The position taken by Government on the Director of Public Prosecutions is irreconcilable, incoherent and depicts selective interpretation and application of constitutional provisions, says Governance activist Isaac Mwanza.
Justice Minister Mulambo Haimbe yesterday said government and State House had no hand in the immunity given to former KCM liquidator Milingo Lungu as Director of Public Prosecutions Lillian Siyunyi acted on her own.
“It is clear that Government is confident that the Judicial Complaints Commission, appointed by the President as Head of Government, will adopt its position and remove the DPP. Government position on the DPP is anchored on the provision of Article 180(7) of the Constitution which makes the DPP not subject to direction and control of any person or authority,” Mwanza stated.
“For Government to conclude based on Article 180(7) that the DPP, who is the Chief Prosecutor for Government, acts unilaterally, without influence from Government is untenable because this same provision exist in the amended Constitution for other constitutional office holders and Commissions yet the decisions by the same offices are influence and entirely adopt the Government position.”
He added: “For example, the Attorney-General, who is the Chief Legal Advisor for Government daily receives instructions from Government, and the Government sees nothing wrong with that even when the Constitution states, in Article 177(4) that: ‘The Attorney-General shall not be subject to the direction or control of a person or an authority in the performance of the Attorney-General’s functions.’”
He stated that Attorney General, who is not subject to control and direction of any person or authority, was himself yesterday at a press briefing in which Government was turning public opinion against its own Chief Prosecutor.
“Since the DPP cannot be sued in own capacity, I wonder then how the Attorney-General can defend the DPP if we attempt to sue the DPP, since the DPP cannot be sued in her own name for official functions,” he stated.
“All our Commissions such as the Civil Service Commission, daily receive guidance, instructions or directions from Ministries before they can perform certain functions such as advertising jobs yet the Constitution, in Article 216(b) states that “ ‘A Commission shall be independent and not be subject to the control of a person or an authority in the performance of its functions’ ’’.
Mwanza stated that Government’s position is therefore irreconcilable in view of the amendments made to the Constitution that extended to the Attorney-General and Commissions, a provision which the Constitution had only applied to the DPP before amendments.
“The removal of the DPP will then require, in the first place, interpretation of Article 177(4) and 180(7) by the Constitutional Court as they apply to both the Attorney-General and DPP, both of whom act on behalf of the same Government, one as Chief Legal Advisor and another as Chief Prosecutor,” stated Mwanza.
