Maravi

Chiluba complains to LAZ over Notice of Appeal

Chiluba complains to LAZ over Notice of Appeal
Written by Chibaula Silwamba
Monday, August 31, 2009 3:55:04 PM

FORMER president Frederick Chiluba has written to the Law Association of Zambia (LAZ) to complain against Task Force on Corruption prosecutor Mutembo Nchito, claiming that he ‘illegally’ filed a Notice of Appeal against his acquittal on theft charges involving US $500,000.

In a letter written for and on behalf of Chiluba by his press aide, Emmanuel Mwamba, to LAZ president Stephen Lungu dated August 27, 2009, Mwamba stated that Nchito's conduct amounted to deliberately breaking the law by attempting to appeal without lawful instructions or directives.

"On 17th August, 2009, the Lusaka magistrates’ court delivered a judgment in favour of second president of the Republic of Zambia, Dr Frederick J.T Chiluba. This is in a matter where Dr Chiluba was charged with offences of theft by public servant. He was co-charged with Access Financial Service[s] Limited (AFSL) directors, Faustin Mwenya Kabwe and Aaron Chungu. The state was represented by lead counsel Mr Mutembo Nchito from MNB & Partners," Mwamba stated.

"On Monday August 24th, 2009, The Post newspapers carried a story claiming that the 'state' had appealed against this judgment. The story further published details of a notice of appeal and grounds supporting the appeal. Further reading of the story stated that MNB appealed against the judgment on the directives written to them by Task Force on Corruption chairperson Mr Max Nkole."

Mwamba stated that they promptly undertook to search the details of this appeal at the Lusaka magistrates’ court and the Lusaka High Court registries.

He stated that their search revealed that there was no such Notice of Appeal and supporting documents filed before the courts.

"It has emerged that the letter of instructions written to MNB by Mr Nkole dated 21st August, 2009 was copied to the Director of Public Prosecution (DPP), Mr Chalwe Mchenga and the Republican President, His Excellency Mr Rupiah Bwezani Banda," Mwamba stated. "The DPP responded immediately in his letter also dated August 21st, 2009. He refused to give consent to the appeal and instead advised Mr Nkole and the prosecutor (MNB) to furnish him with a copy of the judgment and intended grounds of the appeal. Mr Mchenga advised that he would then make a decision whether an appeal was relevant or necessary."

He stated that in the afternoon of August 24, 2009, they were informed that a Notice of Appeal had finally been filed by MNB agents in the criminal registry of the Lusaka magistrates’ court.

"It is clear that Mr Mutembo Nchito is an agent of the DPP. It is an indisputable fact that Mr Nchito conducted this prosecution on behalf of the DPP. We are therefore surprised that an agent in Mr Nchito has blatantly usurped the constitutional powers of the DPP and proceeded to appeal in the case even in the face of clear cautionary instructions from the DPP," Mwamba stated. "We are also surprised that an appeal could be lodged on the basis of instructions from Mr Nkole, as in our view, those instructions were illegal."

He explained that Nchito had repeatedly presented himself in court that he was a representative or agent of the DPP and in some circumstances had produced letters of appointment from the DPP when his status was under question.

He stated that Nchito had always insisted that he was a public prosecutor appointed by the DPP.

Mwamba said Nchito took great exception to being referred to as a private prosecutor.

"This clarifications made by Mr Nchito and the position taken by the DPP to have appointed him as a prosecutor, we believe is founded and supported by the law," Mwamba stated. "We are therefore surprised that Mr Nchito and MNB can now execute instructions from Mr Nkole especially on matters of criminal prosecution. We believe, therefore, that Mr Nchito has deliberately misconducted himself by refusing to heed to lawful instructions from his supervising authority and a constitutional officer."

Mwamba stated that Nchito was a longstanding lawyer and was very familiar with the law.

"Therefore, his conduct on this matter amounts to deliberately breaking the law by attempting to appeal without lawful instructions or directives. We believe that Mr Nchito also caused the publication of this [Notice of] Appeal in The Post of August 24th 2009 even before the so-called appeal was lodged in court," Mwamba alleged. "It is these actions, in our view, that bring the noble profession you are privileged to head, in disrepute and into ridicule. Further, it is unacceptable that lawyers should be at the forefront of breaking the law."

He stated that it was also clear that this appeal promoted constitutional breaches as was apparent.

"In our view, Mr Nchito's conduct was designed to remove all constitutional options available to the DPP and was intended to promote legal chaos if the DPP attempted to exercise his powers so provided by the Constitution. The DPP was trapped into public embarrassment by the illegality promoted by Mr Nchito. The action by Mr Nchito, in our view, was further designed to blackmail the DPP to take no other position other than that promoted by himself and Mr Nkole," stated Mwamba. "We are reluctant to include Mr Nkole in our complaint as we are not aware of his status with LAZ. However, in the event that he is your member, this complaint of misconduct should extend to him too."

On August 17, 2009, Ndola High Court registrar, Jones Chinyama, sitting as a magistrate in Lusaka, acquitted Chiluba on all charges of theft by public servant involving US $ 500,000 but jailed his co-accused Kabwe and Chungu for five years imprisonment.

However, Nkole instructed MNB legal practitioners to appeal in the High Court against Chiluba's acquittal.

President Rupiah Banda's government subsequently fired Nkole from his position, saying the Task Force on Corruption head's contracted had expired.

DPP Chalwe Mchenga has since withdrawn the Notice of Appeal. However, Munali Patriotic Front (PF) member of parliament Mumbi Phiri last week filed a notice for judicial review over the decision by Mchenga to withdraw an appeal against Chiluba's acquittal.

Labels: CHILUBA, LAZ, MUTEMBO NCHITO

posted by MrK @ 2:57 PM