Director of Public Prosecutions Mutembo Nchito is coming under pressure to resign and face possible prosecution for freeing his creditor Rajan Mathani from prosecution. Nchito also faces contempt of Parliament charges for misleading the legislature.
It has emerged that Nchito, while making submissions to Parliament to support his ratification as DPP, pledged and assured a Select Committee chaired by Solwezi Central legislator Lucky Mulusa to recuse himself on any criminal matters that would involve Mathani and Banda.
This was as a result of numerous concerns raised by various stakeholders to parliament about Nchito’s impartiality if ratified when he had personal scores with Rupiah to settle while he was idebted to Mathani after obtaining huge financials loans from Finance Bank.
Contrary to his submissions, Mutembo entered a nolle prosequi and has taken a lead role in prosecuting fourth Republican president Rupiah Banda.
In a letter dated April 4, 2013 addressed to Nchito and copied to President Michael Sata, Mulusa finds the DPP’s behaviour not only unprofessional and misleading but criminal and subject to investigations by the Anti Corruption Commission and the Drug Enforcement Commission.
Mulusa is demanding that Nchito reverses Mathani’s nolle prosequi, rescues himself from prosecuting Banda, resigns as DPP and apologises to Parliament and the Zambian people for making false submissions.
“I wish to inform you that, from the onset, the Committee was mindful and alive to the fact that the office of the DPP occupies a formidable position in the administration of criminal justice.
“Further, the Committee was aware that decisions taken by that office may profoundly affect the lives of others, hence the Committee’s position that the person holding that office should possess the ability to possess his or her prosecutorial duties in the manner that is consistent with the rule of law regardless of who is involved in a matter.
“As the DPP, you were also expected to be fearless so as to be in a position to make difficult decisions so as justice prevails in all cases,” Mulusa stated.
Mulusa explains that representatives from security agencies and other relevant professional bodies were summoned to provide information that was considered during deliberations before Nchito was ratified.
He adds that while witnesses that appeared before the committee spoke warmly about Nchito’s professional qualifications and experience in prosecutions, there were disconcerting views in respect of allegations of impropriety when the DPP served as Chief Executive Officer of the defunct Zambian Airways.
“All the witness supported your proposed appointment on condition that the criminal allegations leveled against you were cleared. The Committee did not want to brush these concerns aside in the apparent rush to arrive at a decision.
“The Committee, therefore, was of the view that approving your nomination without a thorough inquiry risked subjecting you to unrelenting contestation and opposition which was going to cripple you as the DPP,” he stresses.
As a result, the Committee resolved to ask the Zambia Police to clear Nchito of any criminal investigations and relied on the appointing authority’s submission that there was no investigation against him at the time and that the investigations instituted in 2008 revealed there was no criminal liability on his part.
“To ensure that your scrutiny was complete, the Committee invited you to appear before it. During your appearance, you commented on your indebtedness to Finance Bank and you eloquently gave a compelling thesis of your alleged persecution by Rupiah Bwezani Banda while he occupied the office of President of the Republic of Zambia.
“To buttress your thesis, you made reference to the fact that political party gatherings were held at State House at which President Banda pronounced on matters regarding your alleged persecution.
“Asked what you would do if faced with the onerous task to make prosecutorial decisions in matters regarding Dr Mathani, or Mr Rupiah Bwezani Banda, you assured the Committee you would recuse yourself,” Mulusa stated.
According to Mulusa, the Committee granted Nchito immunity from prosecution under Cap 12 of the Laws of Zambia but was cautioned that should his testimony deliberately mislead the Committee, the same article would be used to prosecute him.
“After the deliberations, the Committee lifted the immunity earlier accorded you and I wish to inform you that you do not enjoy any immunity from prosecution regarding your status as a witness before the Committee.
“Should your response fail to satisfy me that you did not deliberately mislead the Committee, I will have no option but to seek the Speakers guidance on how Parliament should proceed with this misdemeanor on your part,” Mulusa stated.
Mulusa explains that after watching the conduct of Nchito over the last few months, he concludes that the DPP’s disposition is driven by desire to emancipate his personal circumstance in the Mathani case or settle scores in Banda’s case.
“You are also expected to be fearless to be able to confront difficult decisions so as to ensure that justice prevails in all cases. However, I have noticed that both in the Mathani and Banda cases, this expectation was abrogated when you chose to preside over the matters yourself without due consideration to the promise you made to the Committee as well as respect for the need for justice and rule of law to prevail in all cases; and that job does require a personal approach to matters of prosecution and neither does it require an individual with a lot of personal baggage,” he stated.
Mulusa has told Nchito that he mislead the Parliament when personally entering a nolle prosequi in the Mathani matter despite the DPP personally being idebted to an institution in which the accused owned majority shares.
“Dr. Mathani’s ability to pursue his debtors is amazing in the Zambian financial sector. It will be interesting to know how he has proceeded with thios matter after your interventions.
“Without much debate, your act should be considered as gratification on your part and should therefore receive the necessary attention of the Anti Corruption Commission as well as the Drug Enforcement Commission,” he states.
Further, Mulusa states that Nchito’s decision to personally prosecute Banda is indicative of the DPP’s desire to avenge alleged persecution he suffered when the latter was Head of State and as submitted by himself during the hearing.
“Given the foregoing, I am of the informed opinion that you misled the Committee despite warning you under Cap 12 of the Laws of Zambia.
“I am also of the view that if you had stated the truth in the Mathani and Banda cases specifically, the Committee would not have proceeded to recommend your ratification,” Mulusa emphatically tells Nchito in a letter in the custody of Zambia Reports.
Apart from President Sata, the letter has also been copied to the Speaker Patrick Matibini, the Acting Chief Justice Lombe Chibesakunda, the Attorney General Mumba Malila, the Director General (ACC) and the Commissioner (DEC).
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