice that where a conflict of interest exists, the officer must publicly announce the interest and automatically disqualify himself or herself from any involvement in the decision making process.
These laws go further to suggest that even where this criteria is not met, the mere appearance of conflict should preclude the officer from the process.
This is indeed true of our own Cabinet where ministers with an interest in a matter, be it pecuniary or othrwise, held by themselves or members of their immediate families must declare such interest and recues themselves.