Chiluba defends himself

Chiluba defends himself
By George Chellah
Thursday May 10, 2007 [18:58]

FORMER Zambian president Frederick Chiluba has defended himself against the London High Court judgment by accusing President Levy Mwanawasa and British Prime Minister, Tony Blair of corruption and imperialist conspiracy against him. Dismissing judge Peter Smith's judgment as corrupt and racist, Chiluba accused Blair and the entire British political and judicial system of trying to impose imperialism on Zambia.

Chiluba at a press briefing at his residence also accused President Mwanawasa of championing British imperialism in Zambia. "It is my opinion that both gentlemen Tony Blair and Mwanawasa advanced the popular slogan of corruption to hide their own skeletons in cupboards," Chiluba charged. "They have not provided the necessary leadership they pontificated." Addressing the press at his Lusaka's Kabulonga residence, Chiluba said he was aware that people have made comments about the judgment by judge Peter Smith.

"I may ask them that before they make any other comments to read this judgment. So that the comments may not be out of context. For those who are out there just to say a word or two against me those are welcome. But for others especially fellow Christians before you put a label of criminal on me, of a thief on me please read this judgment objectively and then pray," he said.

Chiluba also said some people were out there to drive a wage between him and PF president Michael Sata. "My brother Michael Sata, Michael Sata is my brother you will not succeed. He may say something wrong or sometimes something bad, but I know that sometimes he doesn't mean what he says. He is my brother... I haven't called him to support me. He is in the struggle and he doing a great job," Chiluba said.

He said ordinarily he would not have appeared for the press briefing but he was compelled to appear because of the gravity of the matter.

Below is the verbatim of Chiluba's press briefing:

The matter is so grave because the passing of this judgment was in a foreign court on foreign soil by a foreign judge on Zambian citizens for crimes allegedly committed, to me this borders on abdication of our independence and desecration of our sovereignity.

But this is a case predetermined by Britain in collusion with the Zambian government to crucify me, as will be shown subsequently. The noisy pontification by British Prime Minister Tony Blair on the war on corruption and President Mwanawasa's zero tolerance policy on corruption are only a ploy to use donor money to destroy African leaders selectively and kill the African destiny.

That is why both Prime Minister Blair and President Mwanawasa's alleged zero tolerance policy have collapsed like the walls of Jericho, because of lack of conviction. Mr. Tony Blair himself is deeply embroiled in the cash for Honours scandal for which the police have interrogated him and the arms sale to Saudi Arabia, which he refused his government to probe.

He does not therefore in my opinion stand any longer on higher moral ground. He is not a role model. On the other hand our own President Levy Patrick Mwanawasa who told God and the world about his Godly zeal for zero tolerance to corruption has now buckled and admitted theft of K3 trillion, which he later scaled down to K36 billion by his own government.

Oh... it is my opinion that both gentlemen Tony Blair and Levy Patrick Mwanawasa advanced the popular slogan of corruption to hide their own skeletons in cupboards. They have not provided the necessary leadership they pontificated. The nation today will recall that on 11th July 2002, President Levy Mwanawasa convoked Parliament to remove my immunity on account of financial transgressions I am alleged to have committed.

Indeed as you all know, contrary to Parliamentary etiquette I and some people I worked with were mentioned by name and crimes allegedly committed were equally tabled in the House. Understandably the allegations have generated anger, indignation and at worst, hatred against me. I have been exposed to considerable public ridicule and contempt.

Contrary to the rules of natural justice either my friends nor I were accorded an opportunity in that August House. Therefore, for all practical purposes we were found guilty both by Parliament and more importantly we were found guilty in the minds of the Zambian people even before all court and legal process commenced. As if that is not enough, the grave allegations leveled against us were removed from Zambia to a British jurisdiction. Where is our independence?

England cannot allow even their thief to be tried outside and if he is tried by null means or by any means they would like them to go and serve their sentence in England that's how much they value people regardless of class. But here, they say we must take this case to British jurisdiction even before we can defend ourselves in our courts of law here at home.

Countrymen and women what are the facts in this case, what are the facts before us? That's why I am saying please read the judgment objectively. This judgment may not require you to be a lawyer just read this judgment and then you will know what we are talking about.

