Maravi

Judgment against Chiluba still stands - Judge Smith

Judgment against Chiluba still stands - Judge Smith
Written by Joan Chirwa
Thursday, January 01, 2009 7:52:50 AM

LONDON High Court judge Peter Smith yesterday said the original judgment against former president Frederick Chiluba and all other Zambian defendants has not collapsed.In a statement obtained by The Post, judge Smith stated that the judgment against Chiluba and other defendants was wholly unaffected by the outcome of the appeal of Meer Care &Desai in the Court of Appeal.

Judge Smith was reacting to Chiluba's statement that the London judgment obtained by the Attorney General on behalf of the government of Zambia regarding a case in which the government won and would recover US$1.2 million from a Swiss tailor Antonio Basile which was used to acquire his [Chiluba] suits, shoes and shirts, had collapsed following a successful appeal by Meer Care & Desai who had won this case with costs.

Judge Smith stated that the only question left was whether the High Court of Zambia would allow registration of the London High Court judgments and subsequent enforcements in Zambia.

Attorney General Mumba Malila, who also disputed Chiluba's statement and warned him against trivialising the London judgment, assured last week that the government would soon register the judgments in the High Court of Zambia.

“It is important to appreciate that the original judgments against all Zambian defendants (including Dr Chiluba) remain in full force,” judge Smith stated.

“I have become aware of a press statement made recently by or on behalf of Dr Frederick Chiluba concerning orders made by the Court of Appeal of England and Wales and their effect on the judgment and orders made by me in London on 4th May and 29th June 2007. I am issuing this statement so that there should be no misunderstanding as to the nature, scope and effect of the orders made in the London Court proceedings.

“I delivered the main judgment on 4th May 2007 (2007 EWHC CH 952). That judgment can still be reviewed at www. Bailli.org.uk, I revised the liability of each of the defendants in my judgment dated 29th June 2007. Dr Chiluba participated in the proceedings through counsel and solicitors until his appeal was dismissed against the ring fencing orders made by me. His subsequent petition to the House of Lords was also dismissed.

“Dr Chiluba's sole challenge was on the grounds that he could not obtain a fair trial despite the ring fencing proceedings. His counsel did not challenge the jurisdiction of the High Court in London to hear the claim; he did the contrary and acknowledged that there were good reasons why the trial could be heard in England and Wales.

Despite the Court of Appeal determining that the ring fencing regime provided sufficient protection for the Zambian-based defendants, none of them including Dr Chiluba, chose to participate in the trial and avail themselves of the opportunity to explain their position.”

Judge Smith stated that the position of the defendants was strengthened by his coming to Zambia to hear their evidence in person.

“The presence of a live video link on a daily basis gave Dr Chiluba and the other Zambian-based defendants a full opportunity to present their cases but they chose not to do so,” judge Smith stated. “Contrary to statements made, the ring fencing provisions worked except in some small ways. First, Dr Chiluba broke them himself (despite the provisions being in place to protect him) by issuing a press statement using documents supplied confidentially under the ring fencing provisions. Second, some of the defendants leaked the transcripts selectively to the press.

That was stopped and a further leak only occurred when an official in the Attorney General's office mistakenly released further transcripts to the Zambian defendants who then published them in breach of the ring fencing provisions. None of the Zambian defendants ever complained to me until much later after the trial that the Attorney General had allegedly broken the ring fencing order and there was no evidence ever produced to suggest he had.”

Judge Smith stated that nothing said by the Court of Appeal affected in any way the judgment against Chiluba and the other Zambian defendants.

“The dismissal of the Attorney General's petition leaves the Court of Appeal's exoneration of Mr Meer and thus Mr Desai standing, but it does not affect the liability of any other defendant including in particular Dr Chiluba and all the other Zambian-based defendants remain in full force and effect,” stated judge Smith. “All Defendants have judgments against them as set out above save Mr Meer and Mr Desai.

Those judgments remain in full force and effect. Any suggestion that the successful appeal by them affects the liability of any other defendant is wrong. The contrary is the position; despite the numerous appeals, none of the other defendants has overturned my findings as regards the primary conspiracies by the Zambian-based defendants including in particular Dr Chiluba.

“The Court of Appeal has affirmed those findings no less than three times. First when it dismissed Mr Kabwe and Mr Aaron Chungu's Appeal; Second when it allowed the Appeal of Mr Meer and third when it granted a retrial to Mr Basile.

“Further the ring fencing order ensured I believe no material was released as a result of the trial which might prejudice any subsequent criminal proceedings (although that is of course, a matter for the Zambian Courts alone to determine). No material was referred to in the judgment published in Zambia which was not already in the public domain save the 1970 Act. That Act was produced at my instigation to deal with its reliance by Dr Chiluba in his Defence which was served before the ringfencing and was thus in the public domain. That has been produced again in the criminal proceedings.”

Labels: CHILUBA, COURTS

posted by MrK @ 7:53 AM