Friday, December 18, 2009

LAZ is right, Mchenga must resign

LAZ is right, Mchenga must resign
By Editor
Fri 18 Dec. 2009, 04:00 CAT

In life, it’s always better to be clear about things. The decision taken by the Law Association of Zambia, under the leadership of Stephen Lungu, is a very big one, a very important one.

It is a decision that needs to be understood in all its dimensions because it goes to the core of what the Law Association of Zambia should stand for and good governance in this country.

To anyone who has been following the development of the Law Association of Zambia’s position on this matter closely, it should be clear that it has taken time to reach where we are. It seems the Law Association of Zambia had a lot of internal soul searching on the important question of how Director of Public Prosecutions Chalwe Mchenga has conducted himself in the aftermath of the acquittal of Frederick Chiluba. The Law Association of Zambia to its credit did not rush to its conclusions but waited until they had understood the whole matter before they issued any statement on it.

In one of the earlier statements that the Law Association of Zambia issued in connection with the handling of the appeal against Chiluba’s acquittal, they politely but firmly observed that it was clear that the decision not to appeal was not made by Mchenga.

Mchenga for his part, notwithstanding that a most serious allegation against his professional integrity had been made by the professional body that regulates all lawyers in this country, chose to remain quiet. Mchenga behaved as if nothing had happened. The Law Association clearly said Mchenga had abrogated the Constitution and chose to ignore the legal fraternity to which he belongs.

Mchenga’s job is one of the most important jobs in the maintenance of law and order, fairness and justice in our country. Mchenga’s discharge of his duties should be guided by the law, honesty and integrity. What is clear is that Mchenga has failed on this score. He is a politically pliable Director of Public Prosecutions who makes decisions to please his political masters and who acts according to the dictates of those in power.

Mchenga is a shame to the legal profession. Such a spineless character should never occupy such an important office. Mchenga should be hunted out of the office he has disgraced.

Some of our people may have forgotten what actually happened in connection with the Chiluba acquittal and the subsequent withdrawal of the appeal that was lodged. Before even the reading of the judgment of magistrate Jones Chinyamba acquitting Chiluba was completed in Lusaka, Rupiah Banda made comments in Kabwe whilst addressing a church meeting which showed that he knew the outcome before the judgment was made.

After the judgment was delivered, the very next day, even before anybody had a chance to read the handwritten judgment, Rupiah was thanking the Zambian people for accepting the acquittal of Chiluba. When the former chairman of the Task Force Maxwell Nkole decided to appeal, Rupiah fired him for being indisciplined and said as much in public. Mchenga withdrew the appeal that was filed and he gave false reasons for doing so. First he claimed that the lawyers that filed the appeal did not have his permission to do so.

And this was proved to be a lie because Mchenga knew very well that no such permission was required. We say this because not very long before, Mchenga had obtained a judgment from judge Mwanamwambwa clearly stating that no such permission was required from him for a prosecutor to appeal. When this lie was exposed and his claim of permission discredited, Mchenga resorted to another lie. He claimed that there was no merit in the grounds of appeal that had been filed. Again, this lie was exposed by many people who had read the judgment. The Law Association of Zambia made it clear that there was merit in the grounds of appeal and the matter was therefore appealable.

Mchenga’s lies fell flat when the real reasons for his refusal to appeal began to emerge in the public. Realising that Mchenga was incapable of defending his lie, their lie, his political masters, his handlers jumped into the ring to defend what could clearly not be defended by reason. And because the decision not to appeal Chiluba’s acquittal could not be defended legally or by reason, they resorted to arrogance and more and more lies. Mike Mulongoti was the first one to come out saying they decided not to appeal Chiluba’s acquittal because sending him to prison would have been costly.

Mchenga was exposed; although he claimed to have made the decision not to appeal, his political masters, the real or principal decision makers in this matter became increasingly careless and arrogant. George Kunda was even more fanatical in the position he took – he declared that if the Director of Public Prosecutions had appealed, it would have been professional misconduct on his part.

The question still remains: who was making the decision? George or Mchenga? If appealing when he was not supposed to appeal was a misconduct, then shouldn’t it follow that not appealing when he should is equally a professional misconduct? Following George’s logic, one should see why the Law Association of Zambia has a point in calling for Mchenga ‘s resignation on grounds of professional misconduct. It has been established beyond any reasonable doubt that Mchenga did not appeal when he was supposed to appeal because his political masters had stopped him from doing so.

