I write to your high office to express my displeasure against the Learned Magistrate His Worship Exnorbit Zulu during the course of delivering judgement at Lusaka in Lusaka District as per the above cited case.
The brief background of this case is that the named Magistrate on 2nd August, 2018 whilst delivering judgment in which one Henry Kapoko was convicted and sentenced to a term of eighteen years in prison for theft of over Six Million, Eight Hundred Kwacha (K6.8 Million) public money when they were employees of the Ministry at the time Health at the time. The Magistrate ostensibly did proceed to make an order for the arrest of the then key state witness who is now State House Principal Private Secretary a Dr. Simon Miti to answer the alleged corruption related charges brought out at the time he served as Permanent Secretary. Additionally he claimed that Dr Miti was aware of what was transpiring in the Ministry he feigned “ignorance” and that he was an accomplice who had an interest to serve.
I’m fortified by the provisions of Article 2 of the Constitution and for the purposes of convenience the portion are reproduced and provides as quoted herein below:
“Every person has the right and duty to—
(a) defend this Constitution; and
(b) Resist or prevent a person from overthrowing, suspending or illegally abrogating this Constitution.”
Further Article 118 (1) of the Constitution which entrenches the principles governing judicial proceedings in clear and unambiguous terms profess to state clear that the judicial functions are to be exercised within the ambit of justice and the people of Zambia are reserved with the exclusive and inherent right to hold the Judiciary accountable. The relevant provisions inter alia states:
(1) The judicial authority of the Republic derives from the people of Zambia and shall be exercised in a just manner and such exercise shall promote accountability.
With regard the contents of the judgement, the Criminal Procedure Code, Chapter 88 of the Laws of Zambia is instinctive, informative, instructive and illustrative regarding the foregoing. Without prejudice and with respect to their independence in the course of delivering judgements, the Magistrates or Judges are required strictly to confine themselves on the indictment and it is not procedurally provided for them to discuss matters outside the indictment. The applicable provisions are to be found under section 169 of the Criminal Procedure Code whilst quoting relevant provisions states as follows:
(1) The judgment in every trial in any court shall, except as otherwise expressly provided by this Code, be prepared by the presiding officer of the court and shall contain the point or points for determination, the decision thereon and the reasons for the decision……………….. at the time of pronouncing it.
It is inconceivable to assume that the legislature intended that the Magistrate or presiding officer can have all the liberty to make adverse proclamations against the individual who was not indicted before the Court and if that was the case, the provisions would have expressly stated so.
With regard to commencement of criminal proceedings there is no identifiable authority which justify any act by the Court to blow the trumpet regard any act that ought to be prosecuted. Proceedings can only be commenced following the arrest without a warrant and complaint before the Magistrate having jurisdiction and not at the instance of the directive from the Court save for the contempt which is committed in the face of the court. Any act done to the contrary would unavoidably lead to the regrettable miscarriage of justice.
In order to preserve an apprehension of impartiality, the judicial officer is required to refrain from any act that would be calculated to have an apprehension of subjectivity. It is thus expected to separate investigative or prosecutorial with concurring adjudicative functions.
In the jurisprudence of criminal justice system on the society that thrives on the adversarial system, the Judiciary inclusive of any judicial officer is bound to play a reactive and proactive role in so far as the commencement of proceedings is concerned. It is thus not procedurally correct for the court to incite an arrest of any person who is likely to be the party to the proceedings. It is acts of this nature which compel members of the public to invalidate the trust reposed in the particular judicial officer and the Judiciary at large.
The pronouncement by the learned Magistrate to possibly arraign the said Dr. Miti is legally flawed and prejudicial to the interest of justice. The Court would have allowed to be used as a forum to persuade acts that are grossly prejudice. The order to have the named person unequivocally and evidently coincides with the functions of the Director of Public Prosecutions in whose the powers to institute or undertake criminal proceedings is irrevocably delegated to Honorable Zulu in that case turned himself into the complainant and prospective prosecutor. The statement even though has not been tested through the judicial process will in uncertain terms paint Dr Miti darker than the color as it is now in public domain. This non-existent procedure did not only exhibit high level of malice on the presiding Magistrates but gross misconduct as the act was deliberately prejudicial and in consequence undermine the integrity of the judicial process.
In light of the above, it is my considered view that there is a prima facie case of professional misconduct and incompetence in Honorable Zulu as that did not only constitute a misdirection on his part but neglect to follow the laid down rules of criminal procedure. It is further my considered view that this grave error relating to the basic rules related to criminal proceedings, seemingly depict representation of acts of bias and impropriety which should be redressible by initiating the complaint before your Commission.
It is against this background that I seek the indulgence of your high office and the Commission at large to take or necessary actions and therewith institute an inquiry to hear the allegations raised therein. It is further my humble plea that on receipt of this letter, the said officer be suspended from performing his duties until this matter has been settled or in the likely event the complaint abandoned. It is my belief that the expedient act will help the preserving the integrity of the judicial process thereby upholding public confidence in the Judiciary.
I now look forward for the indulgence of your high office as soon as reasonably and practically possible within the reasonable time.
MARVIN CHANDA MBERI.
Phone number: 0962023890.
Email: [email protected]
CC: The Chief Justice of the Republic Of
Zambia, Her Ladyship Irene Mambilima;
The Chief Administrator of the Judiciary;
The Judicial Complaint Commission;
The Attorney General;
The Director of Public Prosecutions (DPP);
The Laws Association of Zambia;
Dr Simon Miti;
My Advocate’s File.