Maravi

Decision to let Chiluba off the hook amazes Malila

Decision to let Chiluba off the hook amazes Malila
By Amos Malupenga, Maluba Jere and Mwala Kalaluka
Mon 16 Aug. 2010, 14:00 CAT

Former Attorney General Mumba Malila yesterday said High Court judge Evans Hamaundu’s decision to throw out an application by the state to register the London High Court judgment that found former president Frederick Chiluba and others liable for theft of about US $46 million public funds has amazed him.

And former finance minister Ng’andu Magande said it was frustrating and surprising that known plunderers are walking the streets freely in designer suits when he who has not stolen public money is getting his suits torn by members of the ruling party.

Commenting on judge Hamaundu’s judgment, Malila said he was amazed at the turn of events.

“I am amazed,” Malila said. “That’s all I can say under the circumstances. I am amazed, totally amazed. This is all I can say because whatever I will say, some people will choose to misunderstand it.”

Magande said judge Hamaundu’s decision was puzzling. He said not too long ago at the just ended National Constitution Conference (NCC), some people were arguing against the continued following of British laws in Zambia.

“Some of us were of the view that we should not continue to follow British laws because we are no longer a colony of Britain,” Magande said. “But some top lawyers in this country including the Vice-President who is also Minister of Justice George Kunda said ‘we have to carry these laws forward’. Now we are being told that this particular law touching on the registration of foreign judgments is not available. This is very confusing for me as a layman.”

Magande said the whole development was surprising and frustrating.

“It is frustrating because someone will soon start behaving like a statesman. We hear that he will soon be going out of the country as a statesman,” Magande said. “I say it is frustrating because, like someone told me yesterday, some people who the country knows as plunderers who stole public resources are walking the streets freely in designer suits when some of us who have never stolen public resources are having our suits torn.”

Magande said there was need for President Rupiah Banda to give the public confidence that all was well in the country. He said President Banda should not be seen to be protecting people who had stolen public money.

But Chiluba said he welcomed the judgment although he would reserve more comments until he read judge Hamaundu’s judgment.

Global Organisation of Parliamentarians against Corruption vice-president Given Lubinda said the decision to throw out the application to register the London High Court judgment had generated more questions than answers.

Lubinda, who is also opposition PF spokesperson, said the judgment was extremely disturbing and called for further reflection on the efficacy of national, regional and international statutes.

“…National in the sense that this is a matter that was prosecuted by the Attorney General of the country and at great expense to the taxpayer when then Minister of Justice who is Vice-President now led a team of eminent lawyers to go and secure the judgment in London and looked at it in the context of international treaties and protocols with regard to the management of international crime,” Lubinda said. “One important international treaty is the United Nations convention against corruption. In there, there is a provision for trans-boundary investigations and inter-governmental cooperation in the pursuit of corruption.”

Lubinda said the whole world would read the judgment with bewilderment. He also said the refusal by the Zambian court to register the London judgment did not change the fact that Chiluba and his co-accused were found liable.

“The refusal by the court to register the judgment does not quash the London judgment. What they have done is to refuse to recognise it,” he said. “His Chiluba’s accomplices in the matter who were in the jurisdiction of the UK were surcharged and now that the case has not been registered, it is incumbent upon the government to explain to the people of Zambia how they will pursue Chiluba whose case was tried, and the court in London, based on evidence before it, judged that he was liable. We are fortunate that the Minister of Justice who successfully prosecuted the matter is now Vice-President.”

And on judge Hamaundu quoting a Supreme Court judgment where a British national Kenneth Spooner sought to have his children taken back to the UK after obtaining an order in that country, Lubinda said the decision was misplaced because the two cases were tried on different pieces of legislation.

“You cannot draw parallels on cases that are being tried on different pieces of legislation. The Spooner case was tried on the law of custody whilst this one was on embezzlement,” Lubinda said. “And corruption in this context has an international convention which should guide all nations and, therefore, drawing parallels is misplaced. Had there been a precedent on a president being acquitted, that would have been appropriate.”

And judge Hamaundu has noted that some of Chiluba’s arguments against the enforcement of the London High Court judgment in Zambia were irrelevant to the issues under his consideration.

This is in a matter in which Chiluba and others challenged an application order granted to the Zambian government, through the Attorney General, for the registration of the judgment.

In his judgment delivered last Friday, judge Hamaundu said some arguments that were devoid of fact and full of legal arguments were extraneous to the issues at hand. He said having obtained a judgment in its favour in the London High Court on May 4, 2007, the Zambian government (judgment creditor) applied before the late judge Japheth Banda for leave to register the said judgment in the Zambian High Court under the provisions of the foreign judgments (Reciprocal Enforcement) Act, Chapter 76 of the Laws of Zambia.

“To support that application, the judgment creditor argued that the judgment which it sought to register would not be liable to be set aside under the foreign judgments (Reciprocal Enforcement) Act,” judge Hamaundu said.

He noted that the government argued that the judgment was one that was obtained within her Britannic Majesty’s kingdom and was not one that was obtained under fraud, among other arguments.

