The Lusaka Magistrate Court today heard that allowing Director of Public Prosecutions Mutembo Nchito to prosecute his business ally Fred Mmembe on contempt of court charges would be like playing the game of Animal Farm where some animals are more equal than others.
Lawyer Jonas Zimba of Makebi Zulu Advocates told Magistrate Mwaka Mikalile on Thursday June 12,2013 that Fred Mmembe is not sacred for him to be given special treatment. He said this when lawyers representing former President Rupiah Banda made an application to have the matter referred to the High Court to determine constitution matters.
Rupiah Banda has dragged Fred Mmembe owner of the Post Newspapers to court for seventeen counts of contempt of court but the DPP has applied that he takes over the prosecution of Mmembe.
“It is not in dispute that the DPP can take over any case and prosecute but it is also not in dispute that the supreme law of the land guarantees fair trial. If this is allowed, for short of better words, will create sacred persons. Playing animal farm where others are more equal,” he said in his submissions.
Earlier, Makebi Zulu told Magistrate Mwaka Mikalile that just as much as an accused is entitled to a fair trial, a complainant is also entitled to a fair trial and allowing Nchito to prosecute his friend does not amount to fair trial.
He said article 18 (1) of the Zambian constitution guarantees fair trial.
Sakwiba Sikota State Counsel also argued that the constitution has safeguards in place to stop the excessive use of powers such as the one the DPP wants to do.
Gilbert Phiri also argued that it was obviously clear that the DPP conflicted himself in the matter because the DPP was a potential witness for the complainant as the cases being complained of are being prosecuted by the DPP himself.
Another lawyer for former President Keith Mweemba said allowing Nchito to take over the case will not only violate the Bill of Rights but also other provisions.
Mweemba sent the court into laughter when he said allowing Nchito to prosecute Mmembe is like someone searching or looking for a black cat in a dark room with black glasses or eyes.
“The state’s submission and the DPP’s conduct as futile as someone searching or looking for a black cat in dark room with black eyes,” he said.
In response the DPP representative, a Ms. M. Nawa, struggled to respond but said the DPP was consulting the Attorney General because of constitutional matters. A Mr. C. Hamwele, from Nchito and Nchito, a company in which the DPP is a consultant which also represents the defendant M’membe, failed to say anything sensible.
In reply Makebi Zulu said it was good that the state admitted that there were constitution issues hence the need to refer the matter to the High court.
“The constitution of Zambia under article 28 only allows this honourable court to refer the matter to the high court not to the Attorney General,” Zulu said.
Magistrate Mikalile has set June 27,2014 as the date of ruling.
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