IN a now known fashion, the story first broke in the private media with incredible allegations that the Director of Public Prosecutions Mukelebai Mukelebai met Xavier Chungu, former Director General of the ZSIS for eight hours at The Royal Livingstone during the Christmas Holidays of 2003.
This was at the height of corruption allegations against former president Frederick Chiluba and former intelligence chief Xavier Chungu.
The allegations stated that Mukelebai was in the company of a ‘Lebanese couple’. The private media followed this incredible story with their usual sources from civil society and politicians baying for Mukelebai’s blood.
In their usual style of attack, the private media put in motion ‘the-isolate’ methods. Mukelebai was cornered and stood no chance! On January 2, 2004 president Mwanawasa summoned the DPP to his office.
Dr Mwanawasa laid bare the ‘serious allegations’ against the DPP that he was colluding, abetting and aiding ‘plunderers’ to ‘escape’ the consequences and temerity of their crimes.
Mwanawasa’s evidence? A non-descript fellow who was a porter at one of the hotels in Livingstone.
The president also stated that other than the alleged eight-hour meeting between Mukelebai and Chungu, there were other ‘‘valid’’ and strong complaints against Mukelebai suggesting that he was “deliberately’’ mishandling ‘plunder cases’.
The president suggested that owing to his recent bereavement where he had lost his wife, Mukelebai should go on a sabbatical leave for 45 days. He suggested that upon his return from leave, Mukelebai would be awarded a scholarship to go and study in India.
Mukelebai was ordered never to reclaim his office. Mwanawasa further suggested that he would, upon his eventual return, appoint Mukelebai as a High Court Judge.
The president stated that Mukelebai would surrender the duties of his office, especially those cases relating to “the plunder of national resources’’, to private prosecutors.
After this meeting, Mukelebai recognised the extent of the vicious and strong forces arraigned against him. He clearly felt that the forces had converged using the false allegations from Livingstone as an excuse to hound him out of office.
He quickly sought legal counsel from experienced lawyer Vincent Malambo SC.
On January 5, 2004, Mukelebai wrote to President Mwanawasa informing him that as discussed, he will proceed to go on leave and enclosed there-in his leave forms. He copied the letter to Secretary to Cabinet and permanent secretary, Legal Affairs.
Mr Malambo advised that the action was unnecessary and illegal as the DPP was yielding to unreasonable political pressure from Mwanawasa. Malambo advised that the pressure must be dismissed with contempt as the DPP had security of tenure, anchored in the Constitution. He advised that a Republican president had no such powers as to send a DPP on forced leave, let alone hound the DPP out of office.
The trouble was that Mukelebai had sent copies of that letter, to the Secretary to Cabinet and to the permanent secretary – Legal Affairs.
Malambo advised him to ignore the letters of leave, as they were sent in error. The letter to Mwanawasa consequently, was never sent.
As is customary of George Kunda, who is a consistent stickler of the law, he issued a statement on January 7, 2004 as Minister of Legal Affairs and Attorney General, emphasising that the DPP would not proceed to go on leave as this was ‘“imaginary and created by a certain newspaper’’.
Mr Kunda said the DPP’s office was a constitutional office and he cannot be forced to go on leave nor be removed from office without due process of the law.
Clearly the battle to dismiss Mukelebai or force him out of the way was being lost.
The empire summoned its last weapon of war – Mwanawasa.
On January 8, president Mwanawasa held a Press conference revealing to the nation that he had a ‘secret agreement’ with the DPP agreed upon on January 2, 2004. He insisted that the DPP promised to go on sabbatical leave and upon his return go on a scholarship to India.
He displayed a letter written by the DPP to him officially applying to go on leave. Mukelebai never delivered the original but Mwanawasa displayed a copy from the Secretary to Cabinet.
A woman representing State Advocates in the DPP’s office emerged and issued a strong statement on January 11, 2004. She charged that the letter of leave displayed at State House by Mwanawasa was a forgery and challenged those relying on such a letter to show the original.
She said the integrity, courage, professionalism and intellect of the DPP was laudable and that State Advocates would not allow perversion of professionals by anyone calling Mukelebai a liar (including Mwanawasa) simply because he asserted the authority and independence of his office as provided for in the Constitution.
Malambo also issued a statement defending his client and quoting Article 56 which states that: The DPP shall not be subject to the direction or control of any other person or authority (including the Republican president).
Malambo extolled the qualities expected of the DPP by stating that in the person of the DPP, the public are entitled to expect integrity, professionalism and competence. The public are entitled to expect independence, impartiality, objectivity and dispassionate decision-making.
Malambo insisted Mukelebai was the legitimate holder of that office and no one would remove him without cause or without following the due process of the law as demanded by some sections of the media.
Clearly, the battle lines were drawn.
In a show of unreasonable force, president Mwanawasa suspended Mukelebai on January 14, 2004. He constituted a tribunal to probe and remove the DPP from his office for misbehaviour, misconduct, incompetence and inability to perform duties from his office.
But what did Mukelebai do to justify his removal from office?
