Isaac Mwanza chekmates DPP Siyunyi

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By Isaac Mwanza

Today we discussed the following issues on Comet Radio – 93.7 FM concerning the release of Mr. Hichilema and his co – accused.

Following our discussions with members from our legal team of young lawyers and students that went into the early hours of this morning;

We fully agreed that Mr. Hichilema and other accused persons were discharged based on a Nolle entered by the DPP.

The words of the DPP in court were as follows:

“At this juncture I would like to inform the honorable court that I am entering a nolle prosequi in respect of all the accused persons before you, having regard to Cap 87 (of the Laws of Zambia), the Constitution of the Republic of Zambia, Article 180, paragraph seven of the laws of Zambia, Siyunyi said.”

Chapter 87 of the Laws of Zambia is a Penal Code under which accused persons were charged. The Code does not provide for criminal procedures but the Penal Code is read with CAP 88 where Section 81 provides for the Nolle. So criminal lawyers know the value of reading these 2 laws together.

Article 180 clause 7 of the Constitution of Zambia is about how the DPP is not to take instructions from anyone and that DPP must take into account public interest and so forth in discharge of functions. It does not talk about how a criminal matter ends.

Basic criminal law will show that the only instance where there is a discharge is where the state offers no evidence. So the guiding question is: did the State offer no evidence before we can talk about a discharge? Since when did public interest equal to discharge?

Resulting from thorough discussion, the following position was arrived by the legal team:

YALI AFFIRMS DPP ENTERED A NOLLE IN TREASON CASE

The Young African Leaders Initiative (YALI) would like to now conclusively and categorically state that after careful consideration and study of this matter, it is our conclusive position that the DPP did, in fact and at law, enter the Nolle Prosequi to discontinue the treason case.

By informing the Court that she was entering a Nolle in accordance with Chapter 87 of the Laws of Zambia, which is a Penal Code, and in consideration of Article 180 clause 7 of the Constitution of Zambia, madam Siyuni did enter a Nolle to discontinue the case in public interest. The mention of Article 180 clause 7 in her notice to discontinue a case does not reduce the Nolle to a discharge and neither did the DPP state that she had entered a Nolle in accordance with Article 180(4)(c). This is also by imputation.

Further, we want to add that entering a Nolle in public interest does not amount to the discharge of the accused persons as accused persons can only be discharged when the State enters a no evidence against the accused persons which is not the case in Mr. Hichilema’s case. In criminal law, the only instance where there is a discharge is where the State offers no evidence.

The effect of a Nolle is that Mr. Hichilema and his co-accused can still be rearrested in accordance with the provisions of Section 81(1) of the Criminal Procedure Code should the State decide that reasons exists to reopen and prosecuted the case.

Previously, the DPP was required to write to Attorney General when matters of public interest arose in any matter, and the Attorney General’s directive would be binding on DPP. That was how Nolle was entered in public interest.

The current law is that the Constitution of Zambia as amended in 2016 removed the Attorney General from being consulted by the DPP whenever he or she seeks to discontinue a case in public interest. The Constitution has given the DPP such express power to decide for herself.

We implore Government to reinstated the provision where the DPP must still consult the Attorney General when entering a Nolle in public interest because the Attorney General is the protector of public interest but also because the DPP has ordinary no interaction with the executive. In principal, the DPP should not interact with executive to avoid innuendos of DPP being directed who to arrest and which charges to discontinue. The DPP is, therefore, ill-qualified to know what public interest issues are due to lack of this interaction with the executive.

YALI therefore recommends that amendments to the Constitution must reinstate the required need for the DPP to refer such cases to Attorney General for binding directives from Attorney General. This becomes the only instance when the DPP should get instructions from the Attorney General and no other occasion. It was therefore erroneous and of no real purpose to remove this provision from the Constitution.

YALI, like many other legal brains, corrects some erroneous view we could also have held that the Director of Public Prosecutions (DPP) had not entered Nolle Prosequi in the treason case of Hakainde Hichilema and his fellow accused persons. This must be a remainder to the judiciary of the importance of allowing the media and the public to some recordings of court proceedings so that such information can be reviewed to avoid any misrepresentation of the Constitution but also calls on those tasked to draft our laws to do so with clarity and simplicity.

DPP MUST AVOID ABUSE OF NOLLE

We emphasized this morning that Article 180 (6) has NOT conferred powers on the DPP to exercise a Nolle in relation to an appeal by a convicted person, a case stated or a question of law reserved at the instance of that person. The words, “at the instance of” simply means at the request of or at the instigation of. So in matters of an appeal commenced at the instigation of a person, a case stated or a question of law commenced at the instigation of a person, the DPP has no powers to entered a Nolle.

ABUSE OF NOLLE IS GROUND FOR REMOVAL OF DPP FROM OFFICE

While the Constitution protects the DPP and secures her tenure in office, such protection is is not immunity for removal of DPP. Our democratic system is such that even the President can be removed from office via impeachment. The Chief Justice, Judges and judicial officers all can be removed from office due to a number of reasons as stated in Article 143 and 144 of the Constitution. No is above the law when it comes to removal from office.

Article 182 clause (3) says the Director of Public Prosecutions may be removed from office on the same grounds and procedure as apply to a judge.

So abuse of a Nolle may amount to misconduct. An example is where the DPP enters a Nolle in his or her own criminal case commenced at the instigation of an individual or she enters a Nolle in disregard of provisions of Article 180 (6). The DPP can be reported to the Judicial Complaints Commission, she can be suspended and investigated by the Commission.

So the DPP must always exercise caution and always watch her back when entering the Nolle. We don’t want what happened to the ConCourt Judges to repeat itself where she would also spend months on end to defend herself. The Judges today don’t know their fate but even if the JCC said they did not show any incompetence in the way the handled the petition, we at least managed to send a remainder as citizens that we are watching them!

DIALOGUE BY POLITICAL LEADERS A MUST

As we called for meaningful dialogue among political leaders, we said dialogue should not be restricted to Edgar Lungu and HH but must be all-inclusive. We thus called, on the Podium, for the state to also drop charges against EFF leader Chilufya Tayali as he charge is interconnected to the treason trial.

We finally made it clear that both Edgar Lungu and Hakainde Hichilema are leaders and must behave as leaders. Leaders don’t wait for the Commonwealth SG or her mediator to begin talking; leaders don’t wait for the Catholic fathers to begin talking. Leaders show leadership and take first steps towards resolving problem. Imagine Edgar Lungu paying a courtesy call to HH and privately discuss away from cameras or HH privately visiting ECL and beginning to talk and remove his frustrations or mis-giving about the breakdown of our court system.

We look forward to a day when we can see Edgar Lungu address youth and women from UPND or HH addressing youths and women from PF. Where youths maturely engage and without insults talk to these leaders. Then we shall all be proud of our new style of democracy. This sounds like a dream but they say, “if you wish it, it shall never be dream”. Our leaders can make this happen.

Once again, thanks Comet Radio for hosting us.