Now, with the court’s finding on Friday that the participation of the Director for Public Prosecutions Mutembo Nchito in the Banda matter poses constitutional issues that must be examined by the High Court, the question of whether or not he can receive a fair trial is yet again in the headlines.
In challenging Nchito’s suitability as a prosecutor, the defence team has opened up a highly contentious subject: the business debts of Zambian Airways, for which Nchito and Post editor Fred M’membe are believed to be pursuing a personal grudge against Banda for the company’s failure. This same case has also driven some of the most controversial legal developments in the country, such as the attempt to form a controversial tribunal by Malawian Judge Lovemore Chikopa, the firing of two High Court judges and one Supreme Court Justice who had ruled against M’membe and Nchito on the DBZ debt, as well as the formation of a judicial review panel that has the power to fire judges who make politically unpopular decisions. Legal analysts say that the very structure of the judicial system itself is being re-shaped around this dispute over just a few million dollars that Nchito and M’membe are refusing to repay to the taxpayer.
Below, you can find an exclusive document that Banda’s legal team submitted to the court, where you can read word-for-word why they believed that DPP Nchito was biased against Banda and should be removed from the case.
The application declares: “What we are saying is that because of the connection between Fred M’membe, the Post Newspapers, Zambian Airways and the DPP there is a constitution impediment to the accused getting a fair hearing if the DPP handles this matter. This is a fact that can clearly be seen from the concession by the DPP before the parliamentary select committee when he undertook not to personally handle matters concerning Mr. Rupiah Banda because of this nexus.”
In his ruling, which contrary to some media reports did not address the merits of Nchito’s alleged bias, Principal Magistrate Obbister Musukwa wrote: “Where do you draw the line between the accused person’s right to a fair hearing or trial as envisaged
by Article 18 (1) and (2) of the Bill of Rights of the Constitution and the power of the Director of Prosecutions to prosecute this matter where it appears on the face of it to conflict with an accused person’s right to a fair trial?”
It will be incredibly interesting to see how the High Court handles the constitutional question, as the decision would rest on how the court interprets some of the biggest legal questions in the nation where more than three judicial officers have already lost their jobs.