MILINGO’S CASE: IMMUNITY AGREEMENT AND NOLLE NOT IRREGULAR
By Isaac Mwanza
Now that the public is aware of what happened in the matter leading to the Nolle Prosequi entered by the Director of Public Prosecutions against former KCM Liquidator Milingo Lungu, the questions the public are asking are: was the Presidency wrong to get involved in negotiations leading to the Nolle being entered? Was the DPP wrong to pay attention to negotiations by the Attorney General, Ministers and State House? My short answer is NO. So let’s look at the law.
POSITION OF ATTORNEY-GENERAL, DPP AND MINISTERS IN GOVERNMENT BUSINESS
Under Article 180(3) and Article 177(5), the Director of Public Prosecutions is the chief prosecutor for the Government and the Attorney General is the Chief Legal Advisor to the Government. This means they two play a complementary role to each other.
According to the Constitution, both Attorney-General and the DPP, are not subject to the direction or control of a person or an authority in the performance of their functions as seen from Article 175(4) and 180(7), “except that the Director of Public Prosecutions shall have regard to the public interest, administration of justice, the integrity of the judicial system and the need to prevent and avoid abuse of the legal process.”
We all know that Government, to which the Attorney General and DPP, belongs is headed by the Republican President. Government comprises of Ministries headed by Ministers, State institutions and organs, Commissions and Department. All these institutions interact with one another in the running of Government.
ENTRY OF NOLLE
The DPP, who is the Chief Prosecutor for Government, has been given the Constitutional power under Article 180(3)(c) to discontinue, at any stage before judgment is delivered, criminal proceedings instituted or undertaken by the Director of Public Prosecutions or another person or authority. The DPP does that through an entry of a Nolle.
Again, in performance of this duty to discontinue proceedings, the DPP is only required to have regard to the (1) public interest, (2) administration of justice, (3) the integrity of the judicial system and (4) the need to prevent and avoid abuse of the legal process.
So the DPP can discontinue any case whenever any of the 4 conditions exist.
From what we can read from the petition so far filed before the Court, it is clear that the DPP entered a Nolle with regards to public interest and to prevent and avoid the abuse of the legal process. One may wonder as to what “public interests” are since there is lot of noise from the public against the discontinuation of the Milingo case. Public interest does not mean public approval or public noise or public disproval.
The President is the custodian of public interest. The Attorney General and his deputy (Solicitor General), are the protector of public interest. The President too is the custodian of where the Milingo. The Ministers also decide what is public interest. We have a number judgments from our Courts where the issue of public interest has been discussed.
In one case of deportation decided in 1979 involving Barry, the High Court went further to comment on determination of public interest:
“It is not for the courts to decide what is inimical to public interest, but for the Minister,… He (the Minister) is an executive officer bound to act in the public interest, and it is left to his judgment whether upon the facts a non – Zambian may be declared inimical to the public interest.”
Also note that the President can retire people in public interest even when the public disapproves of such persons being retired.
In 2016 after the failed Presidential Petition, I was leading a team of citizens who took a complaint to the Judicial Complaints Commission for the removal of the 5 judges of the Constitutional Court. Despite us having been members of the public who disagreed with the manner the Court handled the petition, the Attorney General joined the proceedings in defence of the Judges.
Although it was clear the Attorney General may have had reservations with some of the conduct by the Court, application for the Attorney-General to join was based on the fact that he was the protector of public interest and he performed his role very well in defending the judges from being removed even though he could have disagreed with some of their rulings before.
CONCLUSION
There is nothing irregular with President Hakainde Hichilema who is the custodian of public interest to a directly or through his Ministers to negotiate a settlement of a criminal matter, especially that now we know based on facts given albeit one sided that Milingos case had a very good defence, with too many doubts. The President and his Minister, acting through public interest, entered into a settlement leading to the immunity agreement between the State and the accused.
The Attorney General and Solicitor General did not break any law by hosting a meeting which involved members from the DPP office and also in giving advice to the DPP on matters of public interest. That is their job. There is nothing irregular with that. The DPP was right to enter a Nolle based on the settlement done in public interest and the continued prosecution of Milingo Lungu was going to be the abuse of the legal process, having discharged his burden.
What has been the problem in this whole matter is that the N. D Government is failing to take responsibility for their actions because they fear public noise or public pressure or public disapproval. In leading a nation, leaders make tough decisions and good leaders stand by their decisions.
NB: Milingo Lungu is represented by law farmers belonging to Speaker of the National Assembly, Nelly Mutti, State Counsel Sakwiba Sikota and Makebi Zulu. The merits or demerits of the case is not subject for this discussion in this article.