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Friday, November 25, 2022

DPP dilemmas: Either she resigns or enters Nolles in all DEC and ACC cases

Columns DPP dilemmas: Either she resigns or enters Nolles in all DEC and...

By Peter Sinkamba

The DIrector of Public Prosecution (DPP) Lillian Fulata Shawa Siyuni SC is in an unprecedented dilemma with only two options where either she resigns or she enters nolles in all cases before her brought by either the Drug Enforcement Commission (DEC) or the Anti-Corruption Commission, where arrests were made without receiving instructions to arrest from her.

This is so because the letter that is in the public domain to the DEC Commissioner-General Mary Chirwa, which Ms Siyuni has not disclaimed, rebukes Ms Chirwa for carrying out an arrest of former KCM Provisional Liquidator Milingo Lungu without instructions to arrest from her. The Constitutional implication of this directive from the DPP is that no person should be arrested and docket brought before her for the prosecution of corruption and money laundering matters, if she has not given arrest instructions on those matters.

If she prosecutes other matters where no arrest instructions were issued by her, then she will not only be biased but also discriminatory, and thereby unconstitutional and illegal, pursuant to Article 23(2) of the Constitution of Zambia Amendment 1996 and Article 1(2) of the Constitution of Zambia Amendment 2016.

Although Article 180(7) of the Constitution of Zambia Amendment 2016 provides that the DPP shall not be subject to the direction or control of a person or an authority in the performance of the functions of that office, however, this privilege is not absolute. There are four limitations enshrined in this Article. First, the DPP should not exercise powers in a manner that is inimical to the public interest. Second, the DPP should not undermine the administration of justice. Third, the DPP should not undermine the integrity of the judicial system. And fourth, the DPP should prevent and avoid abuse of the legal process.

Article 180(4) of the Constitution of Zambia Amendment 2016, which provides for powers of the DPP, does not give powers to DPP to issue arrest instructions to any law enforcement officer. Therefore, the letter by the DPP to the DEC Director-General is not only inimical to the public interest but also undermines the administration of justice, and integrity of the judicial system, and is an abuse of the legal process.

Essentially, natural justice requires that a person receives a fair and unbiased hearing before a decision is made that will negatively affect them. The three main requirements of natural justice, that must be met in every case are adequate notice, fair hearing and no bias.

Therefore, based on the three main requirements of natural justice, there is a second dilemma that the DPP is confronted with concerning the Milingo case and all other cases from DEC. Now that the DEC has re-arrested Milingo, and meanwhile, there is a direct confrontation between the DPP and the DEC Director-General, considering the confrontation in the hindsight, will the DPP prosecute the Milingo case without bias? Or indeed, will the DPP prosecute all other cases from the DEC without bias?

Articles 180(2) and 182(3) of the Constitution of Zambia Amendment 2016, provided that the conditions that apply to a judge apply also to the DPP. Implicitly, by Article 266 of the Constitution of Zambia 2016, the DPP is a judicial authority, and thereby amenable to the Judicial Code of Act of Zambia.

Thus, the third dilemma confronting the DPP concerns law requirement for judges to recuse themselves if their impartiality might reasonably be questioned.

Section 4 (1) of the Judicial Code of Conduct requires that a judge or other judicial officer shall not discriminate in the performance of their duties of that office. They are required to perform their duties without bias or prejudice and should not, in the performance of adjudicative duties, by word or conduct, manifest bias, discrimination or prejudice. They should also not permit any member of staff or any other person subject to that officer’s direction and control to discriminate or manifest bias or prejudice.

Section 6(2) of the said Act disqualifies a judge of judicial to adjudicate or take part in any consideration or discussion of any proceedings in which the officer’s impartiality might reasonably be questioned on the grounds that the officer has a personal bias or prejudice concerning a party. Thus, where such impartiality may rise, the judge or judicial officer must recuse himself or herself, and the matter ought to be allocated to another judge or other person for adjudication.

