Maravi

Kunda, Mchenga never learn

Kunda, Mchenga never learn
By Editor
Sun 20 Dec. 2009, 04:00 CAT

The rule of law is founded on the assumption that everybody is equal before the law. The right to equality before the law is fundamental to any just society. Whether political ally of those in power or opponent of those in control of the state apparatus – all are entitled to equal protection before the law.

Of course, the state cannot guarantee that life will treat everyone equally, and it has no responsibility to do so, but under no circumstances should those in power impose additional inequalities; they should be required to deal evenly and equally with all citizens. And this means that no one is above the law.

But we also know that in every society throughout history, those who administer the criminal justice system hold the power with the potential for abuse and tyranny. However, no democratic society should tolerate such abuses.

The state must have the power to maintain order and punish criminal acts, but the rules and procedures by which the laws are enforced must not be arbitrary or subject to political manipulation by those in power, by Rupiah Banda, George Kunda and Chalwe Mchenga.

For this reason, our criminal justice system will be effective to the degree that its administration is judged by the people of Zambia to be fair and protective of individual rights, as well as of the public interest. This is what anchors democracy and law and order.

The problem that Rupiah and his minions have found themselves in in relation to Mchenga, the Director of Public Prosecutions, is because of their refusal to respect the rule of law. The issue that the Law Association of Zambia has raised is fundamental to constitutionalism and the respect for the law.

It has been established beyond doubt in the minds of many of our people that Mchenga has not been operating independently. If anything, Mchenga is operating like a puppet on strings being pulled by Rupiah and George. This goes against the spirit of our Constitution that made the office of the Director of Public Prosecutions independent. The reason for this independence was to ensure that justice in our country was not a prerogative of the president and those around him. It was to make sure that the Director of Public Prosecutions was not an agent of the president and his minions.

What Mchenga has done is to turn this very important institution or office of the state into an agency at the service of Rupiah’s political interests. Today, Rupiah can direct the Director of Public Prosecutions to stop legitimate court proceedings or appeals for personal political reasons. And he can also use him to torment his political opponents by commencing prosecutions against them based on trumped-up charges. We have seen all this happen under Mchenga as Director of Public Prosecutions.

There is a history to all this. Levy Mwanawasa has been credited with having carried out a spirited fight against corruption. For all the good that he did, there was always the perception that the fight against corruption was selective. Some of our people felt that the law was not being applied equally to all those who committed serious offences, those who stole public funds during the reign of Frederick Chiluba.

In fact, it seemed that it was difficult for Levy to deal with the abuses of power that related to the MMD. Throughout Levy’s tenure, we never stopped reminding him that something needed to be done about the MMD motor vehicles that were purchased using stolen public funds for the 2001 elections which Levy controversially won.

It is this same complication with the 2001 elections that brought around the Kashiwa Bulaya debacle. Bulaya testified in favour of Levy during the presidential election petition that followed the 2001 elections. George wanted to reward Bulaya and decided to take over the functions of the Director of Public Prosecutions.

George, who was then Minister of Justice and Attorney General, decided to abuse his office by calling for the Bulaya file so that he could render an opinion. The law did not allow George to exercise such oversight over the office of the Director of Public Prosecutions. If the Director of Public Prosecutions thought there was need for help from the Attorney General, it was his or her duty to refer the matter to the Attorney General.

This could only be done when there was an important matter of public interest or policy which the Attorney General would have to comment on. The Attorney General had no power to call for a file to express his opinion. This bar on the Attorney General exists to protect the independence of the office of Director of Public Prosecutions. The separation of the office of the Director of Public Prosecutions from that of the Attorney General was made for a good reason.

There was realisation that while the Attorney General exercised quasi judicial functions, he was at the same time a member of Cabinet, and thus a political animal. It is not sufficient to say that those who hold the office of Attorney General are experienced lawyers with high standards of probity and as such are able to separate that part of their activity which they should discharge as impartial officers of justice from that which they perform as political animals. As we have seen from our country’s experience, any system which relies on such an approach is open to abuse, and was so abused by George and his puppets like Mchenga.

In the case of Bulaya, George abused his office by calling for the case file and trying to give the then acting Director of Public Prosecutions Caroline Sokoni instructions to stop the case in public interest because there was no evidence. Sokoni, acting as an independent Director of Public Prosecutions, gave George her opinion.

This is what has now come to be known as the famous Sokoni letter which George has failed to make public and sits on like a hen protecting its eggs. Sokoni told George, in not so many words, that his legal interpretation was flawed. George made sure that Sokoni was never confirmed in that position. He brought in his puppet Mchenga who dutifully and shamefully carried out George’s evil scheme. Mchenga sneaked into court to enter a nolle prosequi in favour of Bulaya.

The prosecution of Bulaya was stopped out of this evil conspiracy between George and Mchenga. Again, to try and justify their evil schemes, they resorted to lies and half truths, and their usual pomposity and arrogance and tried to show that they knew the law better than others. They went on to claim that there was a weak case against Bulaya which would not succeed. They released all the documents on the Bulaya case but hid the Sokoni letter. It took a very strong response from a cross section of our people to convince Levy to move away from backing this evil scheme. Mchenga who is supposed to be independent also miraculously took the same view as Levy and took the matter back to court.

In fact, Levy made it very clear that it was his decision to take the matter back to court. George embarrassed himself, Mchenga, Levy and the entire legal profession. But they got away with it. The Law Association of Zambia spared Levy, George and Mchenga. And probably because of this, George and Mchenga thought they would always get away with it; it was a practice that they would engage in endlessly with impunity and nobody would raise issues. But there is a time for everything. And in life sometimes it is not wise to push one’s luck too far. There is a limit to how much wrongdoing can be tolerated. Even a well-tamed dog will not accept endless abuse; one day it would turn against you even if you gave it its usual bone.

Over the years, George has continued to use Mchenga to stop cases that should otherwise have gone to court because of political considerations. Mchenga for his part has been happy to play a puppet to George. He sees nothing wrong with abusing the important office that he holds as long as his puppeteer George is happy. Mchenga shows no loyalty to the Constitution in the exercise of his functions. Mchenga is now not a state Director of Public Prosecutions. He is actually George’s Director of Public Prosecutions, a hired gun.

George would like to use the Director of Public Prosecutions to wage personal battles. He is not interested in giving that office independence. This is what he did during the years when Levy was president and continues to do so under Rupiah.

George and Mchenga should have learnt some lessons out of their Bulaya disaster. But they are beyond learning. Their arrogance and pomposity have blinded them.

This is why they can do what they have done in the Chiluba appeal case and expect the Law Association of Zambia to praise them. We have not forgotten that during the Bulaya debacle, George was so petty as to suggest that the then president of the Law Association of Zambia Willie Mweemba was jealous of him and had been jealous from university.

Willie was being attacked for having questioned George’s behaviour as attorney general in relation to the Bulaya case. Instead of defending his professional misconduct, George launched a childish and petty personal attack against Willie. This is exactly what George is trying to do with Stephen Lungu, the current president of the Law Association of Zambia.

Instead of addressing the issue that has caused the Law Association of Zambia to call for Mchenga’s resignation, George has decided to accuse Steve and the Law Association of Zambia of being in alliance with the PF-UPND pact. What nonsense is this? What childishness is this? How low and petty can one be? George and Mchenga never learn.

Labels: CHALWE MCHENGA, GEORGE KUNDA, SATA

posted by MrK @ 9:15 AM