FORMER Taskforce prosecutor Mutembo Nchito acted illegally when he appealed against the acquittal of former president Fredrick Chiluba last year by disregarding a directive of the Director of Public Prosecutions.
According to correspondence obtained by the Times of Zambia, DPP Chalwe Mchenga had on August 21 last year directed that the appeal against Dr Chiluba should not be lodged until after he had studied the judgement to determine whether or not the appeal should go ahead.
But Mr Nchito went ahead to appeal against the judgement on instruction from the then Taskforce chairperson Max Nkole despite the directive from Mr Mchenga.
After the appeal was made, Mr Mchenga wrote to the Taskforce’s new executive chairperson Godfrey Kayukwa and stated that the decision to appeal was against his express directive and a contravention of the law.
“Section 86(3) of the criminal procedure code provides that every prosecution shall be subject to the express directions of the director of public prosecutions.
“The decision by your predecessor to instruct Mr Nchito to file the notice was against my express directions and was in contravention of the law and illegal,” said Mr Mchenga in a letter dated August 26.
The former Taskforce prosecutor has been summoned by the Law association of Zambia (LAZ) legal practitioners to answer complaints raised against him by Dr Chiluba and his former Press aide Richard Sakala.
[pullquote]“To resolve the difficulty the court relied on the well established principle of criminal law that where two or more inferences can be drawn from a set of facts, the court must adopt one which is more favourable to an accused person if there is nothing to exclude such inference,” he said.[/pullquote]
Mr Nchito has written to LAZ’s legal practitioners committee informing them that the only authority that could question his decisions was the DPP and that he never received any complaint on his decision to appeal against the acquittal.
Mr Nchito appears before the committee at LAZ offices tomorrow at 12.00 hours but he has raised objections in his letter to LAZ dated May 13, 2010 in which he has indicated that he was a gazetted public prosecutor and enjoys protection as provided for by the Constitution.
He also contested that the DPP has not complained about the matter and reminded Dr Chiluba that he was not the spokesperson of the DPP.
But in his letter to Mr Kayukwa, Mr Mchenga said having read through the judgment, there was essentially one reason why Dr Chiluba and his co-accused were acquitted of theft in nine counts of the indictment.
“It is because the evidence before the court shows that the account (Zamtrop Account) from which the money alleged to have been stolen, was also received money from “private sources’.
There was un-controverted evidence that money in excess of US$8,500,000 was paid into the account from sources other than Government at the material times,” Mr Mchenga states in the letter.
He said from the evidence before the court, it was not clear whether the money the accused persons are alleged to have stolen in the counts in which they were acquitted came from Government sources or from private sources.
“To resolve the difficulty the court relied on the well established principle of criminal law that where two or more inferences can be drawn from a set of facts, the court must adopt one which is more favourable to an accused person if there is nothing to exclude such inference,” he said.
Since on the evidence before it was not possible to indicate whether the money drawn was from Government funds or private source, the court was therefore bound to draw the inference that the money drawn was that which came from the private source, an inference was favourable to the accused persons.
He said this being the case, the court had no option but to acquit them.
How long retrogressive talk will grab headlines at the expense of our humble humiliated people we do not know.When the voice of a hungry villager in Mununga,Nsazu in Chadiza,Tafuna in Mpika,Emusa in Lundazi etc Honestly this is gutting and frustrating.In all this Nchito will have the last laugh no matter what happens he is younger and wisdom entails never to fight the young FTJ must know.If he is realy King.
There is no doubt that there is an issue to be resolved here. Nchito’s argument that there is a precedence in which a prosecutor appealed without DPP instruction is valid only if in that case the DPP did not state otherwise. The independence of the DPP should be protected if we are to have the rule of law. The DPP enjoys security of tenure for the same reason. If the DPP does any wrong, a tribunal must investigate, otherwise he is the ONLY public officer in Zambia who can’t be fired. Whether right or wrong, Nchito brought the DPP’s office shame. The DPP until now is seen not to have acted independently and THAT was coz of Nchito & The Post. Sadly.