It is important to state that the specific claim against me as pleaded by the Attorney General and as stated in the judgment is... what I mean is that England found that I am liable to pay so much money to the government of Zambia, they asked the Attorney General to quantify how much I am alleged to have stolen and the Attorney General taking into account all this, everything came to the figure of US$ 2,995, 369.00. The money I am alleged to have stolen.

This is the money I am alleged to have stolen or abused by spending it on sending my children to school, buying my elegant clothes, paying lawyers and others. The beauty about this judgment, this is the first judgment when the Attorney General says let him pay US$ 2.9, the judge says no I will ask you to top something up he can't steal only US$ 2 million, its in the judgment. The government of Zambia says no US$ 2.9, the judge says no he must pay just as much as other people. This is a wonderful judgment in your opinion, in mine its all trash!

I have repeatedly stated and the audits have actually confirmed that the Zamtrop account where this money was drawn from had monies from private and third party sources, over and above the amount that government is claiming from me. What happened is simple, when I was interrogated first at Central police here in Lusaka, they asked why I was withdrawing money from the Zamtrop account I said no, I didn't withdraw money from there which was not mine.

It's only that the director general advised and quiet correctly so that I should not open a separate, personal account somewhere supposing some drug trafficker sends money there and tomorrow or the day after I am accused of receiving money laundered.

That is why they asked me to put any gift, any donation from friends and well-wishes into a Zamtrop account so that its checked by the intelligence. And I am telling you that Zamtrop account has been audited by three firms, all audits done for purposes of this case which also form part of evidence. One audit was done by PricewaterHouse in 2003, Maulu Hamunjele Bank of Zambia (BoZ) and Grant Thornton UK, they have all shown that the Zamtrop account had monies from private and third party sources.

More than US $9 million came from private sources. To date my position has not been repudiated or challenged by anyone, not one.

Indeed in the Supreme Court ruling on the Presidential petition - Late Anderson Mazoka and two others Vs L.P. Mwanawasa-pages 129-145) the Attorney General submitted that the Zamtrop account had personal monies for Dr Chiluba and private monies from well-wishers and friends as director general Chungu had said.

It is strange, but quite understandable that this critical evidence was totally ignored when these matters were brought to Parliament and indeed in the present judgment, where judge Smith dismisses the possibility that I could have access to private contributions. As far as he is concerned no President especially in Africa should have any access to contribution, to gifts, we are not entitled according to him... white man Smith.

The assertion that these monies were in a government account and should therefore be deemed as government monies is shallow and inconclusive. Its shallow! The presence of private and personal monies in the Zamtrop account is simple. As I have told you, the director general of intelligenece Mr X.F Chungu advised me that to protect the Presidency, gifts and donations could be managed by the director general on our behalf.

This also served to satisfy the principles of disclosure and accountability although there is no law that obliges the President to disclose.

The disparaging remarks by the judge that I as President could not have received gifts and donations from friends and well wishers is to say the least demeaning. Fellow Zambians, don't forget that lately you the press have been discussing millions of dollars from abroad received by President Mwanawasa in his private account, not in Zamtrop in his private, personal account at Finance Bank. You have been writing this, I don't know what Mr Smith must be thinking about. He must be sick to hear this.

President Mwanawasa at the MMD 2006 party convention in Kabwe also publicly stated that he had received a lot of money from well wishers to help host the party convention. According to judge Smith, no, that is stolen money because President Mwanawasa can receive that money because I cannot receive it. Let me ask you a question, how could I then as President not receive support from well wishers and President Mwanawas does? How could I as republican president of Zambia for ten years not have friends for myself and the party?

Justice Smith's obsession with my clothes is obscene. Doesn't a President have an income? Doesn't a President earn allowances for his travels abroad? Is not the living and other expenses of the President borne by the state?

Let me ask you a question, when you the member of the press travel out, do your newspapers ask you to use your salaries for abroad?... do they tell you go and use it at the hotel and they will not pay? Many of the houses bought by people do not come from their salaries, they come from travels when they go out.

When they come back that's when they buy those houses, some even manage to pay their children's school fees from those allowances. If junior civil servants can be paid for by the government to go and buy one or two things, why should it be... Judge Smith's contention that I could not afford education for my children is sick.

