Maravi

Magande asks govt to state its position on acquittal

Magande asks govt to state its position on acquittal
Written by Patson Chilemba and George Chellah
Monday, September 07, 2009 2:58:23 PM

CHILANGA MMD member of parliament Ng'andu Magande yesterday asked the government to tell the nation whether they will appeal against former president Frederick Chiluba's acquittal or not.

And Transparency International Zambia (TIZ) has challenged the High Court to exercise its supervisory jurisdiction embedded in the Constitution on Chiluba's case since the Director of Public Prosecutions (DPP) has decided not to appeal.

In an interview, Magande, who is former finance minister, said the nation was in the dark on the way forward regarding Chiluba's acquittal.

He said time was running out but there seemed to be no urgency from the government to tell the people on what the way forward was.

"Just to say we must be told whether they [government] will appeal or not. Otherwise telling us 'the DPP is studying' is not the case. How long does it take to study a case?" Magande asked.

He said renowned legal experts had expressed their views on the matter, and that it should be determined by the courts of law at the highest level.

"Perhaps government should accede to that and allow the process of the law. The process of the law should be allowed to determine the matter," said Magande.

Patriotic Front (PF) president Michael Sata said PF had sought a judicial review in the High Court over the matter because it was clear that Director of Public Prosecutions (DPP) Chalwe Mchenga was not studying the judgment.

Sata said it was clear that Mchenga had already made up his mind on the issue.

"So we shall wait for the court action," said Sata.

Last week, Mchenga was quoted in the Times of Zambia as having said the state would not challenge the acquittal of Chiluba because the appeal was unlikely to be successful.

Mchenga said the evidence before court showed that the Zamtrop account from which Chiluba was alleged to have stolen about US $500,000 received money from sources other than the government.

"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," he said.

Mchenga said there was evidence before court that money in excess of US $8.5 million was paid into the Zamtrop account from other sources and Chiluba said some money had been placed into the account on his behalf.

He said 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.

"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," Mchenga said.

He said the inference favourable to Chiluba in this case was that the money drawn was from private sources.

"This being the case, the court had no option but to acquit him because the money he had drawn was not public money," he said.

Mchenga said while public concern could be a basis for instituting criminal investigations, it cannot be the basis for instituting a criminal prosecution or appealing against an acquittal.

However, Lifuka yesterday urged High Court judge-in-charge Essau Chulu to call the case of Chiluba's acquittal.

He said the state was not being truthful concerning Chiluba's acquittal by Ndola High Court registrar Jones Chinyama.

Lifuka said the Judiciary could also come in and redeem the situation.

"They [government] are not being sincere. The High Court judges have supervisory jurisdiction, which they can employ in reviewing cases particularly those handed down by the subordinate courts. It's provided for by the law," Lifuka said. "But why are they not doing that? Unless the Judiciary are saying that they are content with Chinyama's judgment. Let the judge-in-charge call the case. There is so much public outcry. It's not just the Director of Public Prosecutions who can try and redeem the situation, even Judiciary can do that."

And in a joint statement issued by Lifuka and TIZ executive director Goodwell Lungu, the duo reaffirmed that the Judiciary must step in.

"Now that the normal fourteen days period for an appeal in the Chiluba V. the People case has elapsed, Transparency International Zambia wishes to appeal to the High Court to exercise its supervisory jurisdiction embedded in Article 94 (7) of the Constitution, Chapter 1 of the laws of Zambia which provides: 'The High Court shall have jurisdiction to supervise any civil or criminal proceedings before any subordinate court ......... and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of ensuring that justice is duly administered by any such court'," they stated.

"We are aware as Transparency International Zambia that the Judiciary has in the recent past come under a lot of attack from different sections of our community for seemingly questionable judgments that have come out of our courts in the recent past. We genuinely believe that by the High Court exercising its supervisory powers, the face of the Judiciary can easily be redeemed as the record in the Chiluba case can be set straight by a higher court than the magistrates court.

"Our memories are still fresh on how the High Court exercised its supervisory jurisdiction in the Wilford Funjika V. The People case on 10th March, 2008 when the former Zambia National Service (ZNS) commandant was sent to jail for nine months with hard labour after the Lusaka High Court revoked the suspended sentence the lower court gave him. In that judgment, the High Court noted that although Funjika had at one time served Zambia loyally, diligently and honestly, grand corruption was a serious offence that needed stiff punishment."

The duo stated that their appeal comes in light of the fact that the DPP had exercised his option not to appeal the judgment of the subordinate court.

"We feel that in a country where we have a hierarchical system of courts, we might end up setting a very bad precedent if this matter is left to rest in its current form. We say this because the Subordinate Court is not the final court of jurisdiction in Zambia," the duo stated. "And in the absence of an appeal by the Director of Public Prosecutions, the High Court may still exercise its discretion to look at the record of this case and make necessary findings. Further, we appeal to LAZ not to exhibit silence on this matter but provide the necessary legal guidance. We reiterate that in a democratic society, justice must not only be done but must manifestly be seen to be done."

Recently, Chiluba was acquitted by the magistrates court of embezzling public funds. The state subsequently filed a notice of appeal in the matter but Mchenga withdraw it on grounds that it was purported to have been done in his name. Mchenga also said he wanted to study the judgment. Chief government spokesperson Lieutenant General Ronnie Shikapwasha said Mchenga was still studying the matter.

Labels: CHILUBA, MAGANDE, TIZ

posted by MrK @ 2:00 PM