By Dickson Jere
In 2003, I was among those appointed by President Levy Patrick Mwanawasa as Commissioner on the Constitution Review Commission (CRC) to help draft the country’s new constitution. As a team, we traversed the entire country to get views of Zambians on what they wanted to be included in the Supreme law. One of the thorny contributions were on the need to re-adjust the use of nolle prosequi in criminal cases. Some petitioners who appeared before us called for the removal of the provisions that grants the Director of Public Prosecution (DPP) powers to enter the now infamous nolle prosequi. The term nolle prosequi is Latin which loosely translates to mean “will not prosecute”. It is often used to temporarily stop prosecution due to lack of adequate evidence or indeed when the prosecution wants to re-assign the charges.
You see, being released on a nolle does not guarantee your freedom. The charges still hang on your head and you can still be arrested on the same charges years later. In short, you are not acquitted and therefore cannot even sue for unlawful arrest and detention or malicious prosecution. The case does not end with a nolle prosequi.
And so Zambians generally felt that this aspect of the law should be changed so that once a nolle prosequi is entered, at least a period should be set on which the DPP should either bring back the case to Court or charges dropped completely. This will enable people have a free mind that the charges against them were over unlike now where you live with the charges on your head! Others argued that the DPP should be compelled to give reasons for entering nolle prosequi or that the Courts should be vested with powers to either accept or refuse the entry of nolle prosequi. Currently, the Courts have no powers to refuse or question the DPP on nolle prosequi.
When compiling our Report as CRC commissioners, we engaged in a heated day-long debate on the issue of nolle prosequi . It was an emotional debate and the Commission chairman, Wila Mung’omba, broke down when he made his contribution. The subject matter was hearty to him. His young brother, Dean Namulya Mung’omba, was just recovering from a long-detention on treason charges when he was arrested in connection with the 1997 foiled military coup of Captain Solo. By the way, I was implicated in that coup and briefly detained too! Dean, leader of the Zambia Democratic Congress (ZADECO) was incarcerated on the trump up charges but when time for trial came, the DPP entered a nolle prosequi. Dean, my close associate, was to suffer the effects of prison and eventually died. In fact he died while the CRC commissioners were camped in Siavonga debating, among other issues, the nolle prosequi. So his brother was right to push for either the removal of the nolle prosequi on our laws or indeed limit its period of it being in force.
The debate of the use or is it abuse of nolle prosequi was rekindled not too long ago. The DPP Mutembo Nchito (as he then was) was arrested, charged and arraigned before the Subordinate Courts but decided to use the powers vested in him to enter a nolle prosequi for himself! At that time, I called it a “legal selfie”. Was he right to do that? Questions were raised and different interpretations thrown around.
And so, after thorough deliberations, we agreed as a commission that after 6 months, the DPP must either bring back the case to Court or acquit the accused. But then the DPP counter proposed. Nolle prosequi was a necessary evil. It was needed for effective prosecution of crimes in certain cases. In complicated cases the evidence may only emerge several years after committing an offense! So, the DPP argued, it should be maintained on our laws. And it was.
Food for thought for our future legal reforms.
Well put Dickson
Your name though- oh dear. ouch..
Good literature for the less informed
More of this sort of analysis LT
Thanks
BB2014,2016
Well put – Thanks
BB2014,2016
Lillian didn’t use nolle prosequi, she ABANDONED the case in public interest. Ba Jack Mwiimbu is a Nobel man, he doesn’t lie. He explained clearly that case is closed.
out dated opinion bwana counsel the DPP can enter a nolle using article 31 or article 180 of the new amended constitution. your opinion was supposed to hing on the two parts of the current Constitution or maybe there will part2 of your analysis. we will wait
@ Nostradamus, Ba Jack Mwiimbu is just interested in legal fees that he’s been reaping from HH…
@Mushota what do you mean well put? Do you have a locus standing in the matter? Please give us your PhD understanding. Thank you
Big Jack Is 100% right.
Jack let you down on the petition, he is exciting your small donkey brains with the latest nonsense about the nolle prosequi. Meanwhile, while you donkeys get excited and go into your frenzies, Jack will be sending the invoices to hh-NOT A BAD DEAL FOR HIM, HEY???
Nolle or no nolle, facts are facts. They never die. The state had its feet bent backwards in this treason case. It was a prefab lacking a foundation and ideal body structure. The state must be the more grateful the matter has been put to rest, the state itself spared the embarrassment.
