When Director of Public Prosecutions (DPP) Mutembo Nchito decided that he himself would be the person to prosecute former President Rupiah Banda despite clear conflicts of interests, MP Lucky Mulusa stood up to challenge him.
In April 2013, Mulusa wrote a widely cited letter to Nchito reminding him of his swearing under oath to a parliamentary committee that he would recuse himself from any case involving either former President Banda or Rajan Mahtani. As Nchito moved forward, Mulusa also reached out repeatedly to the Law Association of Zambia (LAZ), but to no avail.
Now that Lusaka Principal Resident Magistrate Obster Musukwa referred Nchito’s conflict of interest matter to the High Court, Mulusa’s long-running struggle against Nchito’s bias has been vindicated – but not before he was punished for his actions by the removal of his parliamentary seat.
From the word go, Mulusa had argued that Nchito had no legal grounds to be the person to prosecute Banda. Mulusa discovered that Nchito, by lying to the Parliamentary Select Committee, had committed a criminal offense under Cap 12 (of the laws of Zambia) – Parliamentary privileges provides for section 16 ,which is giving false evidence and is therefore a criminal offense under section 104 of the penal code Cap 87.
In Mulusa’s letter to Nchito in April 2013, he wrote, “Although you are fearless, your disposition is driven by desire to emancipate your personal circumstances (Mahtani case) or settle personal scores (Banda case).”
Indeed, that is exactly what Nchito proceeded to do, by entering a noelle prosequi against Mahtani in his forgery case despite personally owing Finance Bank some $4.2 million in debt due to the bankruptcy of Zambian Airways, and also proceeded to initiate two cases against former President Banda based on disputed circumstances.
At the time, activist Brebner Changala wrote to the Anti-Corruption Commission (ACC) demanding an immediate judicial review of Nchito’s actions, to see if he had exchanged impunity for Mahtani for debt forgiveness: “In exchange for the nolle prosequi mentioned above, on November 26th, 2012, Dr. Mahtani being Finance Bank chairman directed Lusaka Lawyer to discontinue the suit commenced by Finance Bank against Mr. Nchito in the Commercial Court cause no 2011/HPC/0511.”
After appealing to the LAZ disciplinary committee to initiate a review of Nchito’s lying under oath (which has hopelessly stalled out), Mulusa began to receive threats that his seat would be nullified. In response, he wrote a letter in April 2013, saying he would hold his position: “I have been receiving several messages of solidarity regarding the Mutembo Nchito fiasco and the possibility that Parliament will discipline me. I have also received messages in which some people are concerned for my safety. I remain unfazed for I am alive to the proven historical fact that the struggle for the emancipation against evil is never and will never be without risk and sacrifice. I am encouraged by the verses and prayers I am receiving from God fearing Zambians.”
Nevertheless, the Supreme Court moved to nullify his Solwezi Central parliamentary seat despite him having won at the High Court level.
In light of the referral to the High Court of Nchito’s conflict of interest, Mulusa may be vindicated – which may only encourage him to continue fighting the uphill legal battle to have his parliamentary seat restored.