Abuse of nolle prosequi

The Director of Public of Prosecutions last Wednesday entered a nolle prosequi in a case where Hakainde Hichilema asked the court to cite Amos Chanda, Richard Sakala and the Daily Nation for contempt of court.



In this case, it is claimed that Chanda, the special assistant to the President for press and public relations, Sakala, the proprietor of the Daily Nation and his newspaper, on dates unknown but between May 1 and June 1, 2017, in Lusaka jointly and while acting together with other persons unknown while judicial proceedings were pending in the subordinate court involving Hichilema and five others in a case where they are charged with treason, made and published in writing an article which was contemptuous and /or prejudicial against or capable of prejudicing the accused persons.

The story complained of was headlined “HH acted foolishly” that the Daily Nation published on June 1 quoting Chanda who appeared on an Al Jazeera ‘The Stream’ programme on May 30.
In the same article, Chanda had stated that “…there was no witch-hunt in the arrest of Mr Hichilema as the predicament he is faced is purely out of his recklessness and foolish behaviour of endangering the life of the President even after power sirens signalled the coming of the presidential motorcade”.
The other allegation concerning defamation alleged that the trio on the same dates jointly and while acting together with other persons unknown published defamatory words concerning the complainants by exposing them to hatred, contempt or ridicule.



As we have stated before, it is a well-known fact that throughout history, those who administer or control the criminal justice system hold the power with the potential for abuse and tyranny. The statutory powers of the Director of Public Prosecutions  should be reasonably exercised and in good faith. By unjustifiably dropping the charges against Chanda, Sakala and the Daily Nation, the Director of Public of Prosecutions is sending a dangerous signal that sacred cows that cannot be brought to justice abound in the country. The only antidote to the culture of venality is the readiness of the Director of Public Prosecutions to apply the laws equally. This nolle prosequi is clearly contrary to the doctrine that all persons, regardless of wealth, social status, or the political power wielded by them, are to be treated the same before the law.

Discretionary power accorded to humans is by definition not without problems. We should all be very alert and ensure that such discretionary powers are not abused. Such abuse of state power, prosecution powers and nolle prosequis should not be allowed to go unchallenged.

In Freedom under the Law, Lord Denning wisely remarked, “All power corrupts. Total power corrupts absolutely. And the trouble about it is that an official who is the possessor of power often does not realize when he is abusing it. Its influence is so insidious that he may believe that he is acting for the public good when, in truth, all he is doing is to assert his own brief authority. The Jack-in-office never realizes that he is being a little tyrant.”

Last Wednesday’s nolle prosequi by the Director of Public Prosecutions is a very good example of the little tyranny that Lord Denning wrote about in his book. The Director of Public Prosecutions’ decision to enter a nolle prosequi in this complaint seems to wholly be based on political rather than legal grounds. She took that decision on account of the accused persons or contemnors’ close relationship with the centre of state power. And this is in total disregard of the High Court precedent set by judge Mchenga in The People v Fred M’membe. In that case, judge Nchenga clearly stated that the Director of Public Prosecutions can only take over private prosecutions in the public interest, that is, if the takeover ensures that it is “not abandoned or ineffectively conducted whether through lack of means, inertia or any other reason”.

This is clearly an abuse of power to free from prosecution those close to those in power. And a pattern is starting to emerge where no contempt of court proceedings against those in power or close to them are ever entertained. They can denounce, insult judges and nothing happens to them. They comment on matters before court in a manner that is prejudicial and nothing happens to them. And if a private prosecution is commenced against such people, the Director of Public Prosecutions simply steps in to stop it through a nolle prosequi.

Of course, sometimes the courts may find themselves in a very difficult situation and under a lot of pressure to admit such abuses. In such matters, there may be very little a court can do if the process is right but to admit such abuses of the judicial process.

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