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LAZ can’t represent lawyers who have been sued by clients – MwenyeBy Mukosha Funga on 7 Mar 2017
Former Attorney General Musa Mwenye says LAZ decided to represent Nchima Nchito in his personification case because the charges arose from the execution of his duties.
Recently, Lusaka Lawyer Frightone Sichone, wrote to LAZ president Linda Kasonde challenging the association’s decision to represent Nchima, a State Counsel, when he was denied assistance in 2008 when Mwenye was its Honorary Secretary.
“When I asked for assistance, LAZ made it clear that they cannot interfere with the judicial process. It indicated that a lot of its members were appearing in various courts of law but that any intervention in any one case would put the association’s interest in that matter into question” Sichone wrote.
Sichone wondered whether LAZ was representing Nchima because the current honorary secretary was his sister.
“The honourary secretary of LAZ, Sashi Nchito, is a biological sister of Mr Nchima Nchito. Could it be the reason why LAZ has now decided to offer protection to its members at this time while the same was not available to me when I needed it because I did not have a relative in the LAZ executive at the time” wrote Sichone.
But in a letter to Kasonde today titled ‘The Role of the Law Association of Zambia (LAZ) in protecting interests of its’ members – Frightone Sihcone’, Mwenye explained that LAZ decided not to represent him in 2008 because his employer had instituted a criminal complaint against him unlike in Nchima’s case whereby he was slapped with a criminal charge whilst doing his job.
“I refer to the above caption and to letter of the 6th instant, from Mr Sichone to yourself which was reported in today’s Daily Nation newspaper Vol. 3 issue 1604. In his letter, Mr Sichone makes specific mention of me and my role in LAZ as Honarary Secretary at the time LAZ decided not to intervene in investigations into his duties as Commissioner of Lands, a position he held as a public officer. Mr Sichone asks an important question, what was the difference between his situation and that of State Counsel Nchima Nchito over which LAZ has appointed me as Counsel. I feel duty bound to respond to this important question, particularly as I was custodian of the LAZ records at the time,” Mwenye explained.
“The difference is in fact extremely elementary in my humble opinion. Mr Sichone was a public officer whose employer had instituted investigations into his conduct as a public officer. He was an employed advocate and, his own client, the government, decided to investigate him and, I believe subsequently laid a criminal complaint against him. To the best of my recollection, except in the most exceptional circumstances, LAZ does not intervene to protect lawyers from complaints from their own clients. Certainly, in my time on the LAZ Council and ultimately as LAZ president, LAZ did not shield any of its members from complaints from their own clients, unless there were compelling and exceptional reasons for doing so. I recall that there were no exceptional reasons to warrant intervention in Mr Sichone’s case.”
Mwenye recalled that one of the reasons LAZ could not represent Sichone was that he had allocated a piece of land to LAZ which he had already allocated to someone else.
“In fact, there was one very important reason why LAZ could not intervene. Mr Sichone, as Commissioner of Lands, had allocated a piece of land to LAZ for the construction of the LAZ house. The LAZ Council, later discovered that this piece of land was under investigation for a prior allocation that Mr Sichone had made, and LAZ could not be seen to be involved in what, the investigations at the time considered to be a cover up. Mr Sichone may wish to clarify this issue,” he wrote.
Mwenye noted that in Nchima’s case, his client was neither complaining against him nor had he commenced a criminal proceeding against him.
“Although I believe in the merits of Mr Nchito’s case, I cannot comment on the merits of Mr Nchito, SC’s case, but I can say that I accepted instructions from LAZ because I believe that in his case, the position is different. Mr Nchito, SC is representing a client and in the course of his duties, his clients’ opponent has commenced criminal proceedings against him. Mr Nchito’s client is not complaining against him nor has he commenced a criminal complaint against him. This case is in fact peculiar,” he stated.
Mwenye also recalled another instance when LAZ had to move in to protect the integrity of the profession.
“You will recall madam president that when Mr Stephen Lungu was president, I was appointed by LAZ to join the case of the People v Mohan Matthews in order to protect the integrity of Mr Robert Simeza, SC, who had come under, what LAZ considered, attacks for simply doing his job as a lawyer. On the day I placed myself on record, Mr Stephen Lungu was in court robbed, and placed himself on record as LAZ president. I duly represented the interests of the profession in that case, as I intended to so in the case of the People v Nchima Nchito, SC. The Learned Attorney Mr Likando Kalaluka, SC, will recall this case because he, together with Mr Bonaventure Mutale, SC were Mr Simeza SC’s opponents in the matter,” wrote Mwenye.
“In this regard, my views are that LAZ has in the past moved in to protect the integrity of the profession, whenever the ability of lawyers to fearlessly and independently defend their clients has been at threat and I have been privileged to have represented the association in the past. Finally, I wish to clarify that I have represented LAZ on several matters and at no time, has LAZ paid me for my services. The case of The People v Nchima Nchito, SC is no exception. I believe the many lawyers who have represented the association have in the vast majority of cases done so, with no payment whatsoever and this is as it ought to be. I trust that I have offered some clarification in service to the profession.”
Nchima is accused of posing as an Advocate of Post Newspaper (in liquidation).
“On dates unknown but between 1st November, 2016 and 13th February, 2017, at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia, jointly and whilst acting together with other persons unknown, did personate and being principal partner in the firm of Messrs Nchito and Nchito Advocates as an Advocate of the Post Newspapers Limited (in liquidation) contrary to section 387 (1) of the Penal Code CAP 87 of the laws of Zambia by holding as and acting with Messrs Nchito and Nchito Advocates as an Advocate for the Post Newspapers Limited,” read the indictment in part.
When the matter came up before Lusaka principal magistrate Greenwell Malumani on February 27, Mwenye, appointed by LAZ, stood to represent him
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