EMBATTLED Director of Public Prosecutions (DPP) Mutembo Nchito has yet again lost his bid to prosecute his ally and business partner Fred M’membe who is now going to face private prosecutors in a case in which former president Rupiah Banda has sued the Post Newspaper owner for contempt and defamation.
The DPP’s Chambers yesterday filed an application in the Supreme Court withdrawing the appeal Mr Nchito made after his bid to prosecute his business partner and ally was thrown out by the Lusaka High Court.
But Post Newspaper owner Fred M’membe through Nchima Nchito has cross-appealed in the same matter claiming that unless he is prosecuted by Mutembo Nchito, he would not be able to get a fair trial.
The Daily Nation has been informed that the Attorney General Likando Kalaluka has written to the DPP Chambers advising the office to withdraw Mr Nchito’s application from the Supreme Court to prosecute Mr M’membe who is in court for contempt against president Banda.
It has been learnt that the Attorney General directed the DPP’s Chambers to withdraw Mr Nchito’s appeal from the Supreme Court as it was against public policy consideration.
The sources said after analyzing the appeal in the Supreme Court it was found appropriate for the DPP’s Chambers to withdraw the appeal against the High Court ruling.
They said the intervention by the Attorney General to direct the DPP to withdraw the appeal meant that the action had been abandoned and has fallen off.
“The withdrawal of the appeal means that the matter will have to continue in the Magistrates Court under private prosecutors,” the sources said.
And speaking in an interview after the hearing in chambers yesterday, one of the private prosecutors Keith Mweemba said a the withdrawal of the matter; the lawyers representing president Banda in the contempt case against Mr M’mrmbe were ready to proceed with the matter.
“We are looking for commencement of trial in the magistrates court,” Mr Mweemba said.
In March this year, Lusaka High Court Judge Chalwe Mchenga ordered that Mr Nchito could not be allowed to prosecute Mr M’membe because although he was the DPP, his action was not in public interest as he (Nchito) was deeply conflicted.
Mr Nchito was seeking the Supreme Court to quash the High Court decision which stopped him from prosecuting Mr M’membe.
Former president Banda has dragged Mr M’membe to court on 19 charges of defamation and contempt but Mr Nchito attempted to take over the prosecution of his business partner, an action that was rejected by the former head of State because he strongly believed the DPP was deeply conflicted.
Mr Banda has also rejected Mr Nchito to continue prosecuting him in other cases arguing that the DPP’s desire to prosecute him was being driven by a personal vendetta against him.
In his ruling at the time, Mr Justice Mchenga said former president Banda was unlikely to have a fair trial as it was inconceivable that Mr Nchito who had been objecting to deal with the complaint against Mr M’membe could fairly and without bias deal with the matter.
“From the evidence before me, I found no basis of coming to the conclusion that the Director of Public Prosecutions’ decision to take over the prosecution of Mr M’membe is in public interest. Having regard to the circumstances of this case, it cannot be in public interest for the DPP to take over the prosecution of his business partner for purposes of carrying on with it or stopping it. Consequently, I find that allowing the DPP to prosecute Mr M’membe is likely to violate the complaint’s right,” Justice Mchenga ruled at the time.
Meanwhile, Mr M’membe’s lawyer Nchima Nchito also applied in the court seeking the court to grant him stay of proceedings in the magistrates court until the matter was determined in the Supreme Court.
But during the hearing yesterday the private prosecutors who included Mr Mweemba argued that the application to stay the proceedings in the magistrates court should have been commenced in the High Court instead of the Supreme Court.
Supreme Court judge Roydah Kaoma reserved a ruling on Mr Nchima Nchito’s appeal to a later day to be communicated later.