In Zambia today, Many Zambians in positions ranking lower than the President can afford to send their children outside for school. Today Zambians are sending their children to school in South Africa, in Australia and Britain, in America...they are not there because their fathers stole money.

Fellow Zambians, this is an insult not only to me but to all of us... all he is saying is that if you have a child who is at school in Zimbabwe, you have stolen money. If you struggle to send your child to Britain then you are charged with corruption.

This is according to white man Smith. In the recent judgement however, I am liable to pay a total sum of US$41 million on account of my fiduciary responsibility as Republican President for the period stated.

This is legally untenable. Public policy cannot be reduced to an individual in the manner this judgment seeks to suggest.
Recent revelations in the public accounts committee of Parliament and assertions by the President himself have disclosed massive abuses and theft of trillions or is it billions of kwacha.

This according to judge Smith...he says if any civil servant stole, you must have stolen, Chiluba, because you are responsible for the government, you should have been controlling them. Even though you were assistant account you should now have become chief account for government. Anything that is stolen by an office orderly you Chiluba must know because that is money stolen during your presidency. My question is, the 3 trillion kwacha President Mwanawasa announced to have been stolen and then he scaled it down to K36 billion is he responsible for that theft? Is he responsible because civil servants stole, therefore President Mwanawasa stole? Is President Mwanawasa liable to pay all those monies reported as stolen on account of the fiduciary duty he has, as Republican President? Is he going to pay?

Are all Presidents liable for acts of corruption under their government on account of fiduciary duty? Is Tony Blair personally liable for the arms deal?

This case is not about Chiluba, Faustin Kabwe, Xavier Chungu and Aaron Chungu, this case affects all of us.
In this judgement, the Attorney General of Zambia took a civil claim to the London High Court seeking to recover sums of monies allegedly misappropriated by myself and others between 1995 and 2001.

This judgment made on May 4th 2007 is the result of this process, which was engineered and orchestrated by the Mwanawasa government in consent with the British government. It should be noted that the judgment handed down by justice Smith is in reality a default judgment as I refused to appear before it. I cited the fact that London is not the appropriate forum or jurisdiction. The issues we are faced with are Zambian and Zambia enjoys a judicial process of its own that can adequately deal with claims of this nature.

Though not a lawyer, I find this judgment totally unacceptable and I therefore reject it. Justice Smith has exhibited extravagant conjecture to arrive at a judgment unsupported by facts and evidence. The language he uses is racist, abusive, demeaning and clearly unbecoming of a High Court judge, it is insulting, derogatory and inflammatory.

It is a dangerous and paternalistic judgment as Justice Smith has gone to great lengths to incite Zambians to rise against each other. In fact his comments are so dangerous that they might cause a serious breach of peace and security to our beloved country because of the manner in which he goes on verbal assault to incite people against me and my administration. In fact his comments border on genocide as he is urging one group of people to rise against another.

The judgment is in fact an abuse of the court process as it is lacking in evidence. At best it is a mere political statement made by a man who represents a vicious and violent system with inherent prejudices and hatred against Africa, its people and its leaders.

The judgment has put tremendous pressure on the corruption trials here in Lusaka such that they stand prejudged and predetermined.

It has prejudiced and undermined the current criminal and court proceedings in our own courts with a predetermined outcome. This is tragic for our judicial system and the blame lie squarely with the Mwanawasa government.

Judge Smith reduced himself to embarrassing political comments that satisfy the donor gallery. Therefore this judgment degrades the principles of justice and abuses the very law it is meant to serve. Fellow Zambians, perhaps when you are occupied with your personal ideas...other things, you sometimes don't observe matters as they happen from time to time?

Let me ask you a question...of what interest can it be for the monarchy in England to comment on stolen money by anybody...of what interest was it for the Duke of Gloucester... if this case was not predetermined by them, of what interest was it for the Duke of Gloucester Prince Richard who was in Zambia at the same time... I wonder whether this was not a very wonderful arrangement, you must be there just when I deliver or I must be there while you deliver the judgment.

