TRANSPARENCY International Zambia (TI-Z) says there is no provision in the Constitution, or in any other piece of legislation, where the office of the Director of Public Prosecutions (DPP) is given powers to instruct law enforcement agencies on when to arrest or investigate suspects.
DPP Lillian Siyunyi has expressed displeasure at the action of the Drug Enforcement Commission (DEC) to re-arrest former Konkola Copper Mines (KCM) provisional liquidator Milingo Lungu, further telling DEC Director General Mary Chirwa to urgently exculpate herself for re-arresting Milingo on the same charges without receiving instructions from her office.
But commenting on this in a statement, Monday, TIZ executive director Maurice Nyambe reminded the DPP that some form of separation of powers existed when it came to criminal matters.
“TIZ notes with dismay that the Director of Public Prosecutions (DPP) has instructed the Drug Enforcement Commission (DEC) to give reasons for the decision to re-arrest Mr Milingo Lungu. According to the story in today’s edition of the News Diggers newspaper, the DPP wrote a letter to the Director General of the DEC demanding that the DEC should urgently explain the basis for re-arresting Mr Milingo Lungo following the DPP’s Nolle Prosequi. If the contents of the letter are indeed true, it casts serious doubts on the DPP’s real motive in this matter. TI-Z would like to remind the DPP that some form of separation of powers exists when it comes to criminal matters, which entails that the roles of investigating, arresting and prosecution are not performed by the same entity,” read the statement.
TI-Z said it was surprising that the DPP was claiming powers which her office did not possess.
Nyambe argued that there was no provision in the Constitution where the office of the DPP was given powers to instruct law enforcement agencies on when to arrest or investigate suspects.
“We would therefore like to caution the DPP against abrogating this constitutional principle by acting outside the parameters of what the law provides for the operation of the DPP. According to Article 180 of the Constitution of Zambia (Amendment Act number 2 of 2016), the DPP has powers to discontinue criminal investigations at any point before a judgement is made. There is, however, no provision in the Constitution, or in any other piece of legislation, where the office of the DPP is given powers to instruct law enforcement agencies such as the DEC on when to arrest or investigate suspects. TI-Z is therefore astonished that the DPP is claiming powers that her office does not possess. Furthermore, Section 85 (1) of the Criminal Procedure Code Act allows law enforcement agencies to arrest suspects without the consent of the DPP,” he stated.
Nyambe said the DPP should exculpate herself in the eyes of the public by explaining the rationale behind the Nolle Prosequi.
“It is the decision to prosecute a case that rests with the DPP and not that of arresting suspects. In light of this, TI-Z is of the view that rather than calling for the DEC to exculpate themselves concerning the re-arrest of Mr Lungu, it is the DPP who needs to exculpate herself in the eyes of the public by explaining the rationale behind the Nolle Prosequi that she entered in this case. The DPP is a public office, and regardless of the security of tenure and the discretionary powers vested in it, the office of the DPP should be seen to be always acting in public interest and in the interest of justice,” he said.
Nyambe further called for the amendment of the Constitution to enhance the transparency and accountability of the DPP.
“TI-Z further reminds the UPND administration on the need for legal reforms to allow for a more meaningful and effective fight against corruption. Having noted the limitations imposed on the fight against corruption by the discretionary powers vested in the office of the DPP, including powers to discontinue cases at will, there is need to amend the Constitution and other related laws to enhance the transparency and accountability of the DPP and to strengthen the independence of law enforcement agencies,” stated Nyambe.