Tuesday, September 04, 2007

Regina, just submit

Regina, just submit
By Editor
Tuesday September 04, 2007 [04:00]

The right to equality before the law, or equal protection of the law as it is often phrased, is fundamental to any just society. Whether political ally of those in power or opponent – all are entitled to equal protection or fair treatment before the law. We appreciate that the state cannot guarantee that life will treat everyone equally, and it has no responsibility to do so.

However, under no circumstances should the state impose what can be seen or interpreted as additional inequalities; it should be required to deal evenly, equally and fairly with all its people.

And indeed no one should think they are above the law, which should, after all, be seen to be the creation of the people, not something imposed on them. Citizens should submit to the law because they recognise that, however indirectly, they are submitting to themselves as the makers of the law. When laws are established by the people who then have to obey them, both law and democracy are served.

There is nothing illegal about the state entering a nolle prosequi in favour of Regina and later re-arresting her. This may be unfair on her, but it is certainly legal. And moreover, these are the same laws and practices her husband, Frederick Chiluba, used to use in dealing with his opponents.

In fact, Chiluba at one time caused the arrest and prosecution of innocent citizens for saying that he had an affair with Regina, when she was still married to Eddie Mwanza. But the state later entered a nolle.

This was not until after these accused persons had incurred huge legal bills trying to defend themselves. This was legal but not fair.

And our judiciary, at whatever level, may find itself confronting these abuses, and may find itself subjected to enormous pressures to accept them. Often, if the process is legal but unfair, there is little that a court can do.

And there is hardly a more powerful weapon which can be abused in the hands of a government than that of initiating or discontinuing prosecutions. And all our successive governments have abused the prosecution process using nolle prosequis.

Regina is justified in her anger against the discontinuance of her prosecution through a nolle prosequi just to face re-arrest a few days later. She has already been subjected to a very stressful and costly process just to rewind it once more, just to start the wholeprocess afresh or de novo. This is not fair; this is not acceptable but there is nothing shecan do other than to subject herself to it once more because although it is unfair, it is legal and the state is acting within the law

Attempting not to cooperate with law enforcement agencies will not be helpful to her; it will actually just put her at a disadvantage.
The police, as Task Force chairman Max Nkole, has correctly warned have the right to use reasonable force to arrest and detain her.

Regina may just end up denying herself access to a police bond. And this will just be an exercise in futility because she has no capacity or power to defy the state. No one has succeeded in doing so, unless they have got an army or a militia of their own running a state within a state. Otherwise, Regina will be picked up in a rough and embarrassing way.

We therefore advise her to cooperate with the orders being given to her because although they may be said to be unfair, they are legal and as such have to obeyed.
This said, there is need for us to turn to the issue of the way Regina’s prosecution was conducted by the state. We have never seen such incompetence and inefficiency in the conduct of such a high-profile case. From the very beginning it was very clear that the state was not ready to proceed and was totally off-tangent.

The prosecution appeared to have been at sea, it did not know what it was doing and had little knowledge of the case. The prosecution counsel was totally lost and acted in a manner that made it look as though the state had no case against Regina and was merely victimising her for political or other reasons.

For us, who have followed these cases and helped in digging them out, the prosecution counsel looked stupid and continually made a fool of itself. But we are not blaming the prosecution counsel for this. The blame should lie with those who engaged them to do the job they were not ready for.

These are not ordinary petty theft cases; they are very complicated white collar crimes committed over a long period of time by very intelligent people with evil and selfish minds. As such, a lot of work is needed by the prosecution counsel to understand the matrix of what went on, of how public funds were abused or stolen. Clearly, this was not the case in Regina’s prosecution. The prosecution counsel had clearly not done this homework properly and hence its poor performance in court.

The Director of Public Prosecutions (DPP) had no alternative but to invoke his statutory powers to enter a nolle prosequi and start the matter de novo.
It is our sincere belief that the DPP had no intention to inconvenience or to be seen to be victimising Regina. But the bungling of the case by the prosecution counsel had to be remedied and the only way this could be done was via a nolle prosequi and a re-arrest of Regina.

This is certainly not fair to Regina, but as we have already stated it is perfectly legal – it used to be done even during her husband’s presidency.

But there is need for the state to take all necessary steps to ensure that prosecutions are conducted in an efficient, effective, orderly and fair manner.

What happened in Regina’s case could have been avoided if care had been taken in the engagement of prosecutors.
We should not forget that in every society throughout history those who administer the criminal justice system hold power with the potential for abuse and tyranny.

We know that in the name of the state, individuals have been unjustly arrested, detained and mistreated in all sorts of ways without legal justification. No just society can tolerate such abuses.

Every state must have the power to maintain order and to punish criminals, but this must be done in a manner that is seen to be fair and just – and not only legal because as we have seen, some practices or procedures can be legal but not fair. We should remove from our criminal justice system or judicial process arbitrariness and practices that appear to be subject to political manipulation by those in power.

We have no doubt that the state has a good case against Regina but it is today made to look vindictive and unfair because of the incompetence, the poor handling of the case by the prosecution counsel. This should be, and can be, avoided. The cost of allowing this may prove too high if we are not careful. We should not forget that there is too much at stake in these cases because they involve people who are literally fighting for their lives.

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