DIRECTOR of Public Prosecutions (DPP) Mutembo Nchito must not continue abusing his authority of office but should start acting above board and enter a nolle prosequi in respect of Daily Nation proprietor Richard Sakala and his co-accused in the same manner he has done with UPND leader Hakainde Hichilema, Lusaka lawyer Kelvin Bwalya Fube has advised.
Mr Fube, of KBF Advocates, said Mr Sakala, his production editor Simon Mwanza and Foundation for Democratic Process (FODEP) executive director MacDonald Chipenzi, should be the first citizens to benefit from Lusaka High Court Judge-in-Charge Isaac Chali’s ruling to invalidate and expunge Section 67 of the Penal Code because it was inconsistent with Article 20 of the Constitution.
Mr Fube said the DPP should discontinue Mr Sakala’s case if he was to be seen to be above board and treating all cases the same because both Mr Sakala and his co-accused and Mr Hichilema were arrested and charged under the same law that had since been declared invalid by the High Court.
He advised that if the DPP was not going to discontinue Mr Sakala’s case for which the UPND leader had been reprieved, the Daily Nation proprietor had the right to write to Mr Nchito to challenge his decision to continue prosecuting him on the basis that the DPP had become deeply conflicted.
He said although the DPP had powers to discontinue cases using his discretion, he should not use his office to persecute his perceived opponents.
“It is my considered view and opinion that the first beneficiaries of High Court Judge Isaac Chali’s ruling to invalidate and expunge Section 67 from the statutes are supposed to be Mr Sakala, Mr Mwanza and Mr Chipenzi who had challenged that archaic law in the High Court. Mr Hichilema has benefited from Mr Sakala’s efforts to have Section 67 invalidated and the DPP would be buying back a bit of his credibility by entering a nolle prosequi in favour of Mr Sakala and his co-accused. Mr Hichilema and Mr Sakala were arrested under the same law and the only logical action would be to discontinue their cases at the same time,” Mr Fube said.
He said if Mr Nchito believed in being obedient to laws, he should be able to respect the decision by Judge Chali to expunge Section 67 from the statutes as the ruling by precedence had become law.
He stated that Zambians could easily see through Mr Nchito’s decision and unless Mr Sakala was treated in the same manner the UPND leader had been treated, the continued prosecution of the Daily Nation proprietor would be seen to be nothing but persecution.
Mr Fube advised Mr Nchito to avoid falling into the temptation of using the office of the DPP to settle imaginary scores and ensure that he exercised his authority with fairness and without being selective.
He said Mr Nchito had no option but to ensure that he was fair in his actions despite what he was going through adding that Mr Sakala was not responsible for the challenges the DPP was facing in his professional career.
Mr Nchito on Friday decided to continue prosecuting, Richard Sakala on a matter on which he has entered a nolle prosequi in respect of Mr Hichilema.
On Friday, the National Prosecution Authority in a statement said following Lusaka High Court Judge in-Charge Chali’s ruling that Section 67 of the Penal Code lacked consistency with the Constitution and that the law was invalid, it had become necessary to discontinue the proceedings against Mr Hichilema.
Mr Nchito however said after consultation, Attorney General Abraham Mwansa had directed that the ruling of the High Court in which Section 67 was declared invalid and expunged from the statutes in the case of Mr Richard Sakala, MacDonald Chipenzi and Simon Mwanza should be appealed against.