The DPP has the right to discontinue a criminal case because of public outcry even if she has evidence that you are guilty, says Justice Minister Given Lubinda.
And Lubinda says the Constitutional Court ruling compelling ministers who stayed in office after dissolution of Parliament to pay back is unfair because they were not heard.
In an interview with ZNBC on Tuesday, Lubinda said the DPP could decide to discharge a guilty person if it was in public interest.
“When the DPP receives the indictment, they also read and say ‘is this a matter that we can win’? If they think they can’t win, they don’t proceed because they don’t want to be embarrassed or waste the time of the person who they take to court. If they are convinced this is a matter that they can properly prosecute and acquire a conviction, they will proceed but during the case hearing, at the start or at the end or at any point when the DPP chooses that ‘well, maybe there is a lot of outcry in the public, this is a matter of human rights or this is a matter on which we can build our democratic credentials, we don’t want to proceed, we don’t want to have any record of having people incarcerated on the basis of treason’, because the DPP can decide that as a country, we don’t have any person now who is facing death sentence because of treason so let’s not dent our image, this person may have done this but for the sake of maintaining a clean record, let’s release this person. The DPP can decide. That’s on a matter of public policy,” Lubinda said.
“So my only advise to our citizens is, if you haven’t secured an acquittal on a matter on which you have been charged for a criminal offense, then either you are being prosecuted or the matter is still being investigated, especially if you are on a nolle. And if you are on a nolle, please, make sure that you don’t commit another offense which will lead you back in the court because the two may now be brought together.”
He said it was not even necessary for those who had been discharged on nolles to brag about it because they could be arrested.
“So those who are hanging around with nolles on their heads, they mustn’t dare the DPP by saying ‘me I was innocent that’s why they released me’ because you might just hear one day that the DPP is looking for you because they have got more evidence. And you are arrested again on the same charge. So for me my dear citizens, I don’t think it is even necessary for me to even comment on whether there was credibility or there was no credibility. The only thing I can say is that the police, in arresting a person, satisfy themselves that there is case that they can present before the DPP,” he said.
“The police were forced to pick up Hakainde because of his conduct. They didn’t pick him up because he is Hakainde. Had they picked him up because he is Hakainde, then you could say ‘maybe there was no merit in picking him up’. But they picked him up and they said, he committed an act which in their view was tantamount to treason. And the decision to enter a nolle in accordance with our constitution, you know, people like to say ‘rights, rights’ without even considering obligations. The Constitution of Zambia says that the Director of Public Prosecutions shall be responsible for all criminal prosecutions in the country.”
And Lubinda said the ConCourt’s ruling on former ministers could have a lot of ramifications which government was still studying.
“The issue of ministers staying on office after the dissolution of parliament is a very important matter…And commenting as Minister of Justice, I will borrow the words of her honour the Vice-President [Inonge Wina] when she was asked that question in parliament, she said we were waiting to receive the judgement from the ConCourt for experts in government to study it to see what are the ramifications of this judgement? We are asking number one, how shall such a judgment be enforced? Can it be enforced without creating other problems such as what will happen to those people who performed the functions? They worked! Now there is this judgment that they must pay back. Won’t they also make a counterclaim that they performed government duties? The second ramification is the modus of collecting the money. How should we make these people pay? Shall we tell them to pay at once? Shall we give them loans? And if you are going to give them loans, because some of them are not in employment, for how long will it take for them to pay back? All these are things that government must look at before a decision is made,” he said.
Lubinda said on a personal note he felt the ruling was unfair as he was not given a chance to be heard.
“But beyond that, this is also a personal matter. I was one of the 64 who worked for those three months. I also have to be given an opportunity to be heard. Have I been heard over this matter? I wasn’t asked to go to court to go and air my views. This is another aspect to it. The last time when the court made the ruling, they indicated that the Attorney General, who is the advisor of Cabinet, could not go to court and represent individuals, those 64 individuals because they were not ministers at all but individuals. The one who was cited is me, Given Lubinda, it wasn’t the minister. That was the judgment of the Constitutional Court. However, the question that arises is, what about Given Lubinda? Has he been heard? Was Given Lubinda given an opportunity to have a representative to go and argue his case? These are all the ramifications that are to be studied before government can make a decision,” he said.
“The truth of the matter is that government has now received the judgment, it is being studied and after these questions have been answered, government, through the spokesperson or through the Minster of Justice will inform the nation. For now, all I can say is, these are the issues that government wants to study. It is not a matter of us just saying ‘yes we have got the judgment and let’s go and announce and say pay back’ we must think about all these different implications of that judgment.”
Meanwhile, Lubinda also insisted that there was no active presidential election petition in any court.