Mr.Mutembo Nchito

Jesus is the only man who ever lived who did not exercise his right and power to nolle prosequi: “Do you suppose that I cannot appeal to My Father, and He will immediately provide Me with more than 80,000 of angels?” he said in Matthew 26:53. He would have appealed to the highest authority (His Father) to stop his incriminators, but he chose not to. He had the power to silence his prosecutors, but he reserved the right and power because he had a mission that involved being wrongfully charged, unjustly prosecuted and maliciously killed. Mutembo Nchito is not Jesus Christ; he was not born to die for the hard core and legal rapists of the Zambian legal echelon.

In my last article published by the Zambian Watchdog and the Lusaka Times, I predicted rather presciently that Zambian politics is turning out to be zoo-like and its legal system jungle-like. In the light of the recent event where the Director of Public Prosecution (DPP), Mutembo Nchito, has entered into a nolle prosequi in his own case is unprecedented, but not insuperable. I do not intend to side with the DPP. As I have written before, he is neither innocent nor above the law. However, when those entrusted with national governance want to arbitrarily rise and rule above the law, the position taken by the DPP seems a lesser of the two evils. In some way, it is justified for three reasons.

First, the Pf government has not at any time revoked or dropped Mutembo Nchito from the DPP position. He remains, hitherto, the legitimate and constitutional holder of the office. You can’t break the law to enforce the law. That is what government or its cronies are attempting to do. Mutembo was DPP under Sata and President Lungu was then both Minister of Justice and Defence. Surely then, as Mutembo’s boss, did he not know that the one the Pf administration had entrusted the highest decencies of prosecuting criminals in Zambia was himself wanting? Why was Minister Lungu silent then? The arguments that Mutembo is behaving against the law are unfounded; the State cannot act above the law and expect its governed to act below it. That is a symptom of dictatorship.

Mutembo is a citizen who just happens to be a reigning DPP at the same time. Conflict of interest? Of course, and that is where the government got it all wrong. In a normal and working democracy where the charge is not instigated by malice and political witch-hunt, Mutembo’s behaviour would not be justified or even tolerated. But the government is in a hurry to replace Mutembo with a DPP who would fulfill Rupiah Banda’s election support for handing the presidency over to President Lungu. The gambit is backfiring.

Second, Zambia set precedence by removing immunities of presidents who had left office. Why didn’t Mutembo’s accusers first fire him before charging him? Anyone in Mutembo’s position would have done what he has done. He is not Zambia’s saviour. The lame move by Mutembo’s accusers has the potential to pre-empt further future charges on similar grounds. A nolle prosequi may prevent the laying of the same charges against Mutembo. It will be ironic because Mutembo may now be the most powerful individual in Zambia. He cannot now be removed with trumped up allegations. As a reigning DPP, he has the right to enter a nolle prosequi where he has cause to believe due process has not been followed.

Third, it is contended that by using the nolle prosequi powers vested in him by the constitution, the law against natural justice is violated. Mutembo has the chance to postulate that elements of natural justice themselves, the right to be heard and the right to an impartial and unbiased tribunal, may have been deranged. While the Nguni’s prosecutors will maintain that nolle prosequi has forestalled them of the right to be heard, the DPP would argue that the uninvestigated charges and the manner in which they could have been politically-motivated pre-empts the other salience of natural justice, namely, bias.

In summary, two things should be borne in mind in dealing with the issue of the DPP. As a position, the DPP has the power to stop a prosecution. As a person, a man may not be a judge in his own cause, but nothing prevents him from being his own defender. Mutembo is using the constitutional powers at his disposal to execute his own escape, though morally reprehensible, it is neither illegal nor unlawful. Last, Mutembo Nchito may be just what in religious devotion is termed “answer to prayer.” Under Sata the State did anything it wanted to do, almost at will. But it did one good thing; it appointed Mutembo as DPP, albeit, controversial, and Mutembo is turning out to be its thorn in the flesh. Although this government may have brought it upon itself, it is, nevertheless, good for democracy and may help to sanitize the bloated powers the Zambian president enjoys under the current laws.

By Charles Mwewa

The author teaches Administrative Law at CDI College in Toronto, Canada, and he is the author of The Legal Aspect of Landlord and Tenant Business in Ontario (Canada). [Blog: http://www.mwewa.ca/]