By Munyonzwe Hamalengwa (PhD law)
May 26, 2015
I have read the Tribunal decision on the preliminary issues raised by the DPP Mr. Mutembo Nchito. This case raises many complex and interesting legal issues. The Minister of Justice, Dr. Ngosa Simbyakula is an academic at heart and I reckon he churns in his mind what he could have written about this case were he still in academia. This case also raises important political and constitutional issues. Only simpletons and imbeciles can and will haul insults at people who attempt to do academic and neutral analyses of the complex issues involved. The blogspehere have a lot of these. But insults will not dissuade us from participating in our patriotic zeal for Zambia.
It appears the precedents are there that these tribunals are held in camera but this appears not to be cast in stone. I conclude that there is discretion to hold these hearings in public. These precedents of in-camera hearings were created at the discretion of the judges and they can be removed by these tribunals on a case by case basis. These so-called precedents are not binding at all. The constitution doesn’t say these hearings must be in camera. It allows for discretion. There is nothing more important in terms of the public interest and the need to air issues attached thereto other than the removal of the President and Chief Justice than the removal of the DPP. It appears in this case the tribunal decided that in the interests of justice to the parties, particularly to guard against the perceived personal media attacks on the tribunal members, that this tribunal should be held in camera. Of course there is more there than I am stating it. The tribunal did not discuss the prior media exposure to the issues and the possibly resulting character assassination of the DPP that now need public hearing by way of counteracting. What had gone on needed to be answered in public. It seems to me that the tribunal members are more interested in preserving their integrity and characters than that of the subject, protestations to the contrary. If the subject insists on a public hearing, I would err in that direction. However, the truth will always come out.
I am amazed at the reliance on colonial precedents and the failure to refer to the jurisprudence of other jurisdictions including Canada, South Africa, the USA etc where the issues in question have been updated and the concept of open Justice has been modernized and substantially discussed. More so, by now Zambia after fifty years must have developed its own jurisprudence. Canada has long discarded British and American precedents. South Africa mainly refers to its recent jurisprudence. Zambia’s legal umbilical cord is still tied to Britain. Who benefits from this state of affairs, is the question.
The issue of recusal of some of the tribunal members does not seem to have been covered fully. However, this is a most difficult area to litigate anywhere in the world. This area is more advanced in terms of jurisprudence in Canada, the USA, South Africa, Australia and elsewhere than it is in Britain on which Zambia relies. Zambia should have developed its own paradigm by now than relying on British musings. Recusal strikes at the heart of judicial credibility and judges are wont to permanently tarnish their images by consenting to attaching this dark cloud on themselves. Rarely have judges consented to this even when the evidence is clear in some cases, not necessarily referring to the present application. This phenomenon is world wide. The Nchito case is a high profile case, driven of course by open as well as hidden political dynamics. A lot is at stake. Political careers are to be made or unmade based on this case. Even if there was merit to the recusal motion, would any judge recuse himself given the alignment of legal and political forces at play. Plus there are heavy financial compensations on the table for many players which cannot easily be given up. This is a job.
The tribunal is investigating whether there should be a recommendation for the removal of the DPP because of incompetence, incapacity or misbehaviour. A great deal of the allegations were known before the DPP was ratified by parliament. When President Sata was alive, no tribunal was established. There is clearly a political aspect to this case and only infantiles can fail to detect such. When did Nchito become incompetent? Has he ever been reported to be incapacitated? How long has he been misbehaving? He wasn’t incompetent, incapacitated or misbehaving under Sata, was he? Zambia is not composed of infantiles. Other allegations deal with the use of discretion by the DPP where he in fact needs no supervisory grants. This will be a very difficult case to make negative findings based on incompetence, incapacity or misbehaviour. I fear that Zambian tax payers money will again go down the drain like what has been spent on various constitutional commissions that led nowhere. Many such tribunals ought to be well thought out before launching them. In my humble opinion I respectfully submit.