There was shock and disbelief in the Lusaka Magistrates’ Court yesterday when the Director of Public Prosecutions (DPP) Mutembo Nchito applied to take over the prosecution of Fred M’membe in a case in which former republican President Mr Rupiah Banda has sued Post newspaper editor Fred M’Membe on nine counts of criminal contempt.
Lawyers representing Mr Banda objected stating: “We are skeptical over the decision by the DPP who is the lead prosecutor in the complainant’s cases before courts and we fear that our client may never receive a fair trial because the nature of the application by the DPP.”
The nature of the relationship between Mr Nchito and Mr M’membe in relation to the former President would prejudice the doctrine of fair trial for the complainant as guaranteed in the constitution, Mr Zulu argued.
Last month Mr Banda applied to the High Court to remove Nchito from his prosecution because of a conflict of interest over defunct Zambian Airways in which Mr Banda believes that Nchito and M’Membe are avenging his perceived refusal to bail out their company which went under.
A State Advocate Mable Nawa informed Magistrate Mwaka Mikalile that the DPP wanted to take over the private prosecution lodged by former president Rupiah Banda through his lawyers Makebi Zulu.President Banda has dragged Mr M’membe and the Post Newspaper to court for contempt for what he described as malicious and defamatory editorials against him (President Banda) with the intension to fracture the integrity and independence of the court in cases in which the former head of state is currently before the court on allegations of corruption and abuse of office.
M’membe is being defended by Nchito and Nchito law firm while the Post newspaper is being defended by its legal department. After Mr Nchito made the application, Mr Banda’s advocates Makebi Zulu, Keith Mweemba, Gilbert Phiri, Jonas Zimba and Irene Kunda strongly objected to the application, arguing that it was absurd for Nchito to involve the State in a solely private legal matter involving Mr M’membe, a private citizen.
“We are skeptical over the decision by the DPP who is the lead prosecutor in the complainant’s cases before courts and we fear that our client may never receive a fair trial because the nature of the application by the DPP cannot be allowed to be objected.
Magistrate Mwika Mukalile who is hearing the matter advised Mr Banda’s lawyers to pursue the matter with the DPP in his chambers and that if the parties failed to agree on the way forward.
Mr Nchito’s application to the State to take over M’membe’s contempt case stunned the court yesterday because the Director of Public Prosecutions is the lead prosecutor in the president Banda’s corruptions cases.
President Banda told the court that he had a constitutional right to sue Mr M’membe as a private citizen and the Post Newspaper who had in their editorials convicted him (president Banda) in cases which were on-going in the courts of law.
President Banda argued that while the DPP had exclusive constitutional authority to take over and stop any case, it was legally and morally incorrect for him to abuse his discretion to take over a case in which he had full and unreserved interests.