FOR the State Counsel, he claims to be, Mutembo Nchito displays exceptionally shocking ignorance of the law as he cannot distinguish the difference between a tribunal and a court on one hand and between an investigation and a prosecution on the other hand.
Further to suggest, as he does, that as Director of Public Prosecutions (DPP), he was inscrutable and above the law, with carte blanche authority to do as he pleased, displays arrogance and self importance that explains his current predicament.
This arrogance is further displayed by statements such as the one in his Preliminary Witness Statement No. 7 which states, “ …. Not even the appointing authority can change the terms of reference once the Tribunal has been sworn in. There is no constitutional procedure that allows these kinds of amendments.”
Nobody and absolutely nobody is above the law and accountability. Not even the DPP is above the law. This territory comes with public office.
Article 139(10) states very clearly that, “provisions of this constitution that any person or authority shall not be subject to the direction or control of any other person or authority in the exercise of any function under this constitution, shall not be construed as precluding a court of law from exercising jurisdiction in relation to any question whether that person or authority has performed those functions in accordance with this constitution or any other law.”
When time comes, Mutembo Nchito must stand in the dock in a court of law and justify why he gave a nolle to a man he owed US$4.2 million. He will be required to explain the public policy imperative that forced him to seek the opinion of the Attorney General.
Nobody is asking whether or not he had the authority. The question before the court of law will be determined by the relationship between the nolle prosequi and the eventual consent order which wrote off, or seemingly expunged, the debt owed by him and his business partner Fred M’membe. There must be an explanation for the $4.2 million write-off, which a court of law will want to hear.
It is not the duty of the investigative tribunal to prove guilt or innocence.
Obviously it is impossible to prosecute the DPP while he is in office, hence the need for the investigation and if recommended his removal to pave way for the court process.
It is only after he has been removed that criminal charges related to his work will be considered and Mutembo must be assured that there will be many such charges including from those he has wronged, persecuted and treated with callous cruelty and disregard.
The tribunal is not the forum for criminal charges or indeed justification of conduct. It is simply an investigative body that must report to the high authority.
To suggest as he does that constitutionally and by legal precedence he should not be explaining why he entered nolle prosequi in relation to any person or authority is a display of uneducated ignorance. Add to this the sentiment that he does not feel answerable to the tribunal is the height of arrogance that should not be allowed in our justice system, where legally constituted bodies must be allowed to perform their function without let or hindrance.
Although the State has indicated that it is not averse to a public hearing our own view is that the conduct and display of Mutembo Nchito and his business partner Fred M’membe of the Post newspaper will continue to scandalize the tribunal with the hope of undermining whatever the outcome will be.
We would rather the open hearing were left to the adjudicative body, namely the court, where evidence for and against will be adduced.