“Mr. Justice Banda granted the Judgment Creditor leave to register the judgment,” judge Hamaundu said. “The judgment creditors (Chiluba and others) then launched this application. Before it was heard, Mr Justice Banda died. The application was then allocated to me to deal with. Therefore, the order granting leave to the judgment creditor to register the said judgment shall be deemed to have been made by myself.”

Judge Hamaundu said together with the application, Chiluba, Faustin Kabwe and Aaron Chungu, herein referred to as judgment debtors, filed sworn affidavits.

“The affidavit of Dr Chiluba comprises, mainly, of an outline of the origin and purpose of the ZAMTROP account and an outline of the events leading to his being charged with criminal offences as well as to the civil action being commenced against him and fellow judgment debtors in the London High Court,” judge Hamaundu said. “The rest of the affidavit consists, mainly, of legal deductions and opinions. The contents of the affidavit as regards the origin and purpose of the ZAMTROP account and the events leading to Dr Chiluba’s indictment are outside the scope of the issues that I need to consider in this application. Therefore, I find it unnecessary to highlight those averments.”

Judge Hamaundu pointed out that the contents of the affidavits that comprise legal deductions and opinions contravene Order V rules 15 and 16 of the High Court Rules Chapter 27 of the Laws of Zambia.

“Similarly, I find it unnecessary to highlight those legal deductions and conclusions,” judge Hamaundu said. “There are, however, some paragraphs which contain certain averments that are relevant to his application.”

Judge Hamaundu then highlighted the issues where Chiluba averred that after it became clear that their relentless resistance to the London High Court’s jurisdiction would not achieve any desired result and that their participation in those proceedings would merely legitimise them, they withdrew from any further participation.

“Those were Dr Chiluba’s averments insofar as they are relevant to the issue at hand,” judge Hamaundu said.

He said in their joint affidavit, Kabwe and Aaron Chungu agreed with the statements of fact raised by Chiluba in his affidavit.

“The two deponents, then, proceeded to make averments that were devoid of fact but full of legal argument and other matters which are extraneous to the issues at hand. Therefore, I find it unnecessary to highlight any of those issues,” he said.

Judge Hamaundu said in the affidavit in support of her application, another judgment debtor, Stella Chibanda, mainly raised issues in defence of the claim that was before the London High Court of Justice.

“I am not considering the merits of the claim that was before the court,” judge Hamaundu said. “I am only deciding whether the judgment of that court should be enforced by direct registration. Therefore, those issues are irrelevant to the application at hand. However, she did in a few paragraphs, raise issues that are pertinent to this application.”

Judge Hamaundu further noted that the Zambian government filed an affidavit in opposition to the judgment debtors’ application to set aside the order granting leave to register the London High Court judgment.

“In that affidavit, the judgment creditor averred as follows: The claim was brought as part of an effort to recover assets alleged to have been misappropriated and expatriated during the Presidency of Dr Frederick Chiluba,” judge Hamaundu noted.

He also noted that Chiluba and others filed further affidavits in which they averred that they had since appealed against the judgment of the London High Court.

Judge Hamaundu said a perusal of the country’s statutes revealed that the foreign judgments (Reciprocal Enforcement) Act was not the only statute by which all foreign judgments should be considered for registration.

“The position that emerges from the cases and the statutes that I have cited is thus; whenever a judgment creditor seeks to enforce, here in Zambia, a judgment or order made by a foreign court, the creditor should first consider whether judgments and orders of such foreign court are enforceable under the Foreign Judgments (Reciprocal Enforcement) Act or, indeed, under any other written law,” judge Hamaundu said.

He said if such judgments were not enforceable under any of the written laws, then the creditor should seek to enforce such judgment at common law.

“Therefore, the first issue to be determined in this application is whether the judgment of the London High Court of Justice is enforceable either under the Foreign Judgments (Reciprocal Enforcement) Act or under any other written law,” judge Hamaundu said. “I have searched in our laws, including the ‘Applied Laws’ for any other statutory provision by which judgments obtained in the courts of the United Kingdom can be enforced by direct registration. Other than the Maintenance (Enforcement) Orders Act and, perhaps, the Matrimonial causes Act No. 20 of 2007, I have been unable to find any. Of course, those two statutes do not apply to judgments for payment of money.”

Judge Hamaundu said in the circumstances, the Zambian government should have sought to enforce the London High Court’s judgment by recourse to the common law, under the principles of “Private International Law” or “Conflict of Laws”, as the principles are alternatively known.

“Therefore, in the circumstances of this case, the judgment creditor ought to enforce the London High Court Judgment at common law by commencing an action founded on it as a cause of action. These proceedings do not constitute such an action,” said judge Hamaundu. “For the foregoing reasons, the judgment debtors’ application to set aside the order granting the judgment creditor leave to register the judgment of the London High Court of Justice succeeds. I hereby set aside the order that was granted to the judgment creditor on the 10th July 2007. In view of the legal issues that this matter has raised, I order that either side bear their own costs.”

Labels: CORRUPTION, COURTS, EVANS HAMAUNDA, FREDERICK CHILUBA, MUMBA MALILA, NG'ANDU MAGANDE

posted by MrK @ 6:58 AM