Maren de Klerk
Understanding the manoeuvers to remove the DPP from office
Despite the security of tenure provided to the office of the Director of Public Prosecutions (DPP), nearly every new president of Zambia ousts the DPP they find in office and installs their own to help them deal with their political opponents and cover their own crimes. This is the main motivation behind the latest campaign to oust current DPP Lilian Siyunyi from her position. To state this point with confidence is not to make a verdict on the capacity of Siyunyi to perform her job; it is to acknowledge the political nature and roots of the coordinated calls for her removal from office. I have previously written about how the current DPP has singularly failed at the main task of her job: assess those cases which, when brought to trial, have a likely chance of a successful prosecution. Since assuming office in October 2016, Siyunyi’s failures have been twofold.
The first has been a repeated failure to stand up to the executive, especially in relation to pursuing politically sensitive cases that she surely knew had no chance of a successful prosecution. Almost all politically sensitive cases she advanced embarrassingly ended in an acquittal of the accused or a nolle prosequi. Her 2017 decision to have then opposition leader Hakainde Hichilema committed to the High Court for treason over a traffic incident is probably the worst decision to be made by a Zambian DPP in living memory. The case was clearly meant as a political vendetta and the courts were simply used to punish Hichilema for not recognising Edgar Lungu’s presidency. No competent lawyer, let alone the country’s highest public prosecutor, would have sanctioned such a case, one which provides a perfect example of how politicians interfere with the functions of the DPP.
The second failure has been a consistent inability to pursue cases involving those linked to the ruling authorities and a failure to protect those on the receiving end of plots or threats from those in power or those aligned to them. Siyunyi’s failures are the more lamentable as it was thought that the appointment of a young woman to the office of the DPP would bring energy and dynamism, not subservience.
That said, the current calls for the removal of Siyunyi from her position have little to do with her failings. As I demonstrate how in greater detail below, the glaring defects in the charges of misconduct and gross incompetence levelled against her and the identity of the people hoisting the ‘DPP must go’ placards (cadres and politicians from the ruling party) reinforce this point. In my view, the campaign to oust Siyunyi is primarily motivated by political considerations, centred on the desire to replace her with a pliant DPP who will not stand in the way of the coordinated efforts by the governing United Party for National Development (UPND) to use the criminal justice system to paralyse, weaken, or dismantle opposition parties, especially the Patriotic Front (PF), through the courts of law and dubious charges. As a keen observer of Zambian politics, I am convinced that Siyunyi will be flushed out of office in a matter of days either through forced resignation or induced early retirement – no impartial tribunal or official body can convict her of incompetence or misconduct using a single case. Seen from this context, the central issue at hand, which warrants sober discussion, is not Siyunyi. It is about how successive ruling elites have turned the office of the DPP into a political tool to be deployed against opponents whenever it is in their interest to do so. Before explaining why the complaints against Siyunyi are political, it is important to sketch the chronological evolution of events up to this point.
The Drug Enforcement Commission (DEC) arrested Milingo Lungu, the provisional liquidator of Konkola Copper Mine (KCM), on charges of theft and money laundering involving K4.4 million. To provide context: KCM was Zambia’s leading mining employer before the PF government grabbed the mine from its owners, Vedanta Resources, in May 2019 and attempted to liquidate it, a move that forced the latter to seek international arbitration in South Africa. Lungu was then appointed KCM provisional liquidator after the state-owned ZCCM Investment Holdings asked the Lusaka High Court to grant an order to appoint him to the position.
Public calls for Lungu to be removed from his position intensified following his arrest on a separate charge of theft of K17,250,000 from KCM. In response, Minister of Mines Paul Kabuswe disclosed that Lungu can only be removed from his position through a court process. “The liquidator is not appointed by the government; he is appointed by the court. So, if we were to remove him, we [would] have to use the court process or [induce him] to tender his resignation. But very soon, you will hear some announcements. I cannot give you all the details because issues that involve [the] courts are quite sensitive,” said Kabuswe.
It is important to pause here and provide context to Kabuswe’s remarks. In a rule-based political system, following the laws does not always bring the outcome people want. Unfortunately, the situation in Lungu’s case was such that the government, lacking the power to just fire a court-appointed liquidator, could not do much outside the law. If anything, Hichilema and his team were as keen as anyone else to see the back of Lungu, an extremely unpopular figure on the Copperbelt and among mining companies, because his exit was central to the resolution of the long-running issue of KCM.
