FORMER Finance Bank (FBZ) chairperson Rajan Mahtani has been set free by the Lusaka High Court from being prosecuted by the Director of Public Prosecutions (DPP) on two counts of alleged forgery of the share transfer forms involving Zambezi Portland Cement Limited (ZPC).
This was after it was established that prosecuting Mahtani was ultra vires because the DPP had earlier sought guidance from the Attorney General (AG) who advised against prosecuting Mahtani on the charges .
In his ruling High Court Judge Mwiinde Siavwapa stated that in terms of the current public policy on the treatment of suspects, the law empowers the DPP to seek the Attorney General’s guidance and once he does so and gets a directive he is bound by it.
It follows therefore that as long as that provision of the law exists, a decision made under that provision cannot be set aside by anybody.
Justice Siavwapa indicated that it was however the position that since this provision was to be found in the constitution, it cannot be amenable to adverse interpretation by the judicature.
Justice Siavwapa further stated that he had also taken note of the submissions by the learned Attorney General bordering on both him and acting DPP disowning the decisions of the holders of their respective offices at a time with much concern.
Justice Siavwapa said the DPP had a duty to consult Mathani before making the decision to prosecute him, hence the decision not to consult him was irrational and unreasonable.
He however said Mahtani’s grounds of appeal only succeeded on ground one but failed on the other two grounds and he accordingly removed the proceedings into the High Court and quash them accordingly for being ultra vires to the Constitution and illegal.
Justice Siavwapa did not order for any damages, stating that there were no injuries caused following Mahtani’s arrest as the prosecution was neither malicious nor without cause.
The ruling came after Mahtani filed an application for leave to start judicial review against the forgery charges regarding the share transfer forms of ZPC into Finsbury Investment Limited.
In his notice for leave to apply for judicial review filed in the Lusaka High Court, Dr Mahtani was challenging the decision by the DPP on June 1 this year to prosecute him on two counts of alleged forgery of the share transfer forms of ZPC, the prosecution which was terminated by the DPP on April 30, 2012, on instructions of the Attorney-General.
He contended that the decision to prosecute him was ultra vires as the DPP was bound by the direction given by the Attorney-General.
Since the applicant was due to enter plea on June 29, 2015, he asked for a stay of the decision and proceedings to prevent his application for judicial review from being rendered moot in view of the fact that the applicant has prayed for orders of certiorari and prohibition.
Certiorari is an order issued by a superior court directing a lower court, tribunal or other public authority to send the record of a proceeding for review.
He said unless the decision and all proceedings were stayed, there will be nothing to quash and prohibit in the event that he succeeds in his case.
Dr Mahtani said it would be unfair and contrary to public policy to prosecute him when there was an agreement contained in a letter dated March 20, 2012 from the Attorney-General to his lawyers not to probe him.
He argued that his criminal prosecution was an abuse of the court process.