DAILY Nation newspaper proprietor Richard Sakala has accused late president Levy Patrick Mwanawasa of usurping his powers by reinstating Mutembo Nchito to prosecute him on charges of abuse of office in 2002.
Sakala has accused Nchito of fabricating and illegally prosecuting him on charges of abuse of office, without the requisite constitutional authority over all prosecutions in the country.
In his petition pursuant to Article 28 (1) of the Constitution of Zambia filed in the Livingstone High Court by his lawyers Japhet Zulu advocates, Sakala of House No 15 Ngumbo Road, Longacres in Lusaka and was Frederick Chiluba’s aide for press and public relations, contends that he had now discovered circumstances that influenced his ‘unfair’ prosecution.
Sakala was on April 17, 2002 arrested by the ACC and initially charged with four counts of abuse of authority and was sentenced to two years imprisonment.
He later appealed against this sentence after serving his sentence but abandoned the appeal. However, three Supreme Court judges namely Gregory Phiri, Jones Chinyama and Rhodah Kaoma went ahead and confirmed that he was corrupt.
He was convicted of abuse of authority where he paid bills of his friends using public funds and also convicted on a charge of theft of motor vehicles.
In his petition filed in the Livingstone High Court on August 3, Sakala stated that on April 24, 2002, when he appeared in court, he was informed that the Director of Public Persecution (DPP) had issued a Fiat, sanctioning the prosecution of three out of the four charges of abuse of authority levelled against him and further that a nolle prosequi was entered against the remaining charge.
“Instead of prosecuting the petitioner on charges that were approved by the DPP as aforesaid, new charges were introduced and the same were at variance with the Fiat. The Fiat was not withdrawn but amended without the authority of the DPP. The petitioner was subsequently prosecuted and convicted even on the charges whose prosecution was not approved by the DPP. Having been released upon completion of serving the sentence, the petitioner has now discovered circumstances that influenced the unfair prosecution of the charges against him which include, inter alia the following: (i) The then Republican President Dr Levy Patrick Mwanawasa S. C., had personally intervened in his prosecution; specifically, he reinstated Mutembo Nchito to the petitioner’s prosecution,” the petition reads in part.
Sakala alleges that despite being removed from prosecuting him by the then DPP Mukelabai Mukelabai, Nchito illegally continued to prosecute him.
“The then DPP Mr Mukelabai Mukelabai had complained to the Tribunal that was appointed pursuant to Article 58 (3) (a) of the Republican Constitution then, to inquire into the question of removing him from office that the President had usurped his authority by reinstating Mr Mutembo Nchito to the prosecution of the petitioner. The Tribunal made a factual finding to the effect that the President indeed usurped the authority of the DPP,” he stated. “That we contend that articles 11, 18 and 13 of the Republican Constitution were contravened, especially in relation to the petitioner’s fundamental human rights…the Task Force prosecutor violated the constitutional authority of the DPP in the petitioner’s prosecution thereby exposing the petitioner to an illegal and irregular prosecution contravening the fundamental human rights of the petitioner to a fair trial. That the illegal prosecution was perpetuated by the Task Force on Corruption operated by its chairman Mr Mark Chona and Mr Mutembo Nchito representing MNB law firm who fabricated and illegally prosecuted charges in court, without the requisite constitutional authority over all prosecutions in the country.” Sakala adds that in pursuant of this illegality, which was expressly intended to ensure that the petitioner’s illegal incarceration in prison, the petitioner was wrongly but intentionally charged on unbailable charges not, included in the Fiat that was presented to the court by the DPP.
Sakala is seeking the Livingstone High Court to declare that the purported appointment of the private persecutor after being dismissed by the DPP was null and void and without legal or constitutional force as this was not done by the DPP.
He is also seeking the court to declare that Nchito had no authority to prosecute him without the authority of the DPP.
“A declaration that the proceedings of the prosecution were null and void on ground that the private persecutors’ appointment had been revoked by the DPP at the time he prosecuted the petitioner and therefore affecting the subsequent judgment on account of the illegality and fraud surrounding the prosecution. In compensation, I pray to the court for: exemplary compensation for the petitioner’s illegal incarceration, punitive damages to deter the abuse of the rule of law by the state and officers who exercise authority on its behalf, costs of mental and emotional distress arising from the petitioner’s illegal incarceration,” reads the petition. “Such other orders, writs of enforcing or securing the enforcement of articles 18 (1) of Chapter 3 of the Constitution in relation to your petitioner and any other relief the court may deem fit to censure impunity and ensure that the rule of law is enforced.”