When the tribunal was constituted and began to hear witnesses who included the Livingstone porter, the porter stated that he saw Xavier Chungu and Mukelebai Mukelebai at the reception on January 1,2004 a metre away for a few minutes.
On cross examination, he revealed that his travel to Lusaka was facilitated by State House, which booked him at a lodge. The porter said he was given a K200,000 as pocket money.
The tribunal heard the ‘Lebanese’ that are alleged to have been with Xavier Chungu turned out to be a well known couple from a travel agency.
The tribunal established that the eight-hour meeting between Mukelebai and Chungu never took place.
Mukelebai was appointed DPP in November 1998.
To be appointed DPP in 1998, recommendations came from constitutional lawyer and international law draftsperson Eva Jhala and former Solicitor General and former Vice- President, Levy Patrick Mwanawasa SC.
The Taskforce on Corruption
In 2002, following the strong and complex corruption revelations against former president Frederick Chiluba and his former officials, Mukelebai set up a Taskforce which he initially chaired, to coordinate and conduct the investigations and prosecution of cases of plunder of national resources.
This decision was to haunt him. A clique of outsiders used this Taskforce a body to profit from, used to settle scores, bankrupt business rivals, and vanquish political opponents. This clique also strengthened itself in a manner that placed them as a hegemony that determines the future leadership of Zambia.
The corruption cases genesis
Earlier, a private lawyer had managed to get the Zamtrop account. A few statements of the document were stolen by a junior officer from the Intelligence and given to a Lusaka business executive who, passed the document to his fellow party member in the FDD. The rest is as they say, history.
On July 16, 2002 Parliament lifted Chiluba’s immunity paving way for the former president to face criminal prosecution.
Even when private prosectors were part of the Taskforce, their influence was limited as the powers to prosecute the cases were held by Mukelebai.
Then Attorney General Kunda contended that it would be illegal to appoint private prosecutors with prosecutorial powers as the Constitution and subsequent subsidiary legislation, vests such powers in the Zambia Police (ZP), Drug Enforcement Commission (DEC), Anti-Corruption Commission (ACC) and the Zambia Security Intelligence Services.
This fear was indicated by all security wings that giving such powers would be illegal but also inimical to the interest of the State.
When Mwanawasa lifted Chiluba’s immunity, Mukelebai had put together a unit comprising members from all investigations wings to investigate and prosecute the cases. Mukelebai was also avoiding duplication of work and cases crossing.
On May 8 2003, Mwanawasa wrote a strong letter to Kunda admonishing him not to interfere with the work of the Taskforce. He reminded Kunda to leave criminal prosecutions to the DPP as stipulated by the law.
Similarly when Mukelebai directed that Aaron Chungu and Faustin Kabwe be turned as witnesses against Frederick Chiluba, Stella Chibanda, Bede Mpande, Xavier Chungu and Attan Shansonga in his letter dated September 3 2003, the Taskforce refused to heed the directives .
A pattern had emerged where the DPP’s directives, instructions and advice were ignored or disobeyed.
When former President, Frederick Chiluba requested for Government authority to travel to the United Kingdom for his medicals at the height of the allegations, Mukelebai approved the trip as Chairperson of the Taskforce on Corruption. He instituted measures that would guarantee Chiluba’s return.
Chiluba’s request to travel for his scheduled medicals was quickly leaked to the private media and alarm bells rung depicting him as a potential fugitive of the law.
How could Chiluba escape to the UK, the very country that was funding and orchestrating his arrest and prosecution?
As the dismal work put up by the Taskforce came to conclusion, courts began to acquit or the DPP discontinued the cases through a nolle prosequi in favour of plunderers. The cases began to collapse like a pack of cards.
The country was in a protest uproar and the public embarrassment caused to the Taskforce, was obvious.
The DPP took drastic measures to restore integrity in the investigations and prosecution of these cases.
He wrote a letter to the Taskforce where he demanded that no case should be taken to court without his approval nor consent as enshrined in Article 56 (3)(a). He also directed that he needed to veto the cases before they were taken to court. He also attempted to reclaim his stolen powers by stating that: Kindly be advised that it is only the DPP’s office that can authorise a person outside the civil service to conduct criminal prosecution on his behalf and on behalf of the State.
He directed other prosecutors from other law firms be sought to join the public prosecutors.
Mukelebai was deemed a stumbling block by powers that be and Chiluba and “his tandem of thieves’’ would never go to prison. Mukelebai had to go and the powers of prosecution had to be exercised to the exclusion of the DPP.
Mukelebai was being blamed for the failure of the cases.
Mukelebai reminded the Taskforce that the Constitution granted him exclusive powers to conduct criminal prosecutions and consequently directed that all pending cases be submitted to his office.
Mukelebai had raised the particular unsuitability of private prosecutors in these cases.
It is soon after this, that stunning lies, utter falsities and fabrications were made against Mukelebai. Mukelebai was later removed as DPP despite the tribunal clearing him of all allegations.
The Taskforce basked in false glory for eight years destroying institutions of the Judiciary, offices of Attorney General, the DPP and the presidency.
And the DPP, Mukelebai Mukelebai was the biggest victim losing his job and later his life in mysterious circumstances.
[Times of Zambia]