DPP’s decision to prevent Lungu from prosecution went against her powers, submits Attorney General

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The DIrector of Public Prosecution (DPP) Lillian Fulata Shawa Siyuni SC

DPP’s decision to prevent Lungu from prosecution went against her powers, submits Attorney General

By Mwaka Ndawa

ATTORNEY Mulilo Kabesha has clarified that the official receiver was requested to instruct Director of Public Prosecutions Lilian Siyunyi and DEC director general Mary Chirwa to enter a plea bargain with Milingo Lungu so that the money he is alleged to have stolen from KCM (in liquidation) could be reclaimed.

He has insisted that the decision by Siyunyi to exempt former Konkola Copper Mines (KCM) provisional liquidator Lungu from retribution for theft and money laundering charges was in excess of her powers.

In law, plea bargaining is the negotiation of an agreement between the prosecution and the defence whereby the defendant pleads guilty to a lesser charge or to one or more of the offenses charged in exchange for a lenient sentence, or a dismissal of other charges.
However, an adjudicator is not mandated to be lenient when handing down the sentence or consider the recommendations made by the prosecution in favour of the accused person.


The adjudicator’s discretion is dependent on the gravity of the offence.
This is in a matter where Lungu has petitioned the State and its agents in the Constitutional Court over his re-arrest on allegations that he bought a house using illegal gains when they entered into a pact to exempt him from prosecution after he rendered the mining firm’s account records and relinquished his position.


Lungu had opposed the cross petition by the State and its agents that the immunity agreement be quashed on reasons that Article 180(4) of the constitution does not allow the DPP to enter into immunity agreements as it is the preserve of the President or persons performing executive functions.


The State and its agents said the purported immunity agreement was against public interest policy requiring alleged criminals to be tried before courts and was a blatant abuse of power by Siyunyi to protect Lungu from being answerable to the allegations against him.
Kabesha and others said Siyunyi is neither a president or person performing e executive functions, nor is she a former president.
But in an affidavit in opposition to the cross petition, Lungu explained that the basis of the negotiations was to enable him participate in the audit to reconcile his remuneration fees and any monies drawn with full and frank disclosure in exchange for payment fees due and outstanding.
“My resignation was not unconditional as alleged by the State. The terms agreed in the meeting were reduced in two agreements: the consent settlement agreement and the immunity agreement,” Lungu said


He stated that following the circumstances surrounding the bargain, the DPP was well within her powers to issue a nolle prosequi.
Lungu said the immunity agreement was valid and not illegal, against public interest or unconstitutional.
However, in an affidavit in reply to affidavit in opposition to affidavit verifying cross petition, Kabesha said his office instituted negotiations with Lungu to relinquish his position as KCM provisional liquidator.


He said the negotiating team at the office of Official Receiver was guided by the Solicitor General not to compromise on the issue of immunity which was sought by Lungu but to engage Siyunyi and Chirwa for a plea bargain anchored on asset recovery.
Kabesha said the negotiations instituted by the Solicitor General were dispensed with on January 12, 2022.
“After the Solicitor General called-off the negotiations, Lungu took plea on March 7, 2022 before magistrate Jennifer Bwalya in a matter involving K17.25 million and appeared before magistrate Felix Kaoma in a matter relating to K4.4 million,” Kabesha submitted. “No communication, whether verbal or in writing, was ever made by my office to the DPP to either enter a nolle prosequi or the purported immunity agreement as that is not permissible under the Constitution and it is reiterated that the purported agreement was unconstitutional and in excess of the DPP’s powers.”


According to a letter addressed to the official receiver by Solicitor General Marshal Muchende dated January 10, this year filed as exhibits before court, Muchende requested the official receiver to negotiate with Lungu to voluntarily resign from his position.
In relation to Lungu’s exemption from retribution, Muchende said the proposal was not available but directed the official receiver to liaise with the DPP and the director general of the Drug Enforcement Commission to enter a plea bargain and recover the money alleged to have been stolen.


“I attach a self-explanatory letter from the advocates of Milingo Lungu arising from a meeting I held with them to buttress a decision for him to resign from that position. This is more so that Milingo Lungu is not fit to serve owing to the many civil and criminal allegations made against him. In that regard I advise that you negotiate his voluntary resignation pursuant to section 78 and 79 of the corporate Insolvency Act No. 9 of 2017 on the understanding that his invoices shall be subjected to a forensic audit and reconciliation process which shall culminate in a confirmation of the amounts claimed, counter claimed or a set off; depending on the findings of the audit and reconciliation process,” read the letter in part. “With regards to the proposal for immunity, I advise that the same is not available but you may engage the office of the Director of Public Prosecutions and Director General of the Drug Enforcement Commission for a possible plea bargain anchored on the policy directive of government on asset recovery. I further advise that you appoint an agent from among the reputable audit consulting advisory firms in Zambia pursuant to section 64(3)(j) of the Act no sooner than you take over as provisional liquidator following the vacancy. This is the sure way to achieve a scamless release of Mr Lungu without prejudice to the adversarial approach which will be tardy and onerous. I advise that it will be in the interest of the State if a deal could be struck by Friday January 14, because I have sought the indulgence of the DPP to postpone the taking of plea by the said provisional liquidator in the subordinate court from 10 to 17 January 2022.”
The parties have also entered into a consent to have DEC investigations officer Boyd Munalula and the Commission struck out from the proceedings.
The consent is pending an endorsement from Constitutional Court judge Martin Musaluke.

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