Lawyers representing former President Rupiah Banda this afternoon carpeted or simply embarrassed Director of Public Prosecutions Mutembo Nchito in a matter in which the former President is accused of concealing gratification.
When the matter came up for continued trial in the afternoon of Wednesday May 21,2014, the defense lawyers submitted that the Principal Resident Magistrate Obster Musukwa should refer Banda’s case to the High Court to determine constitution matters because Banda would not receive fair trial as the DPP was biased.
The lawyers argued that Nchito being a business partner to Post Newspapers Managing Director Fred Mmembe in the defunct Zambian Airways would be biased as seen from a number of editorial comments written by Mmembe in which Rupiah Banda has been presumed guilty.
They defense lawyers further argued that Article 18 0f the Zambian constitution was very clear that an accused should be tried by someone who is not biased and anyone seen or perceived to be biased should recuse him or herself.
The Lawyers said Article 28 2a of the Zambian constitution stipulates that a Magistrate can not preside over a constitution matter as it was the preserve of the High court.
Trouble for Mutembo Nchito started when in his reply, he said that there was no way he could recuse himself because the Zambian constitution only gave power to the DPP to prosecute criminal cases. “I’m the only DPP in this country. If I can not prosecute who then can prosecute? he asked.
Nchito further created more problems to himself when he referred to a case involving late President Fredrick Chiluba. Nchito further misled the court when he said there was no need to refer the matter to the high court because the High Court had already ruled on a similar case involving Rupiah Banda.
At this state Nchito was reminded by lawyer Makebi Zulu that there has never been a case of Rupiah Banda referred for constitution determination but that of his son Andrew Banda.
On re-submission, lawyer Lubinda Linyama almost teasing the DPP said ” I agree with the DPP ‘s question that if he can not prosecute who then? that is why we want the matter to be referred to the High Court because the affidavit submitted by our client is not vexatious nor frivolous because no court in the land has had an opportunity to rule on the role of the prosecution and how it should conduct itself.
Makebi Zulu reminded Mutembo Nchito ” You brought out the issue of Fredrick Chiluba. That is good. You prosecuted Chiluba as Mutembo Nchito not as DPP. You were not even a State Counsel”
“This means that the framers of the constitution put in safety valves and options. No one said it was unconstitutional when you prosecuted Chiluba. Why then can’t you appoint another prosecutor or a Private Lawyer as you did in the Chiluba case. The fact that you insist to prosecute is a sign of bias,” he said.
At this state, Nchito seemed visibly annoyed before Sakwiba Sikota rose and told Nchito that he was now the accused because he was being accused of being biased. Mutembo got annoyed and quickly Magistrate Musukwa asked both the prosecution team and the defense to go to his Chambers.
Just about 10 minutes or so, court resumed and Magistrate Musukwa asked the defense team to put their replies in writing by Friday 23/05/2014. This was seemingly done to avert further embarrassment to the DPP who kept on saying I’m the “Only DPP,”.
Magistrate Musukwa has reserved ruling to May 30,2014 on whether to refer the matter to the High Court or not.
Rupiah Banda faces several charges of concealing gratification alleged to have received sixteen motor vehicles from Segocea a Chinese Company. The vehicles were collected by Kelvin Sampa whom the PF want to stand in Kasama Central once the party successfully expels former Defense Minister Geofrey Bwalya Mwamba (GBM).