Kabwe, Chungu protest over donors’ concerns on London judgment

Kabwe, Chungu protest over donors’ concerns on London judgment
Written by George Chellah
Saturday, September 26, 2009 6:13:28 PM

DEFENDANTS in the London judgment have protested to Netherlands Ambassador Harry Molenaar on the concerns raised by donors during their private meeting with President Rupiah Banda over the registration and enforcement of the judgment against Chiluba, Aaron Chungu and Faustin Kabwe. Defunct Access Financial Services directors Kabwe and Chungu protested through their lawyers Simeza, Sangwa and Associates.

In a letter dated September 23, 2009 to Ambassador Molenaar, which was also copied to President Banda, foreign affairs minister Kabinga Pande and Attorney General Mumba Malila, Kabwe and Chungu, the defendants complained over the comments attributed to Ambassador Molenaar during the Cooperating Partners Group Troika meeting with President Banda.

"Your Excellency, our clients' attention has been drawn to the statements attributed to Your Excellency speaking on behalf of the "Cooperating Partners Group Troika," in the issue of The Post newspaper of 22nd September 2009, on the registration and enforcement of the London judgment. Your Excellency's comments are prejudicial to our clients, who have challenged registration of the judgment, and have the potential to deny them their right to a free and fair hearing of the issues in contention guaranteed in our Constitution," the defendants' lawyer John Sangwa stated.

"If Your Excellency had acquainted yourself with the law in Zambia governing the registration of foreign judgments and followed the events in the courts, we have no doubt Your Excellency would not have issued these statements, let alone bring up this issue in the discussions with the President. Such comments are understandable only if Your Excellency has no understanding of the laws of Zambia and respect for its judicial system."

He stated that the Zambian legal system has its own shortcomings and challenges.

"But it is the only system we have under our Constitution for the resolution of disputes. Your Excellency's pronouncements undermine the very ideals your government preaches to countries such as Zambia and which you prescribe as conditions for foreign assistance: the rule of law and respect for human rights. Zambia is a sovereign country; for any foreign judgment to be registered and enforced as though it were a judgment of a superior court in Zambia, certain legal requirements must be met," Sangwa stated.

"There is no provision for automatic registration and enforcement of foreign judgments. The judgment of the London High Court of Justice has to meet certain standards stipulated in the Foreign Judgment (Reciprocal Enforcements) Act, chapter 76 of the laws of Zambia. That it was delivered by a white British judge does not mean it must be registered and enforced in Zambia without question.

"Contrary to the comments attributed to Your Excellency, the judgment in issue has in fact been registered in the High Court for Zambia pursuant to the provisions of the Act. The same Act gives the judgment debtors, our clients, the right to apply to set aside registration, which right they have exercised. The case is being prosecuted within our judicial system like any other case and the office of the Attorney General is deeply involved on behalf of the government."

He stated that by raising concerns to President Banda over a matter that was in court, Ambassador Molenaar has clearly shown double standards.

"You do not believe that the principles of separation of powers, the rule of law and human rights, cherished in your country, are also important and valued in Zambia. Your Excellency is in effect suggesting that President Banda ignores these values and dictates to the courts what they should do in relation to the registration and enforcement of the judgment of the London High Court and appease Your Excellency," Sangwa stated.

"Your comments equally have the potential of bringing unnecessary pressure and undermining the independence and impartiality the judges tasked with the responsibility of determining this case. Because Your Excellency enjoys diplomatic immunity we are constrained to state that the comments attributed to Your Excellency are in contempt of the court as they relate to a matter, which is a subject of adjudication by the Zambian courts.

"But this immunity should not be employed to undermine our clients' rights and freedoms guaranteed under our constitution and recognised under the international law. Our instruction is to ask Your Excellency to refrain from commenting on this matter and allow it to run its full course within the Zambian judicial system."

Diplomats told President Banda that his government's failure to register and enforce the London judgment against Chiluba will send a strong message to the international community that he is not committed to fighting corruption.

And the Cooperating Partners Group Troika told President Banda that his personal leadership is paramount in safeguarding the international reputation of Zambia in the fight against corruption and the quest for good governance.

The Cooperating Partners Group Troika comprises embassies/high commissions [or their diplomats] accredited to Zambia and other key donor governments and international organisations.

The CPG Troika representative that met President Banda, Vice-President George Kunda and other senior government officials at State House during a private meeting included US embassy, the World Bank and the Netherlands.

According to a document accessed by The Post, which Netherlands Ambassador to Zambia Harry Molenaar presented, the donors noted that Zambia's reputation had come under scrutiny within and outside Zambia.

"I should mention that of late, Zambia's reputation when it comes to good economic governance and full commitment in the fight against corruption has come under scrutiny. High profile cases such as the criminal case against former president Chiluba are followed with great interest and are a benchmark to gauge Zambia's commitment in the fight against corruption," the CPG said.

"In this respect we wonder why a judgment of a court of first instance on such a high profile case is not tested by the state through a notice of appeal at a court that is more in line in status with the weight of the case. In this respect, donor countries follow with even greater interest the registration and enforcement by Zambian courts of the London [High Court] civil case judgment. Should the Zambian government decide not to register and enforce the civil judgment, it would be forfeiting an opportunity to recover some or all of the $45 million [US $ 46 million]. Such decision would send a strong message to the citizens of Zambia, our taxpayers and political leaders."

However, the CPG said it was not only the fight against corruption that count but also preventative measures that needed more and focused attention such as the legal framework on procurement, strengthening of accountability systems and transparent management of public funds.

The CPG said their nationals and parliamentarians were holding them more accountable if the money donated to Zambia was not properly spent.