An attempt to hide information of massive plunder of funds and assets from the defunct Task Force accounts held by the Bank of Zambia (BOZ) implicating Mutembo Nchito, the Director of Public Prosecution has been thrown out by the Lusaka High Court.
Judge Mubanga Kondolo has refused to suppress two explicit internal BOZ memoranda that reveal unbridled impunity that resulted in massive thefts and losses.
The Judge has ruled that it was totally inappropriate for the Bank of Zambia to enter into schemes that would suppress the truth regarding the mismanagement of assets held in public trust.
Nchito and Nchito on behalf of BOZ had applied that the two memoranda should be expunged because they were protected by professional privilege. This is in a matter in which Director of the sequestrated Access Financial Services and Access Leasing have demanded for an accounting of their funds and assets.
In rejecting the application Judge Kondolo explained that ” The requirements regarding upholding the public interest should necessarily be greater with respect to counsel employed by Government bodies, especially those performing statutory functions. Such officers represent the citizenry and a greater degree of care is expected of them.”
Such officers , he said, must diligently guard against pressure to dispense dishonest or improper advice because they had a higher public interest to serve.
” I have no hesitation in finding that it would be contrary to public interest that a statutory body should deliberately avoid disciplining an officer who has been charged with serious offences because they are worried that he will, in a manner of speaking “spill the beans” he said.
He added “Further in carrying out its statutory functions it would be contrary to public policy for a statutory body to be selective in which facts to present in determining matters relevant to the execution of its statutory functions.” He said.
The internal Memoranda revealed a scheme by the Bank of Zambia to stop disciplinary proceeding against the officer at the centre of the scam, Marshall Mwansompelo, who served as Access Finance and Access leasing receiver/liquidation Manager.
The Bank was concerned that if punished Mwansompelo might “spill the beans” and thereby implicate officers who fell within Marshall hierarchical reporting context.
This includes Mutembo Nchito who was both lead prosecuting officer for the Task Force where he was reportedly paid US$20,000 a month at the same time a partner in MNB law firm retained by the Bank of Zambia which paid billions of Kwacha, in a serious conflict of interest situation.
The Judge noted that where “trickery” and “shams” or indeed fraud were involved privilege could not be invoked..
The Nchito brothers company Nchito and Nchito, formerly MNB had applied, on behalf of the Bank of Zambia to have the documents expunged from the record because they were privileged.
But the Judge ruled that communication made for an illegal and improper purpose which improper purpose was contrary to public interest could not enjoy professional privilege.
Judge Mubanga Kondolo threw out the application, stating that it would be contrary to public policy for the Court to condone an application that would suppress information divulging wrong doing.
The documents, he said were brought into existence in furtherance of an improper purpose, namely advising the Bank of Zambia management to dispense with disciplinary hearing against Marshall Mwansompelo ” Not because he was blameless or innocent but because he was likely to reveal or divulge information which would impact negatively against the Bank and for the purpose of suppressing information that might become available to the applicants and help them in their quest to prove that the liquidation was mismanaged.” He said.
The Judge also charged that it would be contrary to public policy for the legal professional privilege to be used for such documents, “The claim for legal professional priviledge in respect of these two documents is rejected.” The judge ruled.