Uncharacteristic of monarchies he made a comment in praise of the British court, which in this case is inciting Zambians to rise against me, the Duke of Gloucester says this is a beautiful thing. When I stated I, I also include my co-accused, I only say I because in that judgment I have been singled out and therefore I am trying to respond to that. The pronoun I is not meant to exclude my co-accused Xavier Chungu, Faustin Kabwe, Stella Chibanda and Aaron Chungu.

The judge states that I have missed the golden opportunity to clear the serious allegations of corruption against me with Zambians by not appearing before him and give evidence. No ladies and gentlemen, the opportunity to clear my name is before Zambians and should not be found in the British Courts. We are not a subservient state as this government wishes to make us believe. We have our own institutions to deal with our faults and flaws.

It should be noted that these allegations were first made by President Mwanawasa in Parliament where I was not afforded an opportunity to be heard. These matters are now before our courts of law where I am legitimately expected to give account. I do not accept that a foreign judge sitting in a foreign country is the final one to give me a legitimate and final opportunity to clear my name. I remain accountable to the people of Zambia and its institutions and systems.

What was the evidence judge Smith relied upon in his judgment? This claim by the Attorney General against me is founded on mostly the witness statement of one-Maulu Hamunjele. Mr. Hamunjele is the forensic auditor for the Task Force on corruption.

He is the principal and star witness for the government in this matter as in the Zambian criminal trials. He is the author of the famous matrix of plunder according to Zambia, he is key financial expert of the Task Force on corruption Mr. Maulu Hamunjele...but read the judgment and hear what judge Smith says of Mr Hamunjele.

Judge Smith has made serious disparaging remarks against Mr Hamunjele and his testimony. Justice Smith found Mr Hamunjele to be a liar...he said he is a liar and he said he has a juvenile predisposition to rush to judgment. Judge Smith says that Hamunjele is not credible in fact, most of his evidence was thrown out.

Judge Smith says he mislead him and he finds that Hamunjele does not posses adequate training. It's in that judgment. Now if you discredit the principal witness, you discredit him totally, you call him a liar, a thief....how is it possible for Judge Smith to make his judgment on the evidence and statement of Hamunjele which he has discredited. How can you embrace all the evidence in court?

Yes you have lied, but you have lied in the morning but this time I will make your lies look like truth. If it is normal and in a normal course of justice following the case as it should be, how could this claim by the Attorney General then have succeeded if the principle witness who has produced evidence is not credible and has told numerous lies during his testimony. This claim should have failed on that account alone. I pity what remains of the two gentlemen-Judge Smith and Maulu Hamunjele.

My great concern ladies and gentlemen is that President Mwanawasa has betrayed national trust and confidence, by setting in motion a process that undermines national sovereignty, security and credibility.

The judgment by Justice Smith is not about me as an individual, but is about Zambia and African leadership in general. Two months ago the British government found it fit to cancel a corruption investigation against a company called BEA the arms manufacturer as Tony Blair said in national interest.

The Zamtrop account in London has existed since 1963. To adapt to security requirements, the account has over the years changed its form and character. Zamtrop is not a new account, its only the name that change, it's the intelligence account, it could have either been called intelligence account or by any other name, the operations are strictly for the intelligence.

This account was there since 1963, many of the liberation wars, around us were assisted from this account. Does this government expect me to disclose our financial and material role in the peace process in Angola? Peace process in Congo?

I am reluctant to do so. I am reluctant and I need not to go any further to protect our country. The account was regulated by the 1970 Financial Charter, which was created by my predecessor, this charter is the privy of the Republican President, the director general of intelligence and the auditor general. It is highly regrettable that this document was shown to foreigners. What is left of our intelligence system after these actions? I know that even judge Smith and his colleagues have not seen the charter regulating the British intelligence, the MI5 and MI6.

This careless handling of national affairs in the quest to destroy a few individuals has exposed the Zambian intelligence to ridicule. It is this careless approach to national affairs that this government has destroyed the lives of many loyal, highly trained civil servants and professionals who have had their lives needlessly ruined. I am sure posterity will prove me right.
In my view, judge Smith cannot determine for Zambia what is security operations or not. He cannot ascertain that expenditures made by the intelligence were not legitimate. To show how this money was spent is to dwell on internal operations of the intelligence. The Zamtrop account has done and been used for a lot of good for this country.