The dilemma here is that there is only one DPP. If the DPP is conflicted, that is it! There no other alternative person authorized by the Constitution to perform functions of the DPP. So, what happens to the Milingo case and all other cases brought to her by DEC where she has not issued any arrest instructions, and in view of the direct confrontation between the DPP and DEC DG? Thus, will the DPP proceed to prosecute the cases even if she is conflicted in the manner described?

If she forces matters and proceeds to prosecute the Milingo case and all other DEC cases, two things are likely to happen: first, pursuant to Section4 (2) of the Judicial Code of Conduct, the magistrate who will handle the case may be dragged to the Judicial Complaints Commission for allowing the DPP to take part in proceedings before that magistrate, where the DPP has manifested, by word or conduct, bias, discrimination or prejudice contrary to the Constitution and the Judicial Code of Conduct.

Secondly, if the President is serious enough to defend the Constitution, he may invoke Article 181 to appoint another person to perform functions of the DPP in the Milingo case and all cases brought by the DEC because under the current circumstances, the DPP is unable to perform the functions of office with integrity and without bias or prejudice.

In my view, instead of complicating her life and future as explained above, I think it more honourable for her to voluntarily resign.

The Author is is President of the Green Party

24 COMMENTS

  1. Too many contradictions in this country. The DPP entered a nolle in the Mukuni and others case, nobody complained. The accused are awarded for alleged false imprisonment nobody complains. A wrong is only noticed if it doesn’t favour the ruling party… not just Upnd but also PF or MMD (remember how Levy Mwanawasa intimidated that poor judge into faking malaria). I won’t include Unip because that was another planet.

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  2. I miss the days of Roger Chongwe he would have written an elaborate article about this debacle in The Post…today’s lawyers can not be bothered to explain to the people instead we have the likes of Peter Sinkamba stepping up filling this void. Lawyers where are you?

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  3. Deja Vu – The only contradictions here is you ..the fact that you brought up the Mukuni case says alot about you when it was a highly political case or should I say “a fix them” case. Milongo Lungu is a money laundering/ corruption case…money always leaves a trail ..you simply dont enter nolles in such matters or question re-arrest.

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  4. Dejavu I love your objective thinking. Of course mukuni and other upnd t.o.n.g.as in the ruling party are treated more favourably in the trbal govt of upnd. Your comment will anger alot of the tribal f00Is I refer to e.g. one moonyellow above has already commented

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  5. Tarino Orange well said, the problem with people in our country is that they like talking about things they don’t fully understand. The DPP made an error she should have been professional with her verdict. The problem is that the fake rich guys of Zambia manage to buy their freedom and a poor guy that steals snacks in shoprite saves jail time. Its High time some people started getting arrested and jailed for some time in jail.

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  6. Kaizar or whatever your name is, I think it is wrong to judge and label people because of their ethnic grouping, your tribe or language is not special, we are all human beings besides tribe and the nonsense you always comment on, your comments are full of hate and nothing good comes out of them. How do you show love to your family if you hate people based on their tribe, this is the reason we lost elections as PF because of people like you who are so arrogant with stolen wealth acquired by crooked means…Honestly you disgust a lot of people. Keep peace at all times If God does Judge people your fate is dire.

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  7. #3 Tarino Orange… sometimes it helps to read between the lines. As for the i***** who thinks I don’t understand, let him live in his delusional paradise. I am fully aware of the limitations of the office of DPP office. What I am alluding to here is the insincerity in people. If you are honest you will have noticed that at each change of government we have been faced with the same problem. But because you are too educated you see different.

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  8. This is a great article by Mr Peter Sinkamba . He has thoroughly dissected the matter surrounding the embattled DPP.
    Lillian Siyuni SC can not continue holding the office of the DPP, She clearly overstepped her boundaries.
    However, the so called “high profile” lawyers of Makebi Zulu and Milingo Lungu should be ashamed of themselves for trying to hide behind this women. If Milingo Lungu feels he is innocent , then let him use his legal expertise and defend himself in court.
    They are on the verge of ruining this womans career. This is happening at time when Zambia and Africa in general wants to see more women of excellence.

