Guest Post: Zambia’s Director of Public Prosecutions Describes Efforts to Unconstitutionally Remove Him for Prosecuting former President

Below is a February 16 letter Mutembo Nchito, Zambia’s Director of Public Prosecutions, wrote to fellow prosecutors recounting recent efforts to have him removed from office. Links have been added to some of the references cited.

Dear Colleagues,

I trust you are well. I have had an eventful 10 or so days that I feel duty bound to share with you.

As some of you may know Zambia lost its fifth President October 28, 2014. This is the President that requested me to join the public service as Director of Public Prosecutions. My mandate was to transform the Ministry of Justice’s Department of Public Prosecutions into an autonomous National Prosecution Authority. This I embarked on with a reasonable measure of success.

That said one of the main reasons I was hired was my history of anticorruption prosecution. Since 2002 I have prosecuted many cases of high profile corruption that have seen me indict two former presidents, a chief of intelligence,  a Zambia Army Commander, a Zambia Air Force commander and a commander of another defence force called the Zambia National Service. I also prosecuted a former Minister of Finance and his permanent secretaries for corruption and abuse of office among many other high profile individuals.

Except for the first president who was acquitted in very controversial circumstances most, if not all the cases I prosecuted, resulted in convictions. As you can imagine this has earned me very powerful enemies.At the time of the death of our fifth president I was in the middle of prosecuting the fourth president for abuse of office by personalizing the proceeds of a government contract which, in concert with his family he banked in Singapore. This money once commingled with funds laundered through Mauritius was transferred to Japan for purchases that were then shipped to Zambia.  This case has reached an advanced stage. I have closed the state’s case and it is now for the court to determine whether he has a case to answer.

The death of our fifth president required the election of a new president in ninety days. This happened on 20 January 2015. The new president is Mr. Edgar Chagwa Lungu who is from the same political party as the late president. Interestingly the former president that I am prosecuting, Mr. Rupiah Banda, switched his support from his own party to Mr. Edgar Chagwa  Lungu the ruling party’s candidate who publicly acknowledged financially benefiting  from Mr. Banda for his campaigns.

Some time before the election The Post, a leading Zambian newspaper published an article that claimed that the quid pro quo for Banda’s support for Lungu was that his cases in court would be stopped. Citing sources allegedly close to the discussions the Post disclosed that to end the court cases Banda and Lungu agreed that a way should be found to remove me from the office of Director of Public Prosecutions to make their work easier.  Once this scheme was publicly exposed it appears that new approaches had to be found.

On Thursday 5 February my elder brother Mr. Nchima Nchito SC with whom I practiced law before becoming DPP was called by his former law school class mate who also happened to be one of the new president’s campaign managers, a Mr. Kelvin Fube Bwalya, who asked to meet him. When my brother went for the meeting Mr. Bwalya informed him that he had a message for me from the President. The message was to the effect that the President wanted me to resign or face an acrimonious removal process.  My brother wondered why the President was using a private individual to deal with the removal of the DPP.  He wondered why the President could not call me. He was told that the President did not want to speak to me. When he pressed this envoy further, Mr. Bwalya said he thought that the reason I was being asked to resign was because of the promises President Lungu made to former President Banda whom I was prosecuting. When my brother pressed further, asking what grounds I should resign on, Mr., Bwalya was unable to provide any meaningful answer except to insist that it was in my interest to resign.

When the message was relayed to me my response was that the least they could do for me was to tell me what wrongs I am supposed to have committed to warrant my removal from a constitutionally protected office of DPP to allow me to make an informed decision. None have been supplied.

I have continued receiving warnings that the new government was taking aim at me. On Monday 9 February I received a tip off from a journalist that he had received information that to facilitate the ending of cases involving former President Banda and investigations against members of his family, I would be arrested to create a basis for my removal from office. I found this information ridiculous and difficult to believe. By our police standing orders a constitutional office holder such as myself cannot be arrested unless there is direct presidential permission. If the president is convinced that there is ground for the arrest of a constitutional office holder such as myself then he ought to have grounds upon which to pursue my removal as prescribed by our constitution. The president would then have to set up a tribunal to investigate allegations of misbehavior or incompetence which if proved would lead to my removal. The standard of proof before a tribunal is much lower than that what is required in a criminal trial. Why have they chosen the route of criminal proceedings?

From what I can see so far this route seemed easier to manipulate to achieve their goal of removing me quickly. The proper way of dealing with serious allegations of crime is to report them to the police or other law enforcement agencies who in turn should carry out an investigation to determine whether there is evidence showing that a crime was committed. If such evidence exists, then that suspect is brought before a court and is prosecuted. In my case they chose a method reserved for minor offences which can be commenced by way of a complaint before a magistrate. The magistrate would ordinarily issue summons against the person the complaint is made. What they did in my case is to get a very close associate of the new president went to lodge a criminal complaint against me. The person they used is Newton Ngu’ni, a former deputy Minister for Finance.  It is not the first time this gentleman has been used in this way. After the unfortunate death of our fifth President he was used to start a court action that attempted to unconstitutionally remove the acting President, then Dr Guy Scot. It was very clear then that he was working with our current President who was defence minister then but who thought that he should have been the acting President.

Mr. Ngu’ni went to the Lusaka Magistrates court with a barrage of allegations ranging from accusing me of having forged a judgment in favor of my client, the Central Bank of Zambia, and planting drugs on a political activist who is close to former President Banda. He went before three courts in Lusaka who essentially advised him to provide evidence of such serious allegations against a serving DPP. Instead of providing evidence he decided to withdraw the complaint and spread his forum shopping to a town which is fifty kilometers outside Lusaka called Chongwe. Why are they avoiding the due process of the law if as they say there is evidence of criminality against me?