If mining is the mainstay of Zambia’s economy, KCM is the mainstay of the mining industry. Unless the issue is resolved – first by removing the court-appointed liquidator or asking him to resign and then addressing the bigger problem of arbitration with Vedanta– the mining sector will continue to suffer. The government’s negotiations with the International Monetary Fund may also hinge on the resolution of the problems in the mining sector. Without resolving this crisis, the Hichilema administration’s efforts to revive the economy could fail. The annoying thing is that the PF did have a good case against Vedanta, one of the world’s worst mining companies, but they handled the issue in a rash and haphazard manner and so have left an even bigger mess for the current administration to deal with.
Reports emerged that the government was conducting high-level negotiations with the KCM provisional liquidator aimed at inducing him to resign from his court-appointed position. Solicitor General Marshal Muchende was said to be leading these discussions, in which Lungu was demanding immunity from prosecution and a paycheque in return for his smooth exit – terms that Hichilema is reported to have been opposed to.
Lungu quit his position, over six months after the inauguration of Hichilema. “This serves to inform you that I have with immediate effect resigned as Provisional Liquidator of Konkola Copper Mines Plc pursuant to Section 67(7) of the Corporate Insolvency Act No. 9 of 2017,” wrote Lungu in a letter dated 17 March 2022 addressed to KCM official receiver Natasha Kalimukwa. Although he provided no reason for his decision, opposition Patriotic Front Publicity and Information chairperson Raphael Nakacinda was to claim later that Lungu’s exit was the culmination of the long-running negotiations between the accused and members of the executive.
5 April 2022
At the first court appearance since Lungu’s resignation, DPP Siyunyi, using the constitutional authority vested in her office, entered a nolle prosequi in respect of the case in which the former KCM liquidator was charged with theft and money laundering involving K4.4 million. A nolle prosequiis a legal notice by the prosecutor to discontinue proceedings in a criminal matter that is before court. Unless employed for political reasons, it is normally used when there is insufficient evidence to ensure successful prosecution of the relevant case and is not subject to control or review by the courts. The decision to enter a nolle prosequi does not stop a subsequent prosecution based on, say, the discovery of fresh substantive evidence. Like in previous cases, Siyunyi offered no reason for her decision – Zambian law does not oblige the DPP to do so.
7 April 2022
Arising from the nolle prosequi entered in the case of Lungu, the DEC, while the physical docket of the Lungu case was still with the DPP, re-arrested the former KCM liquidator for theft of K4.4 million, money laundering and possession of two properties, located in Lusaka, suspected to be proceeds of crime.
Surprised by the rearrest of their client on the very indictment for which a nolle had been entered, Lungu’s lawyers approached the DPP for an explanation. Siyunyi reportedly expressed ignorance of the new development since the DEC were by then yet to furnish her with any new details about the case.
Later on the same day, the DEC finally wrote to the DPP to inform her of the rearresting of Lungu, who was remanded in custody, but provided neither new evidence nor a fresh docket in support of the reinstatement of the accusation of theft of K4.4 million for which the nolle was entered.
‘RE: Milingo Lungu: Resubmission of Docket
Kindly refer to the above subject. Arising from the nolle prosequi entered in the case of Milingo Lungu for theft of k4, 400, 000. 00, money laundering and possession of property reasonably suspected to be proceeds of crime involving property at stand number 6432/36433 in Mass Media area and property number 7934 in Sunningdale, Chipushi road in Lusaka.
The accused person has been remanded in custody, awaiting court appearance. Kindly find attached hereto a copy of our earlier correspondence which submitted the physical docket, for your ease of reference. Submitted for your action”, read the 7 April 2022 dated letter from the DEC’s Kwaleyela Mukelabai, writing on behalf of the Director General Mary Chirwa, to Siyunyi.
In response both to the commission and the earlier concern expressed by Lungu’s lawyers, the DPP wrote to the DEC on the same day seeking an explanation on why they had rearrested Lungu on the same matter over which her office had earlier entered a nolle.
“Reference is made to your minute dated 7th April instant referenced DEC/AMLIU/FIC/10/21.Furthermore, my Office has received information from the lawyers, Messrs. Sakwiba Sikota, SC and Moses Chitambala, representing the above person that he has been re-arrested on the same charges that my Office entered nolle prosequi.