That account has hidden nothing, any money spent by Chiluba from their was money that came from other sources and not government money. And the accounts can prove it at the bank, the auditors, Coopers as I have said and the Bank of Zambia itself, they all agreed that there was a surplus. Now if you have a surplus of 9 million and assuming you have misused other people's money amounting to three million.

Is it not only reasonable, natural and wise that somebody is not running an overdraft account...if he has nine million how does he steal three million? If you are telling me that there was a dificit of three million and then Chiluba took out nine million ooh.. he is liable. I know I can't remember the subject maybe its algebra where you can deduct a bigger figure from a small one and there is a minus answer. But in this case if you have nine million and take away three surely I leave that matter to our lawyers to work on.

But all the three audits that were carried out proved there was money in that account. And to suggest it was that account therefore, ni ng'ombe shakwa musanga it was all government money its not fair, its unattainable. Let me say that combart operations are meant to be secret and are guarded operations. There are many people who the state pays or reward financially or materially but whose details should remain anonymous. It will be irresponsible for me to disclose names and details of intelligence operations during 1995 to 2002.

Judge Smith and the Attorney General cannot tell us that all operations of the Zamtrop account between 1995 to 2002 was for theft and fraud.

Any money that they put there it was misused. No to my colleagues in the civil society the NGOs there are many things that the President or the state does to ensure that we maintain and keep, the peace and security of this country. And I will tell you peace is not cheap...peace is not something you keep or you expect easily. Peace is very expensive. Peace is not cheap to maintain.

What about this animal you call corruption, how do you combat corruption? Its not by word of mouth, its not by declaration. It is by taking action to make sure that this corruption is arrested. I am on record... I Frederick Jacob Titus Chiluba as President of the Republic of Zambia 1991 to 2001 am on record for fighting corruption. Am on that record, how will you read that record? Don't let or allow your minds to be crowded by slogans, slogans are for the general public at meetings but the real work of government is in the legislation... is in the action.

Then you will see the commitment of the government. I promised to fight corruption and I came and fought corruption, my government changed the reporting structure of the ACC which was at that time reporting to the President. When I came in we changed the law and ACC now reports to the board. They don't refer everything to the President. I brought that change myself, my government all those who were with me, that's how you fight corruption. You take actions which will enable that institution to work.

After changing that the ACC must report to it's own board, I went further and we said we give them also power to prosecute, its in the law during my time. Allow the ACC to prosecute according to their own conviction, according to what they find out they must not come to State House, I am on record, read the law that I left behind. You may remember one or two cases here...no this minister has been fired. Didn't I fire ministers for corruption I did.

The problems is this amnesia. We tend to forget... no I did but firing them is not even enough what was most important for me is to put in place this law, which will take care of all corrupt practices and corruption in general and I did that. I also strengthened DEC, and I am not fond of saying I..I..I but because I am being addressed in this judgment let me say my government and I. Nobody can do anything on his own.

If you hear a minister saying me I did this, where did he get the money from, its from the government. So my government and I...without the help of government the President will be rendered absolutely incapable. Now I have told you that we changed the reporting structures from the executive to the board on its own

ACC and then we gave them prosecutorial powers we did. If I may ask without malice to anyone what in terms of legislation has my dear brother Levy Patrick Mwanawasa done to put in place the infrustructure to fight corruption? Has there been a single legislation in Parliament? If he was relying on what we had left behind because the law is not permanent, its subject to change... circumstances change.

But what has my brother done? today the ACC and the DEC enjoy more autonomy as a result of a good legal framework that we left behind which only needs to be improved upon. President Mwanawasa himself has created an illegal body called the task force on corruption, which has no legal framework and exists at his discretion and executive. Yet he claims that he is fighting corruption. If he says stop, they stop...move, they move. They only ask at what speed?

Now what right have they ever got to tell the court what to do? Its because they are an illegal body. Aha..if the Chiluba regime was that corrupt, if it lost so much money, let us read comparative politics I have been given a book, where there is my old picture, that doesn't hurt me...laughs. I have been shown a book commissioned by Transparency International and authored by Edem Djokotoe titled 'Show me the money" which shows that in fact more money has been misapplied or stolen in President Mwanawasa's government, which is just over five years old, more than that of the two previous governments of Dr Kaunda and myself combined!