So this drama continues ? We watching.:-?
so it means any Jim and Jack can deposit money in a public account and despite where this money came from e.g. laundering, payments for assassinating some one, stolen from a purse or transferred from one account so that it accrues interest.
I think what Mchenga is relying on has indeed killed the Zambian people for we demand that such private sources be disclosed and in this case all the short thief needs to do is tell us where he got those grudaz. failure to tell us it simply mean he has to forfeit such to the state and be charged with intent to defraud the state
The Public Finance Act states that all moneys deposited in govt accounts shall be deemed as property of the state. why are these guys so keen on justifying FTJ’s acquittal? If that short brat is an innocent as he claims, then why should he have a problem facing the Courts of Law again?
Nchito was doing his job in while Farai is trying to please RB by frustrating the due process of the Law!
Chiluba lawyers brought in the Auditor General as expert witness court. When asked by the prosecutors what the law stated about putting personal money in a govt account, the Auditor General said that that money would be forfeited to the state. In short the law doesnt allow anyone to put personal money in a govt accout.
When the Learned Judge found Chiluba with a case to answer, he stated that there was need for Chiluba to explain the source of those funds. But the point is, during his defence he never stated the source. However, even if he had satisfactorily explained the source, those monies must be forfeited to the state.
THE BRAIN STORM CONTINUES MY DEAR BLOGGER S,PLEASE ,IT IS THE THINKING AND RESEARCHING THAT WILL MAKE IT MORE INTERESTING NOT INSULTS.
Which law school did Titus Mpundu Chabala Kafupi go to?? This is why LAZ has asked him to get a lawyer to represent on Friday’s hearing. The Zamtrop account was a government account subject to be audited by The Auditor General. Therefore no private individual including Titus as president was entitled to have his personal monies in that account period. Muchenga interpretation of the law was completely wrong to the extent that LAZ asked him to resign as a disgress to law practitioners.:d/:d/:d/:d/:d/:)>-
man of action dont be so ignorant. auditor general does not even audit that account. that account is under the Financial Charter 1970 for OP accounts. Levy refused to release that charter which would have shown that personal monies of head of state and other monies sourced by the security intelligence are kept in such an account. even now there are other zamtrops. FTJ can never be convicted in any court of law because they were very clever in the way they did the money transfers. FTJ did not need to steal, he had enough money from sympathisers and foreign government leaders. the americans also had their money their and they made sure the removed all trace before the case began. these nchito kids and membe were just excited fpor nothing
It is LAZ who should be complaining of being sidelined NOT Chiluba the thief :d
Alah bane, namu shala. Nabampela akapoto bashikulu ba Banda. Ninebo chief Aids patient. doctor of doctors
#9 That wasn’t part of the evidence adduced before the court. The charge was stealing $500,000 from the Zamtrop account, and the defence by Chiluba was that he had kept private money in the account as advised by Chungu. The charge was not about Chiluba keeping his private money in that account, and surprisingly that issue was not even raised in prosecution evidence. The beliefs and rantings of the Post and mmembe did not qualify as evidence, but managed to mislead some people for so long. I hope we have now learnt a lesson not to be misled by media frenzy and in the process lose sight of the evidence necessary to successfully prosecute a criminal case, or indeed to campaign successfully. Continue…..
The Post does not vote, it only attempts to influence voters’ thinking but will always fail lamentably because voters are not daft, and they do not like foul language.
Ninshi kanshi nabantu baku justice. mulekani u-mulumendo nabomba ae nchito sana.
The case that should have been persued here is putting private money in the ZAMTROP account. I could be wrong, but I am sure private sources can easily be traced. To me, this account was being used as a conduit of stolen money such as money paid to carlington(maize) and katoto(arms).
Bane..
At no time during the 7 year trial did Nchito argue or cause FTJ to explain why he had ‘private’ money in the account..he always contended that private money had gone into a Public Account and had therefore become public money…it is only after he lost the matter heaped scorn on the Magistrate that he then as an afterthought sought to Appeal so that FTJ could explain the 8m$ in that account which was from pvt sources…a good criminal lawyer would have asked that question of the investigators from day 1 and then framed the charges no new charges could be heard during appeal..Nchito blundered and should be man enough to admit as much.