Our friends in the upnd believes that ichilema was released on a special nolle which does not require him to be arrested again, according to jack
The DPP realized that even if pf investigator were given 100 years they will still not be able to gather any evidence, best scenario, LET GO AND LET MY PEOPLE GO…..
. PF(Pharoah Family).
NOLLE OR NOT NOLLE,it was planned. Someone begged on behalf of someone. Kwasila
on this one..she ddropped all charges..meaning our HH is freeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee..Thanks alot for the enlightening ba Dick..
Which planet do you live on??????????
@ Zambian Citizen, which tree did you fall out of?
Declining to prosecute because of lack of evidence (Nolle) and closing the case as it is not in the PUBLIC INTEREST are two different things.
Dickson, mega thanks for such a qualitative post. But it has ended hanging. Please complete the write up by delving into the position with regards the current constitution viz-a-vizvis the HH case.
Jack Mwiimbu chose to mislead the usually unsuspecting UPND cadres that no Nolle was entered in the case of one Hichilema. In his own judgement, Judge Chanda clearly told HH he was free to go home but could still be rearrested. One just wonders whether Mwiimbu was in court or not. As Jere has put it, the Nolle remains hanging over one Hichilema’s head. The DPP must either bring back the case to court after six months in the event that there is new evidence, the more reason it still remains in force as a necessary evil, or acquit Hichilema. That is my objective understanding of what transpired in court yesterday and what Dickson Jere has written.
yamu nyokola NJALA DICK ZULU OFUNA NCHITO , FOR NOW NO VACANCY AMOS CHANDA IS DOING A VERY EXCELLENT JOB
RIP Dean Mungomba
Imwe ba UPNDonkeys, read the law and start advising you kachema accordingly, the state entered a nolle prosequi, and if you understand what it implies, you better know that the charges are still on the Under Five plus 5 others. So, play it safe otherwise there will be no Commonwealth intervention next time around. Be forewarned and start respecting the Government of President Lungu NOW!!!!!
Malinso
You retard it is not about whether he can be re-arrested or not.It is about whether there is evidence and there is clearly nothin g.This cant be changed.Atraffic offence is a traffic offence and for those of you who are cheering on Kampyongo and Kanganja you are actually hanging them.What they have committed is a grave crime which is hanging over them as soon as they loose power you would see how they will be brought down to earth.With this in mind how can one honestly be encouraging them to repeat the same mistake.And by now you may have noticed how the president has consistently kept himself out of this mess by insisting that he does not control the police whilst Kampyongo started boasting a long time ago that HH will be charged with treason.
What is Dickson Jere trying to say or find out?We thought he is learned to interprete the mean in full but he is explaining the debates they have had years back…nolle prosquei literally means NOT TO PROSECUTE as a result of lack/insufficient evidence kwasila
In fact Mutembo never just entered Nolle for himself but first took over the matter as the DPP then entered the nolle and later he was removed through a tribunal. The same is happening today, the DPP is taking over cases that initiated privately and later enter nolle- is it fair? It is better in my view to investigate the case even for years than make quick arrest only to enter nolle.
Whether nolle or not someone begged for some people to be released lest they rote in jail which actually befitted them. I am already disappointed that some f.ools have already started bragging that they are ten times f.oolish! What a disaster!
Imwe Dickson ni Lawyer, so he knows what he is talking about. However it is always interesting that his articles usually bring in irrelevancies like Mwanawasa appointing him to the Constitutional review Commission. Was that necessary to the article? Surely this article is about the Nolle. In my view Dickson has a complex issue; he always wants to remind people where he has been. I am surprised in this article he did not mention that he was RB’s Press Secretary or that he was researching an article for his masters degree program etc etc. Osekeshana mweo Dickson mwe! But not to take everything from this article, I think it was a good article. Atleast I now know what Nolle is all about. So it is clear HH should be careful with his outbursts.
Lungu and the police IG had no case, they would have been embarrassed and the international media were going to have a field day with lungus budding dictator ship.
Mmmmm.
The state has no evidence against HH. This Nolle thing is a blessing in disguise for them. If they had a shred of proof that that traffic offence was treasonable they would have prosecuted him and kept him in jail. That’s the objective, isn’t it? To keep their greatest enemy behind bars so that he stops talking about the petition. HH should not be afraid of being rearrested on the same charge, they will never be able to prove it.