THE submission, published in the media by the so-called State Counsel Mutembo Nchito, is a pathetic narrative lacking in merit, logic and totally bereft of legal argumentation. It is our hope that the tribunal will not waste time on it if ever it is presented.
Firstly, Mutembo has a complete misapprehension of the procedure. The tribunal is not a court of law. It is an administrative investigative body. Therefore most of his submissions and legal citations are totally useless and irrelevant.
A tribunal is not an adjudicative body with final determination. The President as the appointing authority will make the final determination.
It is incredible that a State counsel can argue that a tribunal set up by the President, his appointing authority, has no authority over him because of the “alleged” constitutional authority he enjoys.
The DPP is a creature of statute just as the President is and both are accountable to the law, neither of them is beyond the law. It is therefore rubbish to suggest that the tribunal cannot investigate his issuance of nolle prosequi because the Constitution reposes this exclusive authority on the DPP.
This is a failure to understand the principle of accountability and perhaps this explains his abuse of the law.
Abuse of authority is the improper use of authority by an authority who holds public office.
There is no law in Zambia or indeed anywhere else in the world where public officers are given carte blanche authority to act outside the remit of the law. Not even the President who enjoys immunity is exempt. Immunity will be removed if he abuses authority.
Mutembo who has the dubious record of prosecuting former presidents must understand this fact.
In this case President Lungu is within his powers to appoint a tribunal to investigate and establish whether Mutembo Nchito used his power correctly as envisaged by law.
A fundamental principle of the rule of natural justice states that no one should be a judge in his own cause, in Latin, “Nemo judex in causa sua”.
Mutembo Nchito gave himself a nolle prosequi, a breach of the above principle. There is no debate about this.
As DPP he was expected to exhibit more faith in the system and the principle of innocence until proved guilty, than to truncate the process. Obviously he had no such faith.
Article 56(2) of the Constitution gives power to the DPP to institute or stop proceedings against any individual.
It does not say whether the DPP can institute proceedings against himself, or indeed stop proceedings, against himself because such an eventuality would be tantamount to a legal tautology. The law does not envisage the disingenuous absurdity he is trying to create.
That he had power to enter nolle prosequi is not at issue in this tribunal. The question is whether he was corrupt in the use of his authority and for this he is accountable to his appointing authority who has appointed a team of senior judges to make a recommendation.
His two other points, namely, holding the tribunal in camera and his objection to the constitution of the tribunal are totally baseless and without foundation because there is precedence. He was a witness and gave evidence to the Mukelabai Mukelabai tribunal which he and Fred M’membe originated this was in camera.
As regards the competence of the three judges, the less said the better, because these are eminent people who have proven track records.
They are not in the class of Mutembo and M’membe.
With regards to the principle of “audi alteram partem”, this is exactly what the tribunal has decided, namely to enable Government give Mutembo charges to which he can respond.
Let him respond and stop the ridiculous charade of objections.