Dr Kaunda's government a long long way from 1964 and 1991 and my tens years put together, we lost less money than Mr Mwanawasa. That's a record achievement by Mr Mwanawasa. This is not my book I have only been given a copy. In that book there are many errors including that Mr. Mabenga was my minister of defence...he never was but I am sure 1964 to 1991 it's a long period. 1991 to 2001 ten years this put to 27... 37 years we lost loss less money than a government which is there for five years. The sadness of this matter is that the task force on corruption is mandated to a very very limited tenure of 10 years you cannot limit the investigation on corruption to the tens years I was in office.

What about this period? What about other periods? If we have to look at this we must go to the genesis and end with the revelations...you can't take the prophet Malaki and the gospel of Mathew, Mark, Luke and John. No! ho to the genesis come from the genesis to exodus..to throw to Joshua go through it all. Start 1964 right sown the book of revelation and that is the way corruption will truly be projected properly.

If in five years my brother's government has made history in losing money than Dr Kaunda's 27 years and my ten years, what remains of the next four years? The Task force on corruption is mandated to a very limited tenure of my ten years. It's this basis that has generated strong views that serious acts of corruption only existed under my government.

Corruption ladies and gentlemen is not corruption narrowly defined by the cable thst fights me. They have defined corruption as only those offences committed by my government during the period of 1991 to 2001. If truly I committed those serious crimes, why select which ones to judge men on and what not to, its from this account that I sent Levy Patrick Mwanawasa to hospital why am I not being charged for that? Its from this account that I sent Ba mayo ba Betty Kaunda when she suffered a paralysis to London, why am I not being charged for this? Is it not the same Zambia.

I am not justifying the money I gave my children because that money came from other sources. In fact, what is corruption in my opinion is the way this judgment was obtained, listen carefully, this judgment was obtained corruptly, listen carefully. What do I mean?

The British commenced these proceedings, the same British who commenced the proceeds, they commenced and paid the lawyer, they hired William Blair brother to Tony Blair, they paid for the witnesses, paid for the judge to come to Zambia, they paid even for the rehabilitation of a single court room where justice Smith sat for consultancy, given by Dr Patrick Matibini and others.

They paid even for the video conference facility, they even offered legal aid to enable me to appear for the entire process to ensure that without fair they achieve this desired judgment. They paid for everything. If I go and pay my lawyer, the judge who sits there, and I go and pay for the sitting and then I say good judgment how can I say that be good judgmenet? This judgment was bought. It was corruptly obtained.

For me all this process comes to one thing, corruption, its not donor aid. This is corruption, it was a well thought out scheme to achieve what this judgment prounces today, remember ladies and gentlemen, the chairman of the task force against corruption then Mr Mark Chona stated in his submission to the tribunal set up to investigate the DPP, Mr Mukelabai Mukelabai, which was chaired by judge Essau Chulu, the tribunal report also known as the Mukelabai tribunal says that the British and other donors urged them to secure convictions on Zamtrop..all cases of Zamtrop they urged them to secure convinctions without which funding to the government will be withdrawn. So this is predetermined.

The President told him at the meeting that some Ambassadors including the British High Commissioner wanted him out of office to pave way for Mr Mutembo Nchito who was a better prosecutor than himself. That the Ambassadors would stop funding the government if he did not leave office. Further, that the donors had been told by Mr Chona and the Nchito brothers that he had been compromised, that he was corrupt and had mishandled the task force cases.

He told the tribunal that similar allegations had been made against him during the meeting with the Vice-President on 8th December 2003.
From the above, I wish to state that I am of the view that this judgment was predicted on the strong desire to convict me at whatever cost. However, this matter is not final or conclusive.

Zambians will know the truth about this matter when I am afforded an appropriate opportunity to explain in a Zambian court where my constitutional protection and obligations lie. The legal and technical details of this case will be handled by the lawyers and courts. I will therefore not refer to them.

Headline points from the judgment of justice Peter Smith

Why were the proceedings brought in London?

