Saturday, August 29, 2009

Mchenga’s continued lies

Mchenga’s continued lies
Written by Editor

It is unquestionable, and dialectics teaches us, that what in a given moment is a correct method, later on may be an incorrect one.

That is what dialectics teaches us. Anything else is dogmatism. Why are we saying all this? We are saying all this because our friends or rather our adversaries seem to know only one method, one tactic, one strategy – lies. And they apply this to every situation even where telling the truth requires no effort, puts them in better light. They will tell lies even where there is no need whatsoever to lie.

But what they are forgetting, even from their own personal experiences, is that lying and lies have never built anything. Integrity, honesty and a sense of dignity are the only true basis upon which societies can and should be built.

Our people are patient, kind and loving. They accommodate a lot but should never be taken for granted. They have been waiting for honest and selfless leadership but are met with many disappointments. It seems succeeding generations of leaders are not changing. They are not even trying to improve on the principles and the dignity that characterised our founding fathers. These were men and women with little education, but armed with a determination to improve their country. They had a vision. They made sure their sacrifice was not for nothing.

Today it seems most of our leaders are shameless opportunists whose stock in trade is lies, dishonesty and a spineless existence. When we talk of leaders, we are not limiting ourselves to politicians. We are also thinking about anyone exercising authority on behalf of the people. It is expected and should be expected that such people are committed to a very high standard of integrity, dignity and honesty. But this is not the case.

Chalwe Mchenga, the Director of Public Prosecutions, or rather the director of impunity, is a person who is supposed to be exercising very important powers on behalf of the people. But his conduct is far from what the people expect. He does not seem to have any loyalty to the principles that would benefit our people. His loyalty is to Rupiah Banda, George Kunda and those around them. It is clear that Mchenga is a shameless liar, puppet whose strings are firmly in George’s hands.

Anyone who has been observing the fight against corruption closely has to admit that the behaviour of the government in relation to the Frederick Chiluba matter has George’s signature written all over it. It is clear to us that George is pulling the strings. But those who are listening to George should not forget what he did to Levy Mwanawasa in the Kashiwa Bulaya case, in that criminal decision to grant that criminal a nolle prosequi.

Having planned and executed his criminal scheme, George went quiet as he is doing now and left Levy to be mulled by public opinion. Although that evil scheme had George’s name written all over it, he was conspicuous by his silence. George was busy pulling the strings while Levy was receiving the punches. This is George. This is how he operates.

It is unfortunate that George and his shameless, deceitful and spineless puppets like Mchenga do not seem to have learnt anything from the Bulaya episode. Levy was almost mortally politically wounded from his Bulaya criminal scheme. The public bloodied his nose in the 2006 elections. They showed their displeasure at the way that issue and other issues were being handled. This is a lesson George should have told his paymaster Rupiah. They may think they have won or are winning but the public will have the last say about this. People are angry and unhappy with their deceit, with their corrupt schemes. And they shouldn’t forget that we are reminded in the Bible: “What you get by dishonesty you may enjoy like the finest food, but sooner or later it will be like a mouthful of sand” (Proverbs 20:17).

When will young professionals like Mchenga learn that lies are not sustainable, that prostitution does not pay? It is clear for anybody to see that as he did in the Bulaya case, Mchenga has capitulated over the Chiluba case and chosen to side with corruption. When did Mchenga become Chiluba’s defence counsel? This is the way he is behaving. Mchenga is saying that the appeal was withdrawn because it would not succeed: “An appeal should only be made when there is a likelihood of it succeeding. Appealing because of concerns of members of the public without regard to the likelihood of success is actually an abuse of the judicial process.”

Mchenga is saying that there is evidence before court that money in excess of US $8.5 million was paid into the Zamtrop account from other sources and Chiluba made a statement that some money had been placed into the account on his behalf. And that from the evidence before court, it was not clear whether the money the accused persons were alleged to have stolen came from the government or other sources. He goes on further to say: “To resolve the difficulty, the court relied on the well-established principle of criminal law that where two or more inferences can be drawn from a set of facts, the court must adopt one which is more favourable to an accused person if there is nothing to exclude such an inference. This being the case, the court had no option but to acquit him (Chiluba) because the money he had drawn was not public money.”

