Former President Rupiah Banda has maintained that Director of Public Prosecutions Mutembo Nchito cannot prosecute his friend and business partner Fred M’membe because he has exhibited high levels of personal interest in the matter.
Through his lawyers Makebi Zulu Advocates, former president Banda said although he was aware that Mr. Nchito as DPP has power to take over any criminal case, it was also in public interest that he was deeply conflicted with his association with the Post Newspaper owner.
In his response to DPP’s letter of takeover of the prosecution of Fred M’membe and the Post Newspaper Limited case, president Banda said he did not agree that the power reposed in the DPP was unfettered.
“We are cognizant of the powers vested in the DPP as enshrined in article 56(3)(b) of the constitution. Needless to say that we do not agree that the power reposed in the DPP is unfettered. It is certainly subject to legitimate exercise especially that integrity is the chief cornerstone of that office,” president Banda said.
President Banda stated that instead of the DPP responding to the issues he raised by assuring the former Head of State of a fair trial in light of the concerns, Mr. Nchito turned personal.
“We were hoping your response would be reassuring of a fair process in light of the concerns contained in our letter that have not been disputed. However, your response suggests a confirmation of my apprehension especially that you have rejected my wish to privately prosecute on the basis that you consider our letter unprofessional,” President Banda said.
The former head of state said Mr. Nchito’s response was total betrayal his assumption that the proceedings would be fair and independent of any conflict, perceived or actual.
“I am of the considered view that where professional independence cannot be guaranteed, it is a fair act of integrity that a recusal be considered as is clearly apparent in this case,” he said in a letter which was copied to the Principal Private Secretary at State House, Attorney General, LAZ, PNP Advocates and Keith Mweemba Advocates.
He said: “My concern is simply that your personal interest may conflict with your professional duty. This is so as I consider it prudent that you ought to have called for the file for purposes of reviewing before the decision to take over the proceedings. The very act of taking over and then asking to review betrays the supposed legitimate exercise of the powers conferred on you and your independence.”
President Banda observed that the language in the letter Mr. Nchito wrote clearly showed an anxiety to peddle personal attacks over legitimate concerns conflicted with the ascribed role of a public prosecutor.
“It is thus my view that your response clearly goes to frustrate my intention to protect my rights to a fair trial by way of section 89 and 90 of the Criminal Procedure Code, which allows me to proceed in the manner I did without recourse to your office. To suggest that you have taken over, merely because you have the power to, is itself abuse of that power as no other legitimate reasons have been given. I thus implore you to reconsider your position on this matter and advise appropriately,” president said.
The former president was responding to a letter written by the DPP informing him about the takeover of the Fred M’membe and the Post Newspaper’s defamation case.