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Monday, 9 March 2015

Fixing our broken prosecution

The current saga involving the Director of Public Prosecutions (DPP) Mutembo Nchito has generated a lot of commentary. The DPP is important because all criminal prosecution functions in the country are vested in the National Prosecution Authority (NPA) as set out under the National Prosecution Authority Act, 2010. The NPA Board is chaired by the DPP. This makes the DPP the guardian of all prosecutions in the country. The gatekeeper of justice.

Unfortunately, in eyes of many people the current DPP has become nothing more than a political pawn. He is viewed by many, rightly or wrongly, as being part of the infamous Cartel that ceremoniously lost out in the power struggle following President Michael Sata’s death. What seems to have upset many people recently is the DPP’s decision to enter “a nolle prosequi” (do not prosecute) in a case in which he is facing allegations of corruption and abuse of office.

For those not familiar with “nolle prosecui”, the process basically comes from the Criminal Procedure Code (CPC) which partly states: “In any trial before a subordinate court, any public prosecutor may, with the consent of the court or on the instructions of the Director of Public Prosecutions, at any time before judgment is pronounced, withdraw from the prosecution of any person”.

Many people believe that the DPP has routinely used “nolle prosequi” in a self serving manner. The latest act of entering a nolle in his own matter is the tip of the iceberg! Nason Msoni probably reflects the view of many when he says the DPP’s actions is “a classic case of wanton abuse of office warranting immediate arrest” and “constitutes a form of judicial rape of the due process of the law".

Whatever one makes of these issues, it is important we realise that the state of national prosecution in Zambia is inherently an economic issue. The NPA is an economic institution because the existence of an efficient prosecution service is vital in resolving disputes and protection of societal rights. By prosecuting criminals the NPA ensures justice, a bedrock of economic activities, is done. Crucially it ensures that the economic costs of crime and insecurity that keeps many of our vulnerable groups under dependency and perpetual poverty are reduced.

An inefficient prosecution system can also affect the poor negatively through perpetuation of national plunder. Corruption is rife in our country and is rightly regarded as the number one vice that hurts the poorest. It's has led to financial leakage from our economic system at great cost to the poor. It also disproportionately affects the poor compared to the rich, leading to growing income inequalities over time.

Only through having a clean prosecution system can we deter corrupt practices. A corrupt NPA overseen by a corrupt DPP can only encourage greater corruption. Only a corrupt-free DPP can act as a check against a corrupt and predatory executive branch by asserting his or her independence and prosecuting cases without fear or favour. We cannot expect a tainted DPP to help move this country forward in this critical area.

We must also remember that the NPA can reduce or increase the “system effect” of corruption. Corruption in institutions tasked with combating corruption is likely to encourage corruption in other areas because the possibility of punishment is reduced. Any fight against corruption must therefore begin with eradicating corruption in the NPA and ensuring that we have DPPs that are above board.

Criminal activity in the NPA sends the wrong signal to the rest of society. In line with the “broken windows theory”, dishonest DPPs can induce honest Zambians to try to become even more corrupt. This may start a downward spiral of ever-increasing lawlessness. This is the case even when in actuality only the DPP may actually be corrupt. If, on the other hand, the DPP projected an image that he or she is honest, Zambians may become more confident that they live in a law-abiding society. This environment provides them with the motivation to follow others and to play according to the rules. A positive vicious cycle could develop leading to less and less corruption.

In light of the above, our view is that there is a strong economic case for ensuring that we use the current crisis of confidence in the DPP as an opportunity to address deeper problems facing the NPA as a whole. It is right that President Lungu takes time before acting on this matter because what we need is much wider thinking. Simply replacing Nchito for someone allegedly more “clean” is like pouring water in a leaking bucket. We believe there are four important areas that need addressing in order to fix the prosecution system in Zambia.

First, we need to change the way the DPP is appointed to ensure appropriate prosecutorial independence and competence. Legislation should be put in place that more clearly guarantees it and insulates the DPP from external (including non-political) influence. In particular, the Judicial Service Commission should recommend a person for the position of DPP, who is then appointed by the President / Justice Minister. Suitable individuals should be invited to apply for the position and then be selected on merit. The process of selection should include formal interviews.

Secondly, in order to enhance accountability and transparency in the decisions made by the DPP and NPA, legislation should be reviewed to ensure that reasons for entering a “nolle prosequi” are made public. We are tired of the current practice where there is no proper explanation for how prosecutions are brought forward and then dropped. It is shameful and not fit for a modern state. Among the reforms to the “nolle prosecui” should surely include stopping the possibility of DPPs enter “nolle prosecui” in cases relating to the DPP or the NPA. We may even go further and suggest private prosecutions should be considered in such circumstances (and possibly many more).

Thirdly, there is need to substantially increase surveillance of corruption within the NPA. Investigation of malpractice relies on information. This principally comes from members of the public, the police and legal community. On the public front, there is need to widen and strengthen the Public Police Complaints Authority (PPCA) to cover the NPA. The PPCA is weak because it is not sufficiently funded and answers to DPP, IGP and ACC. We need a PPCA that is properly funded and reports directly to parliament with responsibility to take complaints related to the NPA.

Finally, we need to increase capacity for prosecution within the NPA. The establishment of NPA was intended to make prosecution of cases more efficient and improve standards. There has been little progress on this front. The NPA still only exists in five districts namely Lusaka, Ndola, Kitwe, Livingstone and Kitwe. One wonders what the DPP has been doing since he was appointed. No wonder public awareness of the NPA is very low. With the saga surrounding the DPP and little political capital it is unlikely he will be able to push for more funding. The result is prosecution will continue to suffer in this country.

Of course there may be need to consider more radical proposals e.g. reforms relating to legal aid. We would be interested to get your views on that.The main point we are making is that there are much bigger prosecution issues than the current debate in the media. This issue needs urgent attention because it matters for the prosperity of the country.

Chola Mukanga
Copyright © Zambian Economist 2015


  1. Dear Editor
    On this specific case, all I ask myself is why the DPP didn't recuse himself from a decision where he had a personal stake. Very basic, and would happen pretty much anywhere else.
    My second question is whether the present legal system in Zambia is giving investors confidence (that their rights will be respected, that agreements will be honoured - failing which, they can rely on an independant legal system). Contrast two things: the rush to justice when leadership of the PF was at stake, when legal decisions were available in hours or days, versus the two cases brought by mining companies on the ZRA's misapplication of Rule 18. Each case is at least 15 months old, with no sign of action from the judiciary. If investors don't have faith in the legal system, it will weigh heavily on decisions to invest, or whether to take their investment elsewhere. One of the pillars of a modern, progressive state.

  2. Question: could you imagine the DPP's “nolle prosecui” being tolerated in any first-world developed world country? No, of course not. So let's not tolerate it here. This is not the stuff of jurisprudence. It is the stuff of a circus.



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