Mchenga also claims that the notice of appeal that was filed on Monday by the public prosecutor was withdrawn because it was filed against his instructions. And that Section 86 (3) of the Criminal Procedure Code provides that every public prosecutor shall be subject to the express directions of the Director of Public Prosecutions and the decision by Maxwell Nkole, the then Task Force executive chairman, to instruct the public prosecutor to file the appeal was illegal. Mchenga goes on further to say that it came to his attention on August 21, 2009 that Nkole had instructed the public prosecutor to appeal because the acquittal of Chiluba had raised great concern from various sectors of society. He says on the same day, he instructed Nkole not to file the appeal until such time that he had reviewed the judgment: “But contrary to my instructions, the notice of appeal was lodged. The reasons for rushing to file the notice are unclear because Section 321A (1) of the Criminal Procedure Code gives the Director of Public Prosecutions 14 days within which to appeal where he is not satisfied with a judgment.”

Mchenga says while public concern can be a basis for instituting criminal investigations, it cannot be the basis for instituting a criminal prosecution or appealing against an acquittal. This is what Mchenga says about his decision to stop the appeal against Chiluba’s acquittal by magistrate Jones Chinyama.

But this should be looked at in the light of what this same Mchenga and his master George had said to justify their criminal decision to let Bulaya go scot-free like they have done with Chiluba. Let us not forget the lies they told. They told the Zambian people that they had studied Bulaya’s file and found that there was no strong case against him and that the state was going to lose. For this reason, they decided to stop the prosecution of Bulaya and Mchenga accordingly entered a nolle prosequi in his favour. The rest is a well-known story. Their lies were exposed because when Bulaya was prosecuted by the Magistrate’s Court, he was convicted. Bulaya appealed to the High Court and failed because the decision of the subordinate court was upheld. And the lie of Mchenga and his friends has not yet dried because Bulaya is still in jail against their advice. This same Mchenga who today wants to claim a very high professional standing or integrity using lies had been instructed by these same masters of his to withdraw the nolle as a result of unceasing public pressure. It was not his own legal judgment that made him reverse his nolle on Bulaya. It was this same public pressure, public opinion that he is today trying to belittle that made him swallow his lies and take Bulaya’s case back to court. The problem with liars is that they hope that the public has forgotten. Mchenga entered the Bulaya nolle which his predecessor Caroline Sokoni had refused to enter because George’s instructions to her were wrong. To this day, George must keep Sokoni’s letter under his pillow. These are the same people that want to pontificate and tell us that they are stopping the appeal against Chiluba’s acquittal because it is not likely to succeed. This is the same Mchenga that wants to portray a high professional image and trying to pretend only them know the law. What nonsense is this, what lies are these, what deceit is this?

It is only yesterday that we showed the nation how incompetent they are. They tried to lie that a public prosecutor had no power to file an appeal without seeking first the approval of the Director of Public Prosecutions. This nonsense has been debunked by a case that was taken by his own chambers. We showed him the case of The People vs Julius William Banda (HJA/05/2008) in which High Court judge M.S Mwanamwambwa stated: “I hold that the delegated authority of a police public prosecutor under Article 56 (3), (4) and (6) and Section 87 of the Criminal Procedure Code to institute and undertake criminal proceedings on behalf of the Director of Public Prosecutions, extend to lodging an appeal from an acquittal in the subordinate court to the High Court, when the need arises to appeal. There is no need for a fresh mandate. The notion of a statutory instrument suggested by Mr Jere cannot be read into Article 56 (4) and sections 87 and 321. Indeed, Sector 87 is specific that there is no need for further written authority. This equally applies to a legal practitioner who represents the Director of Public Prosecutions in criminal proceedings before any court.”

Now that he knows that his earlier lie cannot hold, he is shifting his position to another lie. Now he wants to say the appeal was filed against his instructions and cannot stand on merit. The problem with liars is they don’t care to listen to themselves when they talk even when the contradiction of their position is clear, they do not see it. In one breath, Mchenga is saying Nkole could not instruct a public prosecutor. In the next breath, the same Mchenga says he instructed Nkole not to file the appeal. When did he ever instruct the public prosecutor not to file the appeal? If it is illegal as he claims for Nkole to instruct the prosecutor, why was he instructing Nkole to instruct the prosecutor not to file the appeal? Clearly, Mchenga is creating fresh lies as he goes to try and cover up the evil scheme that he is participating in. It is open for everyone to see that now that we have shown him that a prosecutor can file an appeal without his further instructions, he is trying to find a reason to justify his lack of understanding of his own authority.

