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.
