Maravi

Rupiah wants to destroy legal structures – Sondashi

Rupiah wants to destroy legal structures – Sondashi
By Patson Chilemba and By Ernest Chanda
Sun 19 Sep. 2010, 04:00 CAT

FORUM for Democratic Alternatives (FDA) president Ludwig Sondashi has observed that President Rupiah Banda’s government wants to destroy the legal structures for their selfish motives. And Lusaka lawyer Abraham Mwansa has warned that political interference in the judiciary could force citizens to take the law in their own hands.

Commenting on the government’s move to remove the offence of abuse of office from the revised Anti-Corruption Commission (ACC), Sondashi, who is a Lusaka-based lawyer, stated that the justifications being given by those in government like Vice-President George Kunda and works and supply minister Mike Mulongoti to remove the offence were annoying and unjustifiable.

He stated that the reasons given that it was the prerogative of the government to remove the clause, could only be justified if they were honest and carrying out the action in the interest of the Zambian people, but this was not the case.

Sondashi stated that arguments that the offence lacked effectiveness and that it was a duplication were deceptive and not true.

“I say that it is not true, because Section 99 of the Penal Code Cap 87 which Kunda refers to, provides for the offence of ‘abuse of authority of office’ and not specifically ‘abuse of office’ as provided in the corrupt practices Act.

Any lawyer, would know that even this, the addition of the word ‘authority’ alone, adds different dimensions of the interpretation to the offence under discussion,” Sondashi stated.

“Secondly, it is equally not true to argue that the offence of ‘abuse of office’ in Cap 91 lacks effectiveness. On the contrary, the offence of ‘abuse of office’ in the corrupt practices Act is more effective than the offence of ‘abuse of authority of office’ in the Penal Code.”

Sondashi stated that the corrupt practices Act makes provision of shifting the burden and standard of proof upon the accused person where as the burden and standard of proof under the Penal Code Act rests on the prosecution and should be beyond any reasonable doubt.

“The corrupt practice Act in addition introduces a far reaching element of prosecuting a person in the possession of ‘pecuniary resources or property reasonably suspected of having been corruptly acquired,’ which is not there in the Penal Code,” Sondashi stated.

“Under the corrupt practices Act, a public officer can also be prosecuted if he is found to have maintained a standard of living above that which is commensurate with his present or past official emoluments; or when he receives a benefit or any services which he may reasonably be suspected of having received corruptly.”

Sondashi stated that as it could clearly be seen, the argument calling for leaving the offence in the Penal Code was untenable.
He stated that the Penal law by its nature did not entertain offences that reduced the standard and burden of proof.

“Secondly, it is necessary to have a separate legislation specifically targeted to dealing with corruption, since this offence