The meaning of Chiluba’s acquittal

The meaning of Chiluba’s acquittal
Written by Editor

There are many questions being asked about the acquittal of Frederick Chiluba by magistrate Jones Chinyama yesterday. People are asking what the Chiluba acquittal means. What does it mean? Put simply, it means Chiluba won’t have to go to jail. But of course beyond this, there can be a number of interpretations.

To Chiluba, this means he is not only a free man who doesn’t have to go to jail; to him, it means he is a clean man who didn’t steal anything from the Zambian people, and to borrow from Rupiah Banda’s vocabulary, he is a damn honest man. But the issue doesn’t end with Chiluba’s interpretation no matter how much he will try to push this line.

These criminal proceedings that yesterday ended with Chiluba being acquitted and his co-accused being sentenced to three years imprisonment are just part of the story. There is still a London High Court judgment in the hands of Rupiah’s government. And Rupiah’s government has taken this judgment to the High Court of Zambia to be registered so that it can be enforced against Chiluba.

This means that once this judgment is registered, Rupiah’s government will move against Chiluba and recover back to the people what he had stolen from them. For some reasons, the registration of this judgment has dragged for a very long period through various court processes.

Rupiah’s government’s attempt to register the London High Court judgment against Chiluba raises a lot of questions. In one breadth, Rupiah is saying Chiluba is an innocent man, a damn good president who has not stolen anything from the Zambian people, a clean man and so on and so forth. In another, Rupiah’s government is in the courts armed with the London judgment trying to recover from Chiluba what they believe he had stolen from the Zambian people. These are two diametrically opposite and irreconcilable positions. You can’t be wrong and be right at the same time; you can’t be a thief and be an innocent person, a clean man at the same time. You can only be one thing: either clean or not clean.

In the light of Rupiah’s pronouncements, it will be very interesting to see how his Attorney General will proceed in the High Court trying to register and enforce the London High Court judgment against Chiluba. This matter is already in the High Court. Are they going to connive and stop the Attorney General from registering and enforcing that judgment? Is the High Court going to be assisted to refuse to register that judgment to suit Rupiah’s position on Chiluba? If this happens, what will it mean?

There are many questions that are being asked about Chiluba’s acquittal. Many people are asking: what is the difference between the London High Court judgment and yesterday’s Lusaka Magistrate’s Court acquittal of Chiluba? Put simply, this is a question about the difference between a civil judgment, that is the London High Court judgment obtained by the Zambian government against Chiluba and yesterday’s criminal acquittal of Chiluba by the Lusaka Magistrate’s Court.

There are many examples where a person has been acquitted by a criminal court but found wanting on the same issue by a civil court. The classical example of this is that of former United States football hero Orenthal James Simpson, popularly known as O.J Simpson. O.J Simpson was found not guilty as judged by the criminal court in the murder of his wife and her friend. Yet a civil court held him accountable. So, how is the civil court’s determination different from the criminal? And so is O.J still not guilty of murder?

Clearly, our people are not alone in being confused about how a person acquitted of murder in a criminal trial can be held liable for a victim’s wrongful death in a civil trial.

The first step to understand this seeming contradiction is to know that a criminal prosecution involves different laws, a different court system, and different burdens of proof. And to convict in the criminal court, the case against the defendant must be proven beyond a reasonable doubt.

In a civil case for wrongful death, on the other hand, you have to show only that the defendant was legally responsible for the death. But, to get damages, as the plaintiffs did in the O.J case, you have to show that the defendant acted recklessly. The burden of proof in a civil case is preponderance of the evidence – a much lesser burden than is required in a criminal case.

So, while a criminal court might reasonably fail to find guilty beyond a reasonable doubt and acquit the accused, a civil court might also reasonably find by a preponderance of the evidence that he acted recklessly and should be held civilly accountable. Is O.J Simpson a murderer, a criminal? A civil court found it more likely than not that he caused the death of his wife and her friend. A criminal court was unable to find beyond a reasonable doubt that O.J committed murder. Seen this way, there is no contradiction.

This is the way to look at the acquittal of Chiluba in the Magistrate’s Court yesterday and the finding of the High Court in London against Chiluba. Again, seen in this way, there is no contradiction between the London High Court judgment against Chiluba and his acquittal by the Magistrate’s Court yesterday. From a legal point of view, the issue doesn’t require any disquisition; it’s a straightforward issue. But there are problems on the political front created by the political leadership of this country.

Throughout Chiluba’s trial in the Magistrate’s Court, Rupiah, as head of state, stood on the side of the accused and not on the side of the state. It is the state that took Chiluba to court both in London and in our own courts here. And the head of that state is Rupiah. Clearly, what this means is that at some point, the state seemed to have abandoned its own case against Chiluba and was just short of asking for the discontinuance of the case because it might have been politically sensitive to take that route. It will not be far-fetched for anyone to come to that conclusion given what the head of state, on whose behalf these matters were being prosecuted, had been saying about the accused and indeed his own personal interaction with the accused.

And given Rupiah’s defence of and support for Chiluba in the criminal proceedings in which he has been acquitted, it will be very difficult to see how this same Rupiah will continue his case against Chiluba in the High Court to have the London judgment registered and enforced. Can Rupiah’s government today tell the Zambian people that they will be happy to have the London judgment registered in our High Court and enforced against Chiluba? Can they really be trusted to champion this matter?

Are we going to be surprised if tomorrow we were to wake up to be told that the Attorney General has discontinued the matter to register and enforce the London judgment against Chiluba? How can people who are today celebrating Chiluba’s acquittal be trusted and tasked to champion the registration and enforcement of the London High Court judgment against Chiluba? There is definitely a serious problem here!

As for Chiluba’s utterances against those who called him a thief now that he is acquitted, we leave it to his lawyers to advise him in an honest manner. We called him a thief. We challenge him to take legal action against us if he thinks that acquittal has cleared him from being called a thief. Let’s meet in court since he respects court decisions. We know that his friends are in power and things may be more favourable to him everywhere but we are still ready to meet him in court even under unfavourable conditions.

Chiluba is a thief who should pay back what he stole from the Zambian people as found by the London High Court judgment and other evidence that is there besides that. Not going to jail does not make Chiluba a clean person. There is no question, Chiluba ran a corrupt regime that can only be praised and defended by equally corrupt elements.

Anyway, for all that, we should not forget to honour the noble efforts of Levy Mwanawasa on this score. Without Levy’s courage, the corruption of Chiluba’s regime wouldn’t have been known by our people. Today they can try to launder themselves but the Zambian people know who they truly are – they are nothing but devils, evil men, corrupt elements trying to wear sheep’s skin.