DPP decision to prosecute RB case quashed
Published On March 2, 2015 » 7453 Views» By Davies M.M Chanda » Latest News
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By DELPHINE ZULU –
THE Lusaka High Court has quashed the decision by Director of Public Prosecution (DPP) Mutembo Nchito to prosecute a case in which former Republican President Rupiah Banda had sued the Post Newspaper and Editor- in – Chief Fred M’membe for contempt.
High Court Judge Chalwe Mchenga said that allowing Mr Nchito to prosecute this case was likely to violate the complainant’s rights to institute a private prosecution as it was inconceivable that he was in a position to objectively deal with the complainant against the accused persons.
“His takeover of the case on May 8, 2014 is quashed, the case is sent back to the Subordinate Court for plea and the commencement of trial,” Mr Justice Mchenga said.
Mr Justice Mchenga said while it was not in dispute that Mr Nchito had the powers to takeover a prosecution instituted or discontinue a matter by a private individual, he should indicate whether it was in public interest because it was cardinal.
“From the evidence before me, I find that there is no basis for me to come to the conclusion that
Mr Nchito’s decision to takeover prosecution was in public interest, having regard to the circumstances
of this case, it cannot be in public interest for him to take over the prosecution of a business partner whether for the purposes of carrying on with it or stopping it,” he said.
The case was commenced through a complaint and it was referred to the High Court for determination of a Constitutional issue that arose following Mr Nchito’s decision to take over its prosecution.
The circumstances surrounding this case are that Mr Banda, the complainant appeared before the Subordinate Court in 2013 on an offence of abuse of authority of office and corrupt practices but
during the process, the Post Newspapers published an article authored by Mr M’membe which labelled him as being corrupt.
Mr Banda then complained against the article that since he was presumed to be innocent until proven guilty, the proceedings must be reported accurately and fairly.
Despite the ruling, 19 more defamatory articles were published by the accused persons.
He then sued Mr M’membe on 19 counts of contempt of court alleging that whilst in the driver’s seat, the accused published contemptuous articles that were prejudicial to the complainant and were calculated
to lower the authority of the court before which he was appearing.
But before Mr M’membe could take plea, National Prosecutions Authority deputy chief advocate, Marble Nawa informed the court that in exercise of his powers under Article 56 of the Constitution, the DPP was taking over the prosecution of the matter.
Mr Banda’s lawyers contested on grounds that the decision was likely breach their client’s right to a fair hearing which was set out in Article 18 of the Constitution.

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