Friday, May 30, 2008

Court denies Chiluba access to OP Charter

Court denies Chiluba access to OP Charter
By Noel Sichalwe
Friday May 30, 2008 [04:00]

Lusaka High Court judge Japhet Banda yesterday said President Mwanawasa's refusal to authorise the release of the 1970 Financial Charter in the London judgment registration case is legal. And judge Banda has stayed proceedings in a case in which former president Frederick Chiluba and others are challenging the registration of the London judgment, which found them guilty of defrauding Zambia of millions of US dollars. This is a matter in which former Access Financial Services directors Faustin Kabwe and Aaron Chungu have appealed against the London High Court judgment.

Kabwe, Chungu, Chiluba and former permanent secretary in the Ministry of Finance Stella Chibanda, among other Zambian defendants, are contesting the registration of the London High Court judgment of May 4, 2007 pursuant to rule 11 of the Foreign Judgment Enforcement Rules.

The quartet is represented by lawyers John Sangwa, Robert Simeza, Bonaventure Mutale and Edgar Lungu while the state is represented by Attorney General Mumba Malila and Solicitor General Dominic Sichinga.

Earlier, Sangwa raised a preliminary issue asking the court whether proceeding with hearing of the matter in the absence of the 1970 Finance Charter would be consistent with the provisions of Article 18(9) of the Constitution.

Sangwa argued that if the preliminary issue would not be determined now, the final judgment would erode the essence of the application.

Passing the ruling, judge Banda said he had considered the current application in the light of President Mwanawasa's refusal to authorise the Financial Charter on February 29, 2008.

Judge Banda said President Mwanawasa's refusal to release the Charter was done pursuant to the law under which he was asked to act in accordance with the Zambia Security Intelligence Service (ZSIS) Act.

"The President was allowed, under the provision of the law, not to authorise production of the Financial Charter. Any law including the Zambia Security Intelligence Service Act is made pursuant to and must comply with the Constitution. The Zambia Security Intelligence Service Act has not been nullified or attacked in any ways nor has it been struck out. It is therefore, legal and constitutional," he said.

"The respondents are trying through the backdoor to assail attack and make illegal the President's powers to refuse production of the Financial Charter in this matter. This court cannot accept that. As the law stands, the President acted within the law to refuse that Financial Charter be produced. Any law in Zambia is made pursuant and must be in compliance with the Constitution."

He said the most important thing was that all parties in the London matter where the Financial Charter was produced were given an opportunity to see it, cross-examine any witness who produced it and use it.

Judge Banda said the court was only dealing with the registration of the London judgment and urged the parties to confine themselves to what was being dealt with.

"The court will not allow itself to open a case or rehear it as it has no jurisdiction to do so," judge Banda said.

At this stage, Bonaventure Mutale said they have since been instructed to appeal against the ruling to the Supreme Court and stay the matter.

However, Malila objected to staying the matter arguing that those who would like to appeal could do so without staying the matter. However, judge Banda granted leave to appeal and stayed the matter.

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