International lawyer Robert Amsterdam has asked Zambia’s Director of Public Prosecutions Mutembo Nchito to resign on grounds of professional misconduct for failing to demonstrate the independence of his office.
Amsterdam, counsel for fourth Republican president Rupiah Banda and his son Henry, alleges that Nchito and his business partners are at the centre of sensationalist headline-based media trial of the former head of state and his family.
In an open letter to Nchito, Amsterdam states that the current DPP should step aside for failing the independence test to continue holding the the position of his office for which he should never have been appointed in the first place.
“Objectively, Mr. Nchito, this position raises important considerations of professional criteria of office. The reasonable apprehension of bias both subjectively and objectively represents a hurdle you could not overcome before any rule of law court.
“It is arguable that your conduct itself constitutes a perversion of justice, particularly in combination with the illegal arrests and detentions of opposition leaders, which have damaged Zambia’s standing as a state supposedly enjoying an independent judicial system,” part of Amsterdam’s letter reads.
Below is the full letter of international lawyer Robert Amsterdam to Director of Public Prosecutions Mutembo Nchito.
AN OPEN LETTER TO THE DIRECTOR OF PUBLIC PROSECUTIONS OF ZAMBIA
MR. MUTEMBO NCHITO
Dear Mr. Nchito,
I write to you as international counsel to His Excellency former President Rupiah Banda regarding serious and urgent concerns over your conduct as Director of Public Prosecutions over the past year.
As you are well aware, His Excellency and his family have been ruthlessly targeted by the Zambian government and investigative wings under your direction in a systematic campaign of politically motivated calumny and defamation with little parallel in Zambian history.
For almost 16 months, the state-controlled media and politically compromised media such as The Post have published a vast array of patently false accusations against the distinguished former head of state and his family, ranging from the disappearance of gold, to trumped up conspiracies of oil contracts, to total non-crimes such as campaign fundraising. The fact that these allegations turn up as sensationalist headlines in the media only to disappear and be forgotten speaks volumes about their fundamental lack of substance. After 16 months of this attack campaign, there has not been one single formal charge or even a real investigation. Worse still, after 16 months, we have not been informed of what, exactly, if any, alleged offence took place.
The purpose of these trials-by-headline is to damage reputation in place of any sort of procedural exercise of the law based upon the presumption of innocence. It is clear that you, Sir, and your former business partner Fred M’membe of the Post Newspaper, are in charge of overseeing a civil conspiracy to defame a respected elder statesman.
Over the last number of days, myself and many others have received calls from individuals who have been brought into some kind of desperate dragnet in an attempt by the investigative wings to come up with some form of credible charge against the former President.
Most recently, the former President was subjected to an extraordinary and illegal request to attend before the Joint Investigative Team to allegedly answer in respect to charges that were, yet again, unspecified. In furtherance of your civil conspiracy to harm the reputation of President Banda, you provided newspapers, including the Post, with this private and confidential correspondence prior to even these requests reaching the hands of my client.
Now sir, let us publicly review some facts. Along with Mr. M’membe, you are known co-defendants in a civil trial where you have been found to owe more than $3 million U.S. dollars to the Development Bank of Zambia (DBZ). Your professional misconduct in that case earned the discredit of the judge, as shown in comments he made in open court which made its way into the ruling.
Given the fact that it is uncontested that you and your co-defendant M’membe approached President Banda during his tenure for financial assistance but were refused, you both have harboured ill will towards my client that has manifested itself in this notorious campaign of defamation, intimidation, and harassment against him and his family.
Along with the Patriotic Front’s apparent goal of returning Zambia to a one-party state and President Sata’s determination to wipe out political competition, the Nchito-M’membe defamation conspiracy against the Banda family found an enthusiastic sponsor in the administration.
Objectively, Mr. Nchito, this position raises important considerations of professional criteria of office. The reasonable apprehension of bias both subjectively and objectively represents a hurdle you could not overcome before any rule of law court. It is arguable that your conduct itself constitutes a perversion of justice, particularly in combination with the illegal arrests and detentions of opposition leaders, which have damaged Zambia’s standing as a state supposedly enjoying an independent judicial system.
You have also violated the Guidelines for proper prosecutorial conduct promulgated by both the African Commission on Human and Peoples’ Rights and the United Nations.
The African Commission’s Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa require that prosecutors “carry out their functions impartially and avoid all political … or any other kind of discrimination.” They further mandate that Prosecutors “act with objectivity.” And further, that prosecutors “shall always conduct themselves in accordance with … the recognized standards and ethics of their profession,” and “perform their duties fairly, …, and respect and protect dignity and uphold human rights, thus contributing to ensuring due process …”
Identical standards are included in the United Nations’ Guidelines on the Role of Prosecutors.
Your conduct violates all of these fundamental standards of prosecutorial ethics.
Your actions against President Banda, his family, and leaders of the opposition blatantly discriminate on political and other grounds, fail to meet minimum standards of impartiality, objectivity and fairness, and disrespect their dignity and human rights, including their right to due process of law. Your abusive actions fall far below the “recognized standards and ethics” governing prosecutorial conduct.
In addition, there is the fact that President Sata himself has interfered with the judicial process directly in an attempt to benefit you and M’membe by suspending the judges and justice who ruled against you in the DBZ case after a full hearing in a Zambian Court.
This, too, violates the African Guidelines, which mandate that judicial bodies “shall be independent from the executive branch” and free from “any inappropriate or unwarranted interference.”
When you combine your record of contemptuous conduct to the judiciary with the illegal and defamatory attack on my client, it appears that such circumstances one might go over your head to the Minister of Justice.
The Minister of Justice Mr. Wynter Kabimba, however, also serves as Secretary General of the Patriotic Front, and has shown himself to be contemptuous of the investigative wings and to hold himself above the law. For ease of reference I attach a photo of the Justice Minister at the ACC accompanied by menacing PF thugs, refusing to answer substantive allegations over his own conduct.
In such a hopelessly politically charged and biased environment, your attempt to lift my client’s immunity represents a shameful departure from Zambian history.
I call upon you to resign from the post you should never have been awarded, and do the honourable thing, if you have any honour left.
In light of your behavior to date I intend to file a complaint before the African Commission for Human Rights early next week documenting these concerns and evidence of your misconduct unless I receive a satisfactory response by Monday close of business.
International counsel to former President Rupiah Banda