This is not the only defect with Mchenga’s lie. He wants to mislead our people by saying that the appeal had no likelihood of success because according to him, Chiluba had private money in the Zamtrop account which he told the court about. In a way, this is why we went to law school to learn a bit of law to smoke out liars like Mchenga who try to hide behind legal nonsense which they want to pass for legal jargon. What Mchenga is saying about the appeal is rubbish. We wonder what kind of lawyer he is. At the time that Chiluba was president, public finances were controlled by the Finance and Control Management Act. If Mchenga had bothered to read that law, he would know what kind of nonsense he is spewing. How can private money be in a government account? Section 7 (2) of that Act says that: “All moneys paid into a bank pursuant to subsection one shall be deemed to be public moneys the property of the Republic lent by the Republic to the bank.” And subsection one says, “subject to any express direction of the Secretary to the Treasury in respect of the operation of any fund or working account established pursuant to section eight, moneys received by any accounting officer shall be deposited at the earliest opportunity with such bank or banks as the Secretary to the Treasury may direct”.

With such clear provisions of the law, how can Mchenga say Chiluba was keeping private money in a government bank account? And moreover, this is the claim Chiluba made without allowing himself to be cross-examined. Anyone can make such a claim. Even Mchenga himself can claim to be holding money in a government account. But can such a claim be taken as absolute truth without verification? This is why even Mchenga himself cannot tell the Zambian people where Chiluba’s purported money came from because it is simply government money that was being laundered. If it is not government money, then it was simply bribes that Chiluba was trying to launder using an account he thought nobody will peruse through.

Even if we accept this nonsense and say there was private money in the Zamtrop account, Chiluba is obliged to explain where that money came from because it is not normal for a person to receive such money and keep it in a government account. Why did Chiluba need to use his chief of intelligence as his accountant, his money launderer? Why was he involving a state institution in his private affairs? We have said before that Faustin Kabwe and Aaron Chungu were convicted and sent to jail for failing to explain the source of K70 million which was used to buy shares for Aaron. If Chinyama could convict Faustin and Aaron for failing to account for K70 million, why should Chiluba go scot-free having failed to account for the US $8 million he claimed to be his? This is the nonsense that Chinyama’s judgment created. How can Mchenga say an appeal could not succeed?

The appeal is not making sense because his masters have told him not to appeal. That is all that this is. As it was in the Bulaya case, Mchenga saw no merit in prosecuting someone who had stolen and laundered money meant for buying ARVs for people suffering from HIV and AIDS. It was simply because his masters had told him to enter a nolle in favour of Bulaya. And when they decided to back down due to public pressure, Mchenga had no shame in going down with them. He changed his position without any explanation to the public. This is the kind of person we are dealing with – a spineless wimp with no commitment to public interest.

Mchenga should not try to cheat anybody that he is an independent legal professional working for the public as an independent Director of Public Prosecutions. The only independence he knows is disregarding public interests if it suits his political masters. Mchenga has demonstrated a serious lack of independence in the performance of his duties. He has never hesitated to go to bed with politicians, with those in power regardless of how dirty their bed is. We have not forgotten that this same Mchenga dealt with the case of the late Archie Malie Mactribuoy on behalf of Chiluba, trying to fix him for allegedly having an affair with Vera, Chiluba’s wife at the time. Trumped-up charges were raised against Mactribuouy and there was no shame or professional restraint on the part of Mchenga to undertake that assignment on behalf of Chiluba.

Mchenga knows that the appeal that was filed has merit and each of those seven grounds is enough to overturn Chiluba’s acquittal. And this is why Mchenga and his political masters were in a hurry to clear Nkole and withdraw the appeal. It is not fear of the appeal failing that is propelling Mchenga to do what he is doing. It is their fear of Chiluba being convicted on appeal that is making them do all these crazy things they are doing in a desperate and unreasonable manner.

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