FORMER Chief Justices Mathew Ngulube and Ernest Sakala will remain members of the Annel Silungwe Tribunal investigating suspended Director of Public Prosecutions (DPP) Mutembo Nchito’s alleged misconduct after the tribunal dismissed all the three preliminary issues of bias raised by Mr Nchito because they lacked merit.
Former Chief Justice Annel Silungwe yesterday delivered a 40- page ruling on the preliminary issues raised by Mr Nchito among which he demanded the recusal of Justices Ngulube and Sakala because of alleged bias and incompetence of the tribunal.
Justice Silungwe said the tribunal considered the preliminary issues regarding the disqualification of Justices Ngulube and Sakala on account of bias, whether actual or perceived, had come to the conclusion that there was absolutely nothing to demonstrate that the embattled DPP had offended any of the two members of the tribunal to impute bias.
He ruled that Mr. Nchito’s allegation that Justice Ngulube received money from a secret account held in London did not have merit as the former Chief Justice was cleared of any wrong doing by appropriate authorities that included the office of the Director of Public Prosecutions as well as the Task Force on Corruption.
“We have carefully considered the allegations leveled against Justices Ngulube and Sakala. We have also considered the submissions and authorities cited by both parties. From the forgoing analysis of the allegations of bias against Mr. Justice Ngulube, we are satisfied that there is no merit to warrant Mr. Justice Ngulube to recuse himself from the sitting of this tribunal. We equally find no merit in the allegations of bias against Mr. Justice Sakala to warrant him recusing himself from sitting on this tribunal. The allegations of bias against the two members do not form a sound basis for the preliminary issue of disqualification,” Justice Silungwe said.
Justice Silungwe stated that Mr. Nchito had failed to show that he did anything wrong against Justice Ngulube to generate hostility, hatred, animosity or dislike against the suspended DPP during the proceedings of the tribunal.
He ruled that Mr Nchito’s alerting of Justice Ngulube about information concerning a secret account and being a messenger of the late president Levy Mwanawasa could not cause offence to any reasonable person, let alone to a person occupying the office of the Chief Justice.
Mr Nchito in his preliminary issues accused Mr Justice Ngulube of having been employed or worked for Dr Rajan Mahtani and the Mahtani Group of Companies and that according to him, Dr Mahtani was a potential witness in the tribunal proceedings because of the nolle prosequi Mr Nchito granted the Finance Bank chairman.
Justice Silungwe ruled that Mr. Nchito had pre-empted his accusation that Justice Ngulube was employed by Dr Mahtani when he admitted he was not sure about his own accusation.
He stated that Mr Nchito had submitted that Justice Ngulube should recuse himself in accordance with the maxim nomo judex insua causa (no person should be a judge in his or her own cause) but that the submission could not hold because none of the members of the tribunal was a party to the proceedings.
Mr Nchito was a judge in his own case of contempt when he took over his own prosecution and entered a nolle prosequi in his own favour.
“Mr Nchito submitted that Justice Ngulube should recuse himself in accordance with the maxim ‘nomo judex insua causa’. This is a principle of natural justice that no one should be a judge in a case in which he or she has a personal interest. We do not see on the facts as submitted how this maxim applied to this tribunal because none of the members whose impartiality has been called to question is a party to the proceedings. We have not seen any proof of personal connection between Justice Ngulube and some of the matters in dispute,” Justice Silungwe said.
He ruled that Mr. Nchito’s life did not begin and end as a DPP as he had a professional and private life and that it was therefore important that the individual interests of the Mr Nchito should not override the broader public interest of safeguarding the reputation and integrity of the constitutional office.
Justice Silungwe said although the State had submitted that it was not averse to conducting proceedings in public, it was the considered view of the tribunal that it was its duty to consider not only the interests of parties and witnesses but also the overriding interests of the public.
He stated that precedence had it that in Zambia tribunals constituted to probe allegations against constitutional office holders established that the tribunals had generally been conducted in camera and that the Annel Silungwe Tribunal was not going to depart from the procedure.
“Some examples of the said tribunals are the Judge Sunkutu tribunal, the Judge Katanekwa Tribiunal, Judge Barthlomeo Mumba Tribunal and the Mukelabai Mukelabai Tribunal. In the circumstances, there is no basis to warrant departure from the established procedure. We therefore are not ready to depart from the procedure that has served the country so well,” Justice Silungwe ruled.
Meanwhile, the tribunal has ruled that President Lungu had the authority to amend the terms of references of the inquiry as there was no authority that barred the Head of State from amending the terms of references.
Justice Silungwe said the tribunal had rejected the submission by Mr Nchito that a separate tribunal should be constituted to deal with the fresh allegations that had been levelled against him.
He ruled that the amendment of the terms of references by President Lungu was within the law and reaffirmed its commitment to conduct the proceedings independently to afford both parties a fair hearing.
The proceedings of the tribunal formally started its sittings in camera yesterday after a one month adjournment.