And the reasons Mchenga gave for withdrawing the appeal have failed to hold, have been proved to be a big lie, deceit. What Mchenga did was actually a fraud to the people of Zambia. Given that position, it is easy to understand what has driven the Law Association of Zambia to take the position it has taken on this matter and against Mchenga. But this is not all. There is more to it.

If anyone was still in doubt as to who made the decision not to appeal, Rupiah made it very clear. Rupiah told the nation that he had decided not to appeal because the lawyers who prosecuted Chiluba for US $500,000 were paid US $13 million.

According to this lie, Rupiah made the decision not to appeal so that he could save money. Rupiah claimed that appealing the matter would cost the Zambian taxpayer another US $13 million and he was not in a position to appeal and enrich those greedy lawyers. This is what Rupiah told the nation and this matter was reported in more than one edition of the state-owned and government controlled Zambia Daily Mail, among other news media outlets in our country.

And to date there has been no repudiation of this statement by Rupiah himself or even Mchenga. It is difficult for them to do so because it was made publicly, with a lot of emphasis and a long explanation. And this was not the first and the last time Rupiah tried to explain and defend the decision not to appeal Chiluba’s acquittal.

Before this, Rupiah had made statements to the effect that he was very happy that Chiluba was acquitted because it was going to be very difficult for him to find an appropriate prison for a former president. Rupiah knows very well that under our laws, there is no special prison for anybody because all are equal before the law. And probably it was for this reason that Chiluba himself, when he was president of the Republic, incarcerated a former president, Dr Kenneth Kaunda, at Mukobeko Prison.

It shouldn’t be forgotten as well that during the Kasama Central parliamentary by-election, Rupiah told a closed-door meeting of civil servants and other public workers that he was surprised they were not supporting Chiluba’s acquittal when they were supposed to be celebrating it because he hailed from their region, that is, he was their tribesman.

And recently, Rupiah told some people at some funeral in Lusaka that appealing Chiluba’s acquittal will be tantamount to putting him back in a lion’s mouth; he won’t survive. There are a lot of other things Rupiah has said on this issue in privacy and to many people.

Clearly, Rupiah stopped the appeal against Chiluba’s acquittal for petty personal political considerations. But what is Mchenga’s consideration in this matter?

Mchenga has been George’s bootlicker and today, he is paying a price for that bootlicking. The nation cannot have a Director of Public Prosecutions who takes instructions from a person like George whose dishonest schemes and machinations are now well-known. George has been the puppeteer while Mchenga has been a willing puppet in their scheme to hoodwink the Zambian public and deny them justice. In Mchenga and George, Rupiah has found two perfect minions who are going to carry out his evil scheme without asking any questions.

When Mchenga says there are no grounds of appeal in the Chiluba case, he simply means ‘my bosses have not allowed me to do this’. This is what he did in the Kashiwa Bulaya nolle prosequi.

This spineless excuse for a lawyer, sneaked into court and withdrew the case against Bulaya on the instructions of George. When the matter became public, George and Mchenga even convinced Levy Mwanawasa to tell the nation that the reason they had withdrawn the case was because it was a weak case and the state was going to lose because there was no adequate evidence to secure a conviction of Bulaya.

Again, this lie was exposed. Shamelessly, the same Mchenga allowed the matter to go back to court. And there is no need to guess who told Mchenga to take the matter back to court. It is clear that after Levy realised that the Zambian people were resolved to see justice in this matter, he directed Mchenga to take the matter back to court. And since Mchenga acts on political orders, he took back the matter to court.
What happened after this case that they claimed was weak was taken back to court is well known.
Bulaya was convicted. He appealed to the High Court and lost. Bulaya’s friends have now resorted to keeping him at the University Teaching Hospital to avoid jail. But Bulaya is a convict, although George and Mchenga claimed there was no evidence. These are the kinds of people we are dealing with.

It is clear that these people cannot work with a professional Director of Public Prosecutions. What Mchenga did over the Bulaya case, a professional Director of Public Prosecutions had refused to do. And for that reason, George made sure that Caroline Sokoni was never confirmed as Director of Public Prosecutions. George preferred a spineless unprofessional wimp – Mchenga.

George is trying to run the criminal justice system as an extension to their political games. Only the people they hate or have no use for should be prosecuted. In their small minds, they cheated themselves that Chiluba was a political asset and went out of their way to yet again compromise the important office of Director of Public Prosecutions.

Mchenga has disgraced this very important office of our people, of our nation, of our state and the Law Association of Zambia is correct to call for his resignation. And Mchenga must go. If he resists, he will be hunted out of that office he has so much disgraced. Those who betray our people should not expect to be paid by our people to continue their betrayal.

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