The case was brought in the High Court in London because of the money that passed through bank accounts in London. It was then disbursed to England, Switzerland, Belgium, the US and elsewhere, or went on a round trip back to Zambia. London was at the centre of the wrong-doing by 20 defendants based in Zambia, England, Belgium, Switzerland, the US and elsewhere. The result is that to obtain an effective remedy, the Zambian government had to sue here. An example of the effectiveness of the English jurisdiction is the trial in London of the preliminary issue against the Belgian defendants in August 2005, which resulted in a substantial recovery of Belgian assets for Zambia.

Jurisdiction challenges

The Zambian based defendants originally participated fully and were represented by solicitors and counsel. They unsuccessfully challenged the English court’s jurisdiction over them before the High Court and Court of Appeal. The House of Lords dismissed their petition for leave to appeal. The Zambian defendants then dis-instructed their lawyers and “discontinued participation” in the proceedings despite the fact that Zambia had lifted a Restriction Notice imposed on their Zambian assets to enable them to fund legal representation.

Special arrangement to protect the
Zambian defendants’ right to a fair criminal trial.
The Zambian defendants are the subject of criminal proceedings or investigation in Zambia. A condition of their bail is the surrender of their passports. The English Courts were concerned to ensure that they could have a fair civil trial in England without prejudicing their defence of the criminal proceedings. Special arrangements were put in place to achieve this:
All hearings and the trial were held in private.

All hearings in the four-month trial took place by video-link. A dedicated satellite was installed in a secure courtroom in Zambia and videoconferencing equipment was installed in the High Court in London to enable participation in Zambia.

The defendants’ defences, documents and witness statements were ring fenced from the Task Force and distributed only to the Attorney General and his key staff for the sole purpose of the civil proceedings.

The judge and the claimant’s legal team traveled to Zambia in December 2006 and the judge spent three weeks in Zambia taking evidence as a special examiner by video-link with the court in London. Had the Zambian defendants participated, he would have heard their evidence in person.

Dr Chiluba broke the ring fencing order which was put in place for his benefit on the first day of trial by giving a press conference and publishing ring fenced material. Nevertheless, the trial continued to be held in private.

The trial lasted four months, from 31st October, 2006 to 29th February,2007. Zambia called 47 witnesses of fact, expert evidence on Zambian law and expert accounting evidence, tracing the flow of funds. It disclosed large volumes of documents. The trial bundles exceeded 100 files. At trial the only participating defendants were Iqbal Meer, Naynesh Desai, Bimal Thaker, B.B Thaker and Atan Shansonga. They called no other witnesses to corroborate their defences.

The Judge’s findings in relation to Dr Chiluba
The judge made very detailed findings in relation to Dr Chiluba at paragraphs 441 to 471 of the judgment. He summarized his views as follows:

“ At the end of the day he was the president at the top of the control of government finances. He was uniquely positioned to prevent any corruption. Instead of preventing corruption he actively participated in it and ensured it happened. It is difficult to find an adjective that adequately describes the failure on the part of Dr Chiluba.

He has defrauded the Republic. He has deprived the people over which he was exercising stewardship on their behalf of huge sums of money which was supposed to be spent for their benefit. He has diverted those monies for wide ranging benefits of the core- conspirators but has not (unlike Clive of India) shown restraint himself in the amount of money which he “plundered” from the government coffers. It is a shameful series of actions and he should be ashamed”.

“As the former president, in the light of the serious allegations made against him he ought to have in conscience explained himself to the Zambian people. He was in a position to do so in these proceedings without any fear of compromising any defence in criminal proceedings and without any fear that the evidence he gave could be misused by the Attorney General of Zambia.

He has not taken advantage of that option and in so doing he has in my view further abused the people of Zambia, They are entitled to an explanation from him as to what has happened to the large amounts of monies which were under his control by virtue of the Financial Charter and which came into and out of the ZAMTROP Account. He has had all the documents provided and therefore lacked in nothing to present his case”.

“I have already dealt with his inadequate defence in respect of the conspiracy. I’m quite satisfied that he had an active role in the setting up of the ZAMTROP Account and its operation. I am also satisfied that on occasions he actively participated in payments made to it and he received substantial personal benefits”.