EMBATTLED Director of Public Prosecutions (DPP) Mutembo Nchito is amenable for prosecution by the courts of law if he conducted himself in a manner that abused his authority because his powers as DPP were not absolute, Lusaka lawyer Kelvin Bwalya Fube has observed.
Mr Nchito has been claiming that he was not amenable to the jurisdiction of the courts of law because as DPP, he had immunity from prosecution and that no law could question the decisions he made in discharging the functions of the office of the DPP.
But Mr Fube said according to Article 139 (10) of the Constitution, Mr Nchito could be prosecuted if in the exercise of his discretionary powers was not within the limit of the law.
There has been some public suggestions that Mr Nchito should be made to account for some of his transgressions in the courts of law while he is still appearing before the tribunal because some of the allegations he was facing bordered on criminality.
Mr Fube told the Daily Nation yesterday that other factors that could invoke the authority of Article 139 (10) and cause the prosecution of the DPP were public policy, national security and the moral standing at the effective time.
He stated that Mr Nchito as a constitutional office holder, any decision that he was expected to make should always take into account factors such as national security, public policy and what the community would accept and that if these factors were not taken into account, the DPP could be taken to court and prosecuted.
Mr Fube said if there was a general uprising that the DPP could have been impaired by corruption, fraud and other conterminous factors including tribalism and nepotism, citizens had the right to demand the prosecution of such a DPP. He said if it were true that some of Mr Nchito’s decisions made while performing the functions of the DPP were made on the basis of his association with some people, he could be arrested and prosecuted.
Article 139 (10) of the Constitution states: 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 functions 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.
“The DPP under Article 139 (10) can be prosecuted if in his discharge of his function, his digression is not within the limit of the law and taking into account public policy, national security and his moral standing at the time.
As a constitutional office holder, his decisions must not be seen to be impaired by corruption, tribalism and nepotism and if in the general public’s belief that his judgment was not in the interest of the nation, he can be prosecuted because there is no absolute digressional powers by any Constitutional office holder,” Mr Fube said.
Mr Fube said the Annel Silungwe Tribunal currently investigating Mr Nchito was established in conformity with the law and that it was not up to Mr Nchito to judge the members of the tribunal on how they were going to preside over his matter.
He advised that the tribunal was not a simple matter and that President Lungu had applied his full mind by appointing three former Chief Justices to preside over the matter.
He said unlike tribunals that were established in the past, the Annel Silingwe one was about the best, comprising three former Chief Justices and that President Lungu would have no choice but to accept their recommendation.
Mr Fube said the tribunal was not set up to find Mr Nchito guilty but to investigate his alleged misbehaviour and incompetence and that the DPP had the opportunity to be heard instead of being dragged to the courts of law.
“The tribunal is investigating if Mr Nchito’s decisions were in conformity with the law.
The tribunal will not judge Mr Nchito but will make recommendations on its findings. If he will be found innocent, the President will have to recall his DPP but let him (Nchito) know that it is not a simple tribunal where he can choose to scandalize individual members. President Lungu has taken this matter very seriously and that is why he has called on three former Chief Justices,” Mr Fube said.