  9. SO-CALLED ‘INDEPENDENCE OF OTHER ARMS OF GOVT……. ” IS JUST A SLOGAN.
    WHEN IN POWER IT IS ALL ABOUT POWER!

  10. Actually Zambia has a fairly long history of ejecting from office seemingly constitutionally-protected officers such as judges and directors of public prosecution. Remember how Annel Silungwe ceased to be chief justice of Zambia in the early 1990s? Silungwe sat on a Supreme Court panel of judges that found former president Kaunda’s son not guilty of murder. Kaunda’s son had been convicted by judge Claver Musumali in the High Court. The not-guilty verdict was publicly not accepted by the public and the Chiluba MMD government. The victim Taketh Mwanza was shot in the back. Silungwe was forced to resign.

  11. Remember also how Matthew Ngulube ceazed to be chief justice of Zambia? Evidence had emerged that he had secretly received questionable payments from a secret bank account of the Republic of Zambia controlled only by the President through the head of the intelligence service. And that happened to have been a President who had court cases which the chief justice had presided over. Public pressure on him to resign was mounted and he had no choice but to yield. Will it happen to Lillian Siyunyi also? I don’t know.

  12. Good one Peter, long time man, where have you been yo.
    If Lilian resign, she will be arrested. It is a dilemma!!

  13. READ BETWEEN THE LINES IS A COMMON PHRASE IN A FULLY CONVERSANT LITERATE SOCEITY
    UNFORTUNATELY IT DOESNT APPLY HERE IN ZAMBIA
    WE STILL VERY BASIC

  14. Muningah – Dont waste your sentences or a word on the UK based troll/ Impostor…its purpose here is to derail.

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  15. Muningah I am sorry for telling the truth. Meanwhile you never pick up on step asides tribal sentiments against non tongas so I guess that makes you a tribally biased person. Until then i will continue posting the truth here.

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  16. #11#12 Nemwine. That’s what I was referring to. Thanks for making it simple. People should remember what happened to Nchenga, Mukelebai, Mutembo and others.

  17. #Muningah – Mbuzi meeeeee is an illegitimate (adopted), uncultured Imposter (see postings), badly natured by thieving PF regime, – ignore him as everyone does on this plat form.

  18. It’s important for those that make extreme calls on others such as the resignation of the DPP to critically examine the basis for their calls. It’s unfair for Peter to call on the DPP to resign based on his flawed analysis. Siyuni wasn’t talking about matters that were never before her office. Her letter was specific to Milingo Lungu’s case that was already dealt with by her office. I advise Peter Sinkamba to stop smoking chamba

  19. Ayatollah @20 above, yours is fair comment on what Peter Sinkamba has written. There’s a legal provision that stipulates that after a nolle prosequi, a suspect may be re-arrested on the same charges only with the approval of the DPP. But the DEC has arrested Milingo Lungu on fresh evidence of acquiring a piece of estate with allegedly stolen money. It’s just that he’s the same person whose prosecution the DPP has entered a nolle on earlier charges.

  20. #21 Nemwine, thanks for the compliment but I wish to differ with your point that Milingo has been arrested on a different charge. It was on the same charges on which the nolle was entered. This was what prompted his lawyers to alert the DPP. I’m certain that before Sakwiba Sikota, SC alerted the DPP he had cite of the docket. It’s on that basis that I have cautioned Peter. If had that understanding I doubt if he could have gone to the extent of writing such a lengthy but wrong article

  21. Why is KZ allowed to be tribal and insulting on this platform? Yet comments with no insults can not be published here.

  22. Peter Sinkamba has missed a point. The DEC re-arrested Milingo after DPP entered nolle prosequi without providing fresh evidence. How did Mary Chirwa expect Lillian Siyuni to proceed without fresh evidence? The New Down Govt is also being hypocritical and playing double standards here, not too long ago the DPP entered the nolle for Chief Mukuni’s wife and others and if that’s not enough unprecedented huge compensation was awarded to the victims. Did anyone complain about the nolle prosequi? None!! The only thing that raised our eyebrows was the compensation. There’s too much hypocrisy in the current govt, and they expect to receive kudos from us? KULIBE!!

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