Peter Sinkamba

FAILURE BY HH TO SUSPEND DPP SIYUNI IS INIMICAL TO JUSTICE DELIVERY

According to the Republic of Zambia Judiciary’s 2019 Annual Report, a total of 43,949 cases were filed in the Subordinate Courts, 29,127 of which were criminal cases. Therefore, on average, a Director of Public Prosecutions handles between 30,000 and 40,000 criminal cases per year, inclusive appeals in Superior Courts.

Now, a DPP is a public officer who, on behalf of society, and in the public interest, must at all times ensure proper application of the law where the breach of the law carries a criminal sanction, taking into account both the rights of the individual and the necessary effectiveness of the criminal justice system.

In this regards, a DPP is required to thoroughly investigate every allegation by law enforcement officers that a crime has been committed, and to effectively prosecute all cases involving violations of penal laws. In so doing, a DPP is required to apply the law to criminal cases effectively, protect the rights of the persons involved in criminal proceedings, and ensure respect of human dignity as well as the fundamental rights of accused persons.

Coming to our DPP Lilian Shawa Siyunyi, she is currently fighting too many personal battles for her survival. She has three key personal battles to fight.

First, she is fighting battles at Judicial Complaints Commission (JCC) where a number of complaints want her to be removed from office for incompetence and gross misconduct.

JCC has decided to proceed with hearings after the Concourt guided that JCC has constitutional jurisdiction to hear and determine disciplinary cases involving DPPs.

Second, she is fighting battles at Constitutional Court (Concourt) where the Attorney General has challenged the constitutionality, and therefore the legality of the indemnity agreement she signed with former Provisional Liquidator for KCM Milingo Lungu. The matter is yet to be determined by Concourt.

Third, she is fighting battles with President HH in the High Court where she wants the High Court to compel HH to write a waiver under his hand or signature, to authorise her to disclose information to JCC.

On Friday, the JCC chaired by Judge Prisca Matimba Nyambe began to hear the complaints filed by Drug Enforcement Commission (DEC) Director General Mary Chirwa and others. The hearing proceeded following Concourt guidance that JCC has powers to hear disciplinary cases involving a DPP. There is no injunction at the moment to bar JCC from proceeding with hearings.

In my view, under the circumstances, it is impossible for the DPP to effectively represent the above stayed 30,000 to 40,000 suspects. What is most worrying is that majority of suspects that she is supposed to be effectively serving are languishing in prisons and police cells, when she is busy fighting the above stated personal battles of survival. Put simply, in her current state, she cannot effectively discharge the functions of office of DPP.

For benefit of persons that have not followed this case very well, the main problem confronting the DPP Siyuni is an indemnity agreement she signed with former KCM Provisional Liquidator Milingo Lungu. The agreement bars in perpetuity security agencies to arrest and prosecute Milingo not only for criminal cases before court, or any other that is not before court concerning his activities at KCM. The agreement also provides compensation to Milingo in excess of US$90 million to be paid by the complainant KCM.

As stated above the Attorney General (AG) has challenged the constitutionality and legality of the agreement because the AG’s office did not authorise it. The AG’s contention is premised on Article 177(5)(c) and (d), where it is provided that the AG is the chief legal adviser to the Government and should represent the Government in civil proceedings to which Government is a party, and give advice on an agreement, treaty or convention to which Government intends to become a party or in respect of which the Government has an interest, before they are
concluded, except where the National Assembly otherwise directs, and subject to conditions as prescribed.

The contentions by DEC to JCC ate largely premised on Article 180 (4) of the Constitution of Zambia Amendment 2016. The said Article does not provide power to the DPP to bar a security agency to perform its constitutional and statutory powers on matters that are NOT before court. Further, the said Article does not provide power to a DPP to enter into an indemnity agreement on a matter that is NOT before court. In addition, the Article does not provide power to a DPP to discipline a DEC official or indeed any other security agency official.

The complaints by other persons are premised on Article 180 (4) as read with Article 180 (7). The complainants believe that the behaviour by the DPP to enter in the above mentioned indemnity agreement is gross misconduct or misbehaviour which brings a public office into ridicule or contempt. They also believe that the misbehaviour is tantamount to corruption by using or lending the prestige of office of DPP to advance private interest.

Just come to think of a situation where you are raped and you report to police the rape case. Consequently, the police arrest the suspect. But before the matter is taken by the police to court, you are informed that the DPP has signed an indemnity agreement with the suspect which states that the suspect shall never be arrested on any case involving you, and that as part of the said agreement, you the victim must compensate the rape suspect K100 million. Is such behaviour of a DPP who signs such an agreement in best interest of the public? Is such behaviour by a DPP in the best interest of adminstration of justice? Does such behaviour by a DPP protect the integrity of the judicial system in the country? Does such behaviour by a DPP prevent abuse of the judicial system?

In my view, such misbehaviour by a DPP is repugnant. No person found by JCC to have misbehaved in the manner contemplated above should be allowed to hold office of DPP.

Failure by HH to suspend her by now is inimical to the delivery of justice to the 30,000 to 40,000 alleged offenders who, according to the Constitution deserve effective services of the DPP. Article 181 of the Constitution of Zambia Amendment 2016 empowers the President to appoint a qualified person to perform functions of a DPP if a DPP is absent from Zambia or is unable to effectively perform functions due to illness or OTHER CAUSE.

Bye!