Mr. Ngu’ni, the new President’s associate, then went before a very junior magistrate in a rural town fifty kilometers outside Lusaka, whom he seems to have convinced to immediately issue an arrest warrant on charges that have not been investigated by any competent authority. Armed with this warrant he rushed to publish it on the online media with screaming headlines that the DPP would be arrested.

I assembled a team of lawyers to advise me. Although I could, arguably, stop this action with a Nolle Prosequi as I am constitutionally entitled to do, I chose to proceed to court to obtain leave to commence judicial review proceedings which was granted and adjudged to operate as a stay of the warrant arrest from an inferior tribunal. This order was granted after midnight in the early hours of Thursday 12 February.  This order notwithstanding, the police arrived at my house at 05:00hrs to effect the warrant as they put it.  I showed them the court order that granted leave for judicial review and stayed the warrant of arrest. They refused to obey the court order and bundled me in vehicle and drove me fifty kilometers outside Lusaka where I was thrown into a crowded cell like a common criminal.

My ride to Chongwe was interesting. I had a police motorcade of at least six vehicles and about 30 armed paramilitary police and plain clothes police men. This raised the question: was this a mere execution of a simple arrest warrant from Chongwe or was there more to it? In our system there is no way a private citizen could command such a force without the involvement of the President.

After I was thrown into a cell my lawyers rushed back to the same judge who had granted the order of stay fifty kilometers away in Lusaka. He gave further orders whereby he exercised his supervisory authority over the magistrate’s court by calling the case file to his court and quashing the warrant of arrest and declaring all the Chongwe proceedings null and void ab initio because the Chongwe  court did not have jurisdiction over me in matters where the crimes where allegedly committed in Lusaka! Even with the clear order the police have tried to remand me in custody. Who is pulling their strings?

It is easy for me to resign as requested by the President’s campaign manager but what does this do to the independence of the office of Director of Public Prosecutions? I am quite happy to suffer the indignities being thrown at me than to compromise the independence of my office and jeopardize all other constitutional office holders.

My situation remains precarious but I will hang in there!

Mutembo Nchito SC.
Director of Public Prosecutions,
National Prosecution Authority,
Independence Avenue,
Lusaka

Editors note: Click here for a story in the February 18 Zambia Post headlined “State House was giving instructions to Chongwe Magistrates’ Court staff.”

3 thoughts on “Guest Post: Zambia’s Director of Public Prosecutions Describes Efforts to Unconstitutionally Remove Him for Prosecuting former President

  1. This is very disturbing, but alas completely believable. If I’m looking for a silver lining in this depressing account of politically powerful actors trying to squelch an anticorruption investigation, it’s the fact that there is still enough of a semblance of rule of law in Zambia that it’s actually possible for a court to quash the arrest and assume jurisdiction — and enough of a rule of law that the President feels the need to maintain at least the trappings of legality (though if this account is to be believed, not much more than the trappings).

    The account is also reminiscent of the conflict in Indonesia between the KPK and the police — in which public support for the former was crucial to protecting KPK Commissioners from trumped-up charges meant to intimidate them and remove them from office. It also reminds me a bit of the face-off between President Nixon and Special Prosecutor Archibald Cox in the Whitewater investigation (though there Cox was simply fired – on Nixon’s orders – rather than arrested.) Again in that case, it was strong public support for Cox, and public condemnation of President Nixon’s action, that made the difference. I wonder how the conflict described in the letter between the President and the DPP in Zambia will play out in the Zambian court of public opinion? Anyone out there, who knows Zambia better than I do, have a view on this?

  2. Disturbing, indeed. A couple of observations. First, the press – in particular, The Post – has played an important role in the development of this story and, hopefully, it will continue to do so in the court of public opinion. I wonder about its prospects, though. Zambia, which had been making strides in press freedoms, fell 20 spots in the Reporters Without Borders ranking last year. The decline came before the new president’s election, of course, but is the targeting of the DPP only part of a quid pro quo arrangement or is it also a symptom of broader backsliding on transparency and anti-corruption efforts (…to the extent that Zambian presidents have made genuine efforts to promote such efforts, which, according to the letter, is a dubious proposition)?

    Second, it will be interesting to see how this case unfolds in the courts. Given the president’s alleged inability to pressure certain judicial actors while succeeding with others, the resolution of this case in favor of the DPP could make an important statement about the judiciary’s independence.

  3. Hi,
    Iam from Zambia and I can confirm that what our DPP has written rings true. As things currently stand, the DPP was subsquently dragged to another court in Lusaka where he was forced to enter a “nolle prosequi” i.e. take over the court proceedings and stop the process, which he is constitutionally entitled to do. Infact, the magistrates court where he was appearing agreed with him. The President was then forced to set up a tribunal, which began sitting on 1st April 2015. Interestingly, two members of the three man tribunal (all former Chief Justices) have issues with the DPP. One was forced to resign when the current DPP, then a lawyer, exposed him as receiving illicit money from a secret government account from our second President. The other was dropped in circumstances where he was shielding erring Judges, whom our current DPP exposed. He has asked them to recuse themselves because they are conflicted and may be biased, but they have apparently refused to do so.
    The other troubling thing about this tribunal is that they want it to be held ‘in camera’, when all the allegations were made publicly. This secret hearing, coupled with the discredited adjudicators, seems to point in only one direction – which will be very bad for the rule of law in Zambia. Please help to shine a spot light on this very dark chapter which is being written in Zambia. We want a public hearing where any underhand methods will be clearly exposed.

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