My Office has not issued any instructions for you to re-arrest on the same charges. Your actions are ultra vires the Constitution which gives this Office the mandate to give instructions on prosecution of matters. You are been (sic) called upon to urgently explain the basis of your actions which are an abrogation of the supreme law of the land, the Constitution of Zambia. Kindly be informed that on matters of prosecution you do not act independent from this Office. You are guided henceforth. I await your urgent response”, the DPP wrote in response.
12 April 2022
Civil rights activist Chama Fumba, popularly known as Pilato, wrote to the Judicial Complaints Commission (JCC), asking the body to remove DPP Siyunyi for alleged gross incompetence misconduct over her handling of the case involving Lungu. Fumba argued that the decision to enter a nolle in the Lungu case was against the public interest and that the DPP has no powers to instruct law enforcement agencies on which persons to arrest or not to arrest.
Later, on the same day, UPND cadres led by Lusaka Province chairperson Obvious Mwaliteta held a press briefing at which they gave DPP Siyunyi a 48-hour ultimatum in which to resign or risk being hounded out of office. Mwaliteta claimed that Siyunyi was likely to undermine the anti-corruption drive if she remained in her position.
14 April 2022
UPND Lusaka district information and publicity secretary Matomola Likwanya asked the police to arrest DPP Siyunyi for the offence of conspiracy to defeat the course of justice over her handling of the matter relating to the former KCM provisional liquidator. In a letter to the Inspector General of Police dated April 14, 2022, the ruling party official accused Siyunyi of colluding with Lungu and his lawyers to discontinue the criminal charges against the accused.
I predict that DPP Siyunyi will either be arrested or bullied into resigning or taking early retirement to pave the way for the appointment of a DPP who will be seen by the executive as one of their own – possibly a lawyer who has previously represented the UPND or Hichilema. As stated earlier, every new president of Zambia, apart from Rupiah Banda, has on assuming office devised a strategy to get rid of the DPP appointed by their predecessor and install their own to cover their possibly corrupt tracks and weaken their opponents.
Following his defeat of founding president Kenneth Kaunda in 1991, Frederick Chiluba moved quickly to replace DPP Gregory Phiri with Samuel Munthali on an acting capacity by appointing Phiri to the High Court. It was only later that Chiluba appointed a substantive DPP in Meebelo Kalima, who was hounded out of office in 1998 through a three-member tribunal and replaced with Mukelabai Mukelabai. After Levy Mwanawasa took office in 2002, he suspended the Chiluba-appointed DPP for allegedly conniving with people on trial for corruption and theft of public funds and appointed a three-member tribunal to investigate him. Mwanawasa’s move followed failed attempts to persuade Mukelabai to resign from his position or take sabbatical leave. Although the tribunal cleared Mukelabai of wrongdoing, it controversially recommended his retirement since, in its judgement, the relationship between the executive and the substantive DPP had broken down. After his initial choice for the position of chief prosecutor, Caroline Sokoni, was twice rejected by parliament for lack of the necessary experience in prosecutions and criminal law, Mwanawasa chose Chalwe Mchenga, who had served as Mukelabai’s deputy.
Following his victory in the 2008 election, president Rupiah Banda maintained Mchenga as DPP. After the PF won power in 2011, and as recently disclosed by Wynter Kabimba, President Michael Sata induced Mchenga to vacate the position by appointing him as judge of the High Court to pave the way for the employment of Mutembo Nchito (executive choice of DPP).Less than two months after he succeeded Sata in January 2015, president Lungu suspended Nchito and set up a four-member tribunal to investigate him for alleged misconduct based on two charges. The first involved Nchito’s irregular entry of nolle prosequi, allegedly in abuse of his power, including in a criminal case against him.
The second related to his decision to take over and subsequently discontinue prosecution of criminal cases in matters in which he allegedly had a personal interest. The president’s move followed unsuccessful attempts to persuade Nchito to resign instead of facing an acrimonious removal from office. After the tribunal completed its work, president Lungu informed Nchito that he had relieved him of his position as DPP, on the recommendation of the tribunal, whose findings and report have never been made public nor availed to Nchito himself(further proof of executive meddling in the operations of the DPP).He then proceeded to appoint Siyunyi, the current DPP who now faces two allegations of gross incompetence and misconduct.
The first relates to her entry of the nolle prosequi in the above-mentioned criminal case involving Milingo Lungu allegedly in abuse of her power and violation of public interest. The second charge impugns wrongdoing on the basis that the DPP interfered with the power of the DEC to arrest suspects by asking the body to explain its decision to rearrest Milingo Lungu on the same charges she had discontinued earlier. Both are extremely weak charges, which any impartial body should have no trouble in dismissing. The first, concerning the DPP’s power to enter a nolle prosequi, has already been addressed by the Constitutional Court in the 2017 case of Milford Maambo and Others v The People.
As O’Brien Kaaba and Pamela Sambo argued when commenting on that case, the Concourt “held that the DPP enjoyed absolute or unfettered discretion in the exercise of their powers, and was not even answerable to the courts. Although we do not agree with this decision (because in a constitutional democracy power is given for purposes consistent with underlying constitutional values), it represents the current position of the ‘law’ until a future court reverses it. This being the ‘law’, it follows that how the DPP exercises power under the Constitution is unassailable. In granting nolle prosequi and discontinuing criminal matters, [the] DPP was simply exercising [t]his unfettered discretion”.
Simply put, the DPP’s power to enter a nolle, which Siyunyi exercised in discontinuing Milingo Lungu’s case, is not subject to review by anyone. It is unrealistic to call for the removal of Siyunyi for applying the authority vested in her office when the most superior court on constitutional matters previously ruled that the DPP has unlimited discretion which even the court itself cannot question. It is shortsighted to focus on Siyunyi’s removal. A more urgent concern is the need to review the current law which gives the DPP absolute discretion to enter a nolle prosequi without any form of accountability and giving the court the opportunity to determine whether the reasons provided are in the interest of justice, judicial integrity, and the public. If this problem is not rectified, the next DPP will abuse this discretion and undermine public interest for the benefit of the ruling elites.
The second complaint – that the DPP interfered with the power of DEC to arrest a suspect – is most unconvincing, given the exchange above between the two offices, which suggests that both are working to secure the aims of justice. If anything, it is the DEC that has interfered with the DPP’s constitutional functions by rearresting on the same charges – without providing any new substantive evidence – the person who has been released on a nolle prosequi. (If the police had moved to rearrest Hichilema on the same treason charges he was arraigned on a few days after Siyunyi entered the nolle prosequi that freed him from a four-month prison ordeal in 2017, would such a move amount to the police carrying out their job or undermining the DPP?)
It is important to note that Siyunyi never took issue with the new charge of property suspected to be proceeds of crime. Her concern in the letter was about the same charges for which she had entered a nolle prosequi. Before rearresting Lungu on the K4.4 million money-laundering indictment, the DEC should have obtained the docket from the DPP, consolidated the file with new evidence that would warrant the rearrest of the person, and then moved to act. By rearresting Milingo Lungu on the same charge without new evidence, the DEC has shown contempt for the DPP’s office and manipulated public opinion in a way that has made Siyunyi’s position politically (but not constitutionally) untenable.
Of course, this works to the UPND’s advantage as what matters to them is not whether the process and grounds of the DPP’s removal from office are proper. What the ruling party wants is for Siyunyi to go, by whatever means, so that the president can replace her with someone who will do their bidding, much in the same way that Siyunyi is generally seen as having done the bidding of the PF. Unlike the PF, who masked their interest in ousting Nchito from his position as DPP by using proxies of the ruling party, the UPND are blatantly – and perhaps methodically – using party officials and cadres to seek Siyunyi’s removal. This speaks to the political nature of the case more than the constitutional and legal merits of the allegations levelled against her.
In my view, the campaign for the removal of Siyunyi from her position as DPP is a political project that has little to do with her potential ability to frustrate the fight against corruption. By remaining in her position, Siyunyi is making it difficult for the UPND to coordinate their effort to dismantle the main opposition party by using the courts of law and political offences targeted at potential PF presidential aspirants and other opposition leaders. On paper, the position of DPP is in some ways more powerful than the President of Zambia. The fear of having an effective, independent, and professional incumbent chief public prosecutor explains the desire by successive presidents to have a pliant individual who can do their bidding. This is what we are witnessing today. Who will be the UPND’s DPP?
Well, Siyunyi is being bullied into resigning or retiring – and will be gone soon. She may even be arrested by the police as part of the efforts to force her out of office. Will the fight against corruption gain momentum with her inevitable exit? I am not persuaded. Any anti-corruption campaign in Zambia today that does not include the investigation and possible prosecution of Edgar Lungu – a man who presided over a corrupt administration and reportedly only agreed to step down after Hichilema promised him never to lift his immunity from prosecution – is not complete and wholly legitimate; it is simply a political ploy to weaken the PF.