Earlier, the State entered a nolle prosequi in the matter but this was received with a sharp reaction from the defence team, which argued that the office of the Director of Public Prosecutions (DPP) was attempting to take over the matter without following proper procedures.
M’membe’s lawyer, Ngosa Simachela, submitted before court that if the complainant, Japhet Mulenga, did not wish to prosecute the matter, the court had the power to acquit the accused person.
“We have a reaction to the instructions from the DPP, your honour, the matter was commenced by a way of a complaint under section 90 of the Criminal Procedure Code (CPC).
“We have this matter being a private prosecution, the DPP cannot take over the matter unless he or she advanced specific grounds, no grounds have been added before this court and we find that this action flies in the teeth of judicial authority,” Mrs Simachela said.
In response, State prosecutor Angela Nyirenda said the State did not intend to change the decision made by the DPP.
“We really appreciate the concerns the defence have raised, however, when a matter is brought to court under section 90 of the CPC, the complainant himself can prosecute the matter or hire a private prosecutor, in this case, the complainant informed the court for an adjournment that he wished to seek the audience of the DPP to take over the prosecution,” Ms Nyirenda said.
She said after the perusal, the DPP saw it fit to enter a nolle, stating that procedure was followed.
And delivering the ruling, magistrate Irene Wishimanga said she agreed with the application by the defence team that proper procedure in the case should have been followed by the DPP’s office in order to prosecute the matter.
“The matter was commenced by complaint as read in section 90 of the criminal procedural code and the complainant is Japhet Mulenga, who is required to be before court to prosecute the matter and no other person,” she said.
At this point, Mutinta’s lawyer asked the court to dismiss the charge, saying the complainant was not before court.
Magistrate Wishimanga granted the application to have the charge dismissed pursuant to section 199 of the criminal procedural code.
She, however, urged the State not to be debarred from fresh proceedings in the matter.
In this matter, Mutinta is alleged to have intentionally disrespected the law by tearing a search warrant dated February 15th, 2017.
Our prosecutor’s need refresher courses. It’s was the same story during HH’s trial. The Ministry in charge should look into this. They don’t seem to be conversant with Court procedure
Iam sure they deliberately do that to “lose ” cases.
I don’t even know icho these state prosecutors baitutumbila so, when they can’t even throughly investigate cases, ubu bushilu. Right now they are busy pushing for treason charges against HH yet they don’t even know what to say in court.
And you say the courts are compromised?
Very compromised, immediately the courts saw that these state prosecutors were so incompetent to put a felony and misdemeanor on one charge sheet, they were supposed to dismiss the case immediately for lack of seriousness.
Yes the Courts are compromised when PF Cadre Judges handle the cases. Well known PF judges like the three muskateer judges at Concourt, Chitabo, Simusamba etc have tarnished the Image of our Courts. The CJ has no leadership qualities and hence the Judiciary is in a mess under Irene Mambilima. The fish rots from the Head downwards. Mambilima will leave a terrible legacy in the Judiciary as the worst CJ who has ever served in Zambia since Independence.
But what happened to the accuser Mulenga, is he dead?
The DPP office seems to be conversant in entering nolles in cases where they are not sure how to handle … Probably they are compelled to handle the cases against their duties and conscience.
When you have a good case against a person and heavy publicity is made about the arrest of the suspect, then suddenly you enter a nolle , surely you are not competent. You either love making a circus or you are disgruntled.
The courts , though presided by imperfect men and women, strive to uphold the justice. I totally agree with Her Honour Ireen Washimanga about the nolle in this matter. The history and spirit of a Nolle which is a UK concept was meant to enable that evil committed must be thorough investigated and justice must be fairly executed. The spirit was meant to establish the truth…