THE unsolicited disclosure that Mutembo Nchito issued a nolle prosequi to Dr. Rajan Mahtani, the owner of Finance Bank on instructions from then Attorney General Mumba Malila, begs the question and fortifies our recommendation that the Silungwe Tribunal should be held in camera.
There is a very real danger that an open hearing will intentionally wreak considerable damage to innocent people, some mentioned in bad faith. This singular revelation of a constitutional illegality seemingly committed by a Supreme Court judge in the person of Justice Mumba Malila shows the level to which Mutembo will go. He is determined to bring down as many people as possible.
First of all the revelation carried in the Post Newspaper was completely out of turn, because there was no public hearing at which the submission was made. The intention of the publication was to implicate Justice Malila while exonerating Fred M’membe and Mutembo Nchito.
The public has been made to understand that instructions for the nolle emanated from Justice Malila, contrary to the law which states that the DPP will be independent from external control. Justice Malila is being made responsible for and complicit to a corrupt transaction.
That he, Mutembo Nchito, executed a corrupt and illegal nolle is no longer of consequence.
Both Mutembo Nchito and Fred M’membe, in their traditional modus operandi, know that it is most unlikely that Justice Malila will respond to the exposure because there is no forum for him to answer a media publication outside the tribunal.
There is no doubt that an opinion in this regard made by Justice Malila does exist and circumstances permitting Fred will be able to reproduce it.
What were the circumstances under which the opinion was proffered? There are only two possibilities:
Article 56(7) of the Constitution allows the DPP to bring to the attention of the Attorney General any case in which a matter involving “.. general consideration of public policy… and shall in the exercise of his powers in relation to that case, act in accordance with any directions of the Attorney General”
We therefore assume that Mutembo prepared a memorandum justifying the nolle which the AG agreed with. Clearly it is the DPP who must bring the matter to the Attorney General.
The suggestion in the Post newspaper that the Attorney General initiated and gave instructions to the DPP to enter a nolle is most improbable and if indeed this was the case it was illegal and unconstitutional as the DPP is not subject to direction from any authority.
Secondly, if indeed Nchito executed instructions initiated by the AG, then all the more reason why he should face the tribunal because he executed an illegality.
Lurking in the background is the hand of late President Michael Sata. There is no doubt that at some point an argument will emerge that both the DPP and AG were responding to superior instructions from the President. At this point the matter will rest because he is no longer present to defend himself.
The moral of the story is that cutting a deal with Mutembo Nchito will be very dangerous for the Government. Let the tribunal hear the matter in totality and make a determination that will be based on fact.
We know for a fact that a nolle was issued to Finance Bank chairman Rajan Mahtani. We know for a fact that Mutembo Nchito and Fred M’membe owed the bank US$4.2million. It is also a fact that Mutembo Nchito and Fred M’membe entered into a consent judgment that seemingly absolved them from the debt.
The details in between are for the tribunal to determine.