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Chinyama erred in law to acquit Chiluba - Prof Ndulo

Chinyama erred in law to acquit Chiluba - Prof Ndulo
By George Chellah
Tue 02 Mar. 2010, 04:00 CAT

Fredrick Chiluba (L) was charged with six counts of theft by a Public Servant
PROFESSOR Muna Ndulo has observed that Ndola High Court Registrar Jones Chinyama, sitting as magistrate erred in law in not finding former president Frederick Chiluba guilty on charges of theft last August.

According to Ndulo, a Zambian law Professor at United States’ Cornell University, magistrate Chinyama erred in law in finding that Chiluba's unsworn statement was sufficient in itself to rebut evidence established on oath.

Prof Ndulo made the observation in his opinion on the judgment delivered by Chinyama in the case of The People Vs Frederick Chiluba, Faustin Kabwe and Aaron Chungu.

“Fredrick Chiluba was charged with six counts of theft by a Public Servant contrary to sections 272 and 277 of the Penal Code, Chapter 87 of the Laws of Zambia.

He was president of Zambia when the alleged thefts were committed. The magistrate acquitted Frederick Chiluba on the grounds that although the monies used by Chiluba to pay his lawyers and children came out of the ZAMTROP government account and could be traced back to the Ministry of Finance, the prosecution had failed to prove that the monies were not his own monies put in a government account,” Prof Ndulo stated.

“The Magistrate accepted Chiluba's explanation that he had private monies in the Zamtrop account and he, Chiluba, believed that it was those monies which were used to make the relevant payments. Effectively, holding that Chiluba did not dishonestly use government monies.

The magistrate was not convinced that Chiluba did not have any monies of his own in the ZAMTROP government account.

“In coming to this conclusion, the trial magistrate relied on an unsworn statement that Chiluba made in which he, without disclosing the sources of those monies, claimed that he had a large amount ($8.5 million) of private monies in the ZAMTROP government account (JP 242).”

Prof Ndulo, who is also director at Cornell University's Institute for African Development and honorary Professor of Law, Faculty of Law, University of Cape Town, stated that magistrate Chinyama erred in law in finding that an unsworn statement was sufficient in itself to rebut evidence established on oath.

“Even assuming that private money was deposited in the government account, there was no evidence to show that Chiluba was the intended beneficiary and there was no evidence to show that the money was paid into the Zamtrop account for a purpose other than a government purpose.

The necessary inference, in the light of government regulations concerning the use of government accounts and the status of money in them, is that the payments relied on by Chiluba were for a government purpose and/or intended for government beneficially,” Prof Ndulo stated.

“There was no evidence to displace that inference; Chiluba's unsworn statement, unsupported by evidence, was not capable of giving rise to an inference that the monies might be personal monies and/or intended for Chiluba beneficially.

The magistrate misdirected himself on the law relating to: the evidential value of unsworn statements; inferences in criminal cases; on the evidential burden of proof and on his treatment of members of the Task Force as witnesses with an interest to serve and therefore biased.”

Prof Ndulo stated that the prosecution proved its case beyond reasonable doubt.
“And the magistrate, having found that Chiluba had a case to answer, erred in law in not finding him guilty in the absence of proof to the contrary.

At the end of the day, all the magistrate had before him to rebut the Prosecution case which prima facie established the guilt of the accused was a mere unparticularised, uncorroborated, unsworn, untested assertion which, if true, would represent a gross breach of his fiduciary duty and itself raise the specter of corruption,” Prof Ndulo stated.

“The unsworn evidence made by Chiluba was not evidence in law and the court erred in relying on it to disprove the cogent evidence produced by the prosecution that 1) monies were taken by the accused from ZAMTROP, a government account, and 2) by law money in a government account is deemed to be government money.”

Labels: CHILUBA, CORRUPTION, COURTS, JONES CHINYAMA, MUNA NDULO

posted by MrK @ 6:06 AM