By Peter Sinkamba

THE DEC NOLLE SAGA ENTERS INTO UNCHATTERED WATERS: CAN A PLEA AGREEMENT OVERIDE CONSTITUTIONAL IMPERATIVES?

The issue of the Director of Public Prosecution (DPP) Lillian Fulata Shawa Siyuni SC, the Drug Enforcement Commission (DEC) and the former KCM provisional liquidator Milingo appears to have entered an interesting phase.

Milingo has taken the matter to the Constitutional Court claiming he entered into a the plea agreement with State represented by the Attorney General, Solicitor General, and State House staffers led by the Legal Advisor to the President Bradford Machila.

According to Milingo, the plea agreement provides that the if he resigned as provisional liquidator, then DEC should drop all the charges against him pending before court, and endemifies him against any other omission or commission in the performance of his duties as provisional liquidator from the start until the resignation.

It has not been disclosed by Milingo whether the DEC was also a signatory to this agreement or not.

But from last week reaction of the DEC Commissioner General Mary Chirwa to Ms Siyuni, it can be affirmed with a very high degree of certainty that DEC was part and parcel of the plea agreement.

In the case of Faith Musonda, it was the Anti-Corruption Commission that entered into a plea agreement with the accused.

In this case, if DEC was not part and parcel of the indemnity agreement, is the DEC bound by the terms of such an agreement? Or indeed, can the DPP enter into such an indemnity agreement without involving the DEC?

Like I stated in my previous post, although Article 180(7) of the Constitution of Zambia Amendment 2016 provides that the DPP shall not be subject to the direction or control of a person or an authority in the performance of the functions of that office, however, this privilege is not absolute.

There are four limitations enshrined in Article 180(7).

First, the DPP should not excersize powers in a manner that is inimical to public interest. This means that the DPP must show how the indemnity agreement, not to prosecute Milingo for the alleged crimes or indeed any other crimes committed at KCM, is in the best interest of the public.

Second, the DPP should not undermine the administration of justice. This means that the DPP must show how the indemnity agreement does not in any way undermine the administration of justice in the management of or alleged mismanagement of public resources at KCM.

Third, the DPP should not undermine the integrity of the judicial system. The Constitution provides for the judicial system, where alleged offenders must be arrayed before the courts and justice is delivered. Is the indemnity agreement the best available judicial remedy to deal with the alleged crimes, or indeed any other crimes committed at KCM?

And fourth, the DPP should prevent and avoid abuse of the legal process. Clearly, from Article 180(4) it is not the responsibility of the DPP to issue arrest instructions. How come, the DPP gave herself, through the indemnity agreement, powers to issue arrest instructions? Isn’t this abuse of authority?

Finally, is the indemnity agreement runs afoul with the Constitution, is it valid?

What complicates the case before the Constitutional Court is that the Attorney General and Solicitor General were, according to Milingo part and parcel of the indemnity agreement.

Now that Milingo has sued the Attorney General, who was part and parcel of the agreement, is it in order for the Attorney General to represent the people of Zambia in this case? Isn’t the Attorney General or indeed the Solicitor General conflicted? If either of the two represent the people of Zambia in this case, wouldn’t that be as good as undermining the judicial system?

As stated in my previous posts, the management of the KCM liquidation, both under PF and UPND has been a total disaster. We advised how best to deal with the liquidation but our advice fell on deaf ears. Every move made by Government in both regimes has ended up bringing even more and more complications. Yet, there were less costly, less complicated ways out but we proposed but ignored.

Let see how this whole issue ends. But clearly, we foresee more complications to come from Vedanta when the Arbitration process is concluded.