Former president Fredrick Chiluba has taken Task Force prosecutor Muntembo Nchito to the Law Association of Zambia over alleged professional misconduct.
In a letter the LAZ dated August 27, 2008, Chiluba through his spokesperson Emmanuel Mwamba argues that Mr. Nchito deliberately misconducted himself by refusing to heed to lawful instructions from the DPP by lodging the notice of aappeal against his acquittal.
Chiluba also accuses Muntembo of leaking information to the Post nespaper.
The letter of complaint is reproduced below in full:
27TH AUGUST 2009
Mr. Stephen Lungu
LAW ASSOCIATION OF ZAMBIA (LAZ)
RE: COMPLAINT AGAINTS MR. MUTEMBO NCHITO OF MESSRS MNB & PATNERS
We wish to bring the following to your attention.
On 17th August 2009, the Lusaka Magistrate Court delivered a judgement in favour of Second President of the Republic of Zambia, Dr. Frederick J.T. Chiluba. This is in a matter where Dr. Chiluba was charged with offences of theft by public servant. He was co-charged with Access Financial Service Limited (AFSL) Directors, Faustin Mwenya Kabwe and Aaron Chungu.
The State was represented by lead counsel Mr. Mutembo Nchito from MNB &Partners.
On Monday August 24th 2009, The Post Newspapers carried a story claiming that the ‘State’ had appealed against this Judgement. The story further published details of a notice of appeal and grounds supporting the appeal.
Further reading of the story stated that MNB appealed against the Judgment on the directives written to them by Task Force on Corruption Chairperson, Mr. Max Nkole.
We promptly undertook to search the details of this Appeal at the Lusaka Magistrate Court and the Lusaka High Court Registries. Our search revealed that there was no such Notice of Appeal and supporting documents filed before the courts.
It has emerged that the letter of instructions written to MNB by Mr. Nkole dated 21st August 2009 was copied to the Director of Public Prosecution (DPP), Mr. Chalwe Mchenga and the Republican President, His Excellency Mr. Rupiah Bwezani Banda.
The DPP responded immediately in his letter also dated August 21st 2009. He refused to give consent to the appeal and instead advised Mr. Nkole and the prosecutor (MNB) to furnish him with a copy of the Judgement and intended grounds of the appeal. Mr. Mchenga advised that he would then make a decision whether an appeal was relevant or necessary.
In the afternoon of Monday August 24th 2009, we were informed that a notice of appeal had finally been filed by MNB agents in the criminal registry of the Lusaka Magistrate Court.
COMPLAINT AGAINTS MISCONDUCT
It is clear that Mr. Mutembo Nchito is an agent of the DPP. It is an indisputable fact that Mr. Nchito conducted this prosecution on behalf of the DPP.
We are therefore surprised that an agent in Mr. Nchito has blatantly usurped the constitutional powers of the DPP and proceeded to appeal in the case even in the face of clear cautionary instructions from the DPP.
We are also surprised that an appeal could be lodged on the basis of instructions from Mr. Nkole as in our view, those instructions are illegal.
Mr. Nchito has repeatedly presented himself in court that he was a representative or agent of the DPP and in some circumstances has produced letters of appointment from the DPP when his status was under question.
Mr. Nchito has always insisted that he was public prosecutor appointed by the DPP. He usually took great exception to being referred to as a ‘private prosecutor’. These clarifications made by Mr. Nchito and the position taken by the DPP to have appointed him as a prosecutor, we believe is founded and supported by the law.
We are therefore surprised that Mr. Nchito and MNB can now execute instructions from Mr. Nkole especially on matters of criminal prosecution.
We believe therefore that Mr. Nchito has deliberately misconducted himself by refusing to heed to lawful instructions from his supervising authority and a constitutional officer.
Mr. Nchito is a longstanding legal practitioner and is very familiar with the law. Therefore his conduct on this matter amounts to deliberately breaking the law by attempting to appeal without lawful instructions or directives.
We believe that Mr. Nchito also caused the publication of this appeal in The Post of August 24th 2009 even before the so called appeal was lodged in court.
It is these actions in our view that bring the noble profession you are privileged to head, in disrepute and into ridicule. Further it is unacceptable that lawyers should be at the fore front of breaking the law.
It is also clear that this appeal promoted constitutional breaches as is apparent.
In our view, Mr. Nchito’s conduct was designed to remove all constitutional options available to the DPP and was intended to promote legal chaos if the DPP attempted to exercise his powers so provided by the Constitution.
The DPP was trapped into public embarrassment by the illegality promoted by Mr. Nchito. The action by Mr. Nchito, in our view, was further designed to blackmail the DPP to take no other position other than that promoted by himself and Mr. Nkole.
We are reluctant to include Mr. Nkole in our complaint as we are not aware of his status with LAZ. However in the event that he is your member, this complaint of misconduct should extend to him too.
For and On Behalf of
Dr. F.J.T. Chiluba
SECOND PRESIDENT OF THE REPUBLIC OF ZAMBIA