THE Lusaka Magistrate Court has referred to the High Court an application by former President Rupiah Banda where he is asking the Director of Public Prosecution (DPP), Mutembo Nchito to recuse himself from handling his case citing unfairness.
Principal resident Magistrate Obbister Musukwa in his ruling yesterday said from the submission and evidence on record, it was clear that there appeared to be an argument which could not be determined by his Court.
“Since this court has no powers to determine the application by Banda which is bordering on conflicting issues, I now refer the matter to the High Court for determination on whether Mr Mutembo Nchito should recuse himself or not,” Mr Musukwa said.
The Court had also ruled that the indictment be used in its perceived defective form in terms of content which was said to be malicious saying striking it out completely would not be in the interest of justice.
Mr Musukwa ruled that the indictment should remain on record in spite of its defectiveness as he was satisfied that it was duly sworn by a competent person.
He said his Court had no jurisdiction to interpret constitutional issues and that it was only vested in the higher court.
“There appears to be a conflict between the rights of the accused as guaranteed by Article 18 (1) and (11) of the Bill of Rights of the Constitution on one side and the Powers of the DPP to prosecute this matter in line with the provisions of Article 56 on the other,” he said.
This is in a case in which Banda had pleaded not guilty to two counts of corrupt practice and concealing gratification of motor vehicles received from a Chinese Company valued at US$180,000.
Banda complained that he was not comfortable with the DPP handling his case due to the alleged grudge against him arising from the collapse of the Zambian Airways which was being run by Mr Nchito, his brother Nchima and Post Newspaper editor-in-chief Fred M’membe.
Banda also submitted that it was a matter of public policy and a rule of natural justice that one should not be a prosecutor and judge in their own case hence the reason for the DPP to recuse himself claiming the alleged grudge was as a result of the defunct Zambian Airways.
He said a fair hearing in its nature, required equality between the contestants, subject to the supreme principles of among others the presumption of innocence and when one of the contestants had no pre-trial access to the statements taken by police from potential witnesses, the contest could neither be equal or fair.
Banda said this was a clear infringement of the right to fair hearing and the right to be afforded adequate time and facilitated for preparation under the Constitution.
But Mr Nchito had opposed the application on grounds that it was an attempt by the defence to delay proceedings and asked the court not to hear the appeal.
This is embarrassing to PF government, a DPP being scorned by a court? This opportunity for Sata to show us that indeed he is not “friend” of that criminal corrupt Mutembo. Fire him.
As long as Nchito will want to settle personl scores with his opponents using the office of the DPP, then he is bound to fail in his office and will be the worst DPP this country will have had.
Nostradamus, the court is just doing what it is for rather what you are trying to interpret. If there is any burning issues the court will act in an impartial way as it has done previously. Principal resident Magistrate Obbister Musukwa has just done what the law is all about.
Let not always use Sata or DPP as this and that.
WHAT IS UNFOLDING IS TTHIS CASE CAN BE LIKENED TO THE CASE OF HAMAN IN THE BIBLE WHO WANTED TO ‘FIX’ AN INNOCENT MAN CALLED MORDECAI. HE HAD EVEN PREPARED A GUILLOTINE TO CUT OFF HIS HEAD.
BUT GOD INTERVENED VIA DREAM TO THE KING AND THE FINAL RESULT WAS THAT THE GUILLOTINE THAT HAMAN HAD PREPARED FOR CUTTING MORDECAI’S HEAD OFF, WAS THE THE ONE THAT WAS USED TO CUT HAMAN’S HEAD OFF.
THE TRAP THE CARTEL OF MMEMBE, NCHITO AND KABIMBA HAD PREPARED FOR MMD TO FALL IN, ARE FALLING IN THEMSELSEVES. GOD IS JUST.