Ms. Siyunyi-DPP Vs. Ms. Mary Chirwa-DEC/ACC/ZP
- Kasonde Mwenda C -EFF President
Both the Director of Public Prosecution-DPP Ms. Siyunyi and DEC Director Ms. Mary Chirwa are correct ‘individually’ in some particular circumstances of the law but are ‘Collectively’ wrong in this particular case involving the re-arresting of Mr. Milingo Lungu by DEC/ACC/ZP following a nolle prosequi.
According to media reports, the DEC Director Ms. Chirwa is reported to have said that she is not intimidated by Ms. Siyuni’s (DPP) letter, she doesn’t need her directive to arrest or re-arrest. She was reacting to the News Digger report that: “DIRECTOR of Public Prosecutions DPP Lillian Shawa Siyunyi State Counsel has demanded that Drug Enforcement Commission (DEC) Director General Mary Chirwa must exculpate herself over her decision to re-arrest former Konkola Copper Mines (KCM) provisional liquidator Milingo Lungu. According to DPP Siyunyi, the Commission abrogated the Constitution by re-arresting Milingo on the same charges without being instructed by her office to do so.”
At Law the DPP has no jurisdiction on criminals matters under DEC/ACC/ZP whilst they are under investigation and this is the part where Ms. Chirwa is right but the position of the law changes when prosecution begins. The DPP becomes right when Criminal prosecution begins. Prosecution typically begins with an arrest by a police officer and Immediately PROSECUTION begins at Zambian Law the DPP is within the Law and has Power to : INSTITUTE, UNDERTAKE, TAKE OVER, OR CONTINUE ANY CRIMINAL PROCEEDINGS at “ANY STAGE BEFORE JUDGEMENT” This is according to National Prosecution Authority Act No. 34 of 2010 Sec (8):
(1) which says: Subject to the Constitution, the DPP shall have authority over the exercising of all the powers and the performance of all the duties and functions conferred upon, imposed on or assigned to, prosecutors by this Act or under any other law.
(2) the functions of the Director of Public Prosecutions are to—(a) institute and undertake criminal proceedings against any person before any court, in respect of any offence alleged to have been committed by that person;
(b) take over and continue any such criminal proceedings as may have been instituted or undertaken by any other person or authority; and
(c) discontinue, at any stage before judgment is delivered, any criminal proceedings instituted or undertaken by the Director of Public Prosecutions or any other person or authority;
While DEC Director Ms Mary Chirwa also has right to “ARREST ANYONE’ according to the Narcotic Drugs and Psychotropic Substances No. 35 of 2021 of the Laws of Zambia:
Sec(56): The Director-General or an investigating officer authorised in that behalf by the Director-General may arrest a person, without a warrant, if the Director-General or an investigating officer has reasonable grounds to believe that the person has committed or is about to commit an offence under this Act.
As the Law stands, the DEC Director is right to say can she doesnt need the DPP’s directive to arrest or re-arrest anyone but that is not entirely a correct position of the law especially in instances where the case is before the office of the DPP. Once the DPP has taken over and issued a nolle prosequi, DEC no longer has jurisdiction over the matter concerning the same grounds. They can only effect an arrest on different grounds. If indeed the DEC/ACC/ZP arrested Mr. Milingo Lungu on the same grounds a nolle prosequi was issued then the DEC are wrong at law. Lifting the nolle prosequi is a preserve of the DPP not DEC/ACC/ZP. If DEC/ACC/ZP feels it has found more incriminating evidence, then it will need to collectively work with the office of the DPP so that the office of the DPP can authorize the lifting the nolle prosequi to continue the matter.
Criminal prosecution typically begins with an arrest by a police officer and according to the Zambian law the DPP has POWER to stop/take over any criminal case according to National Prosecution Authority Act No. 34 of 2010 Sec (8).
It is bad Law to over-empower the DPP but that is the state of the Zambian Law until it is revised. We want Mr. Milingo Lungu’s case to be prosecuted and a justice served but it should be done within the law and conclusively.
Wherever we want to go our feet shall take us there.
Kasonde Mwenda C
Economic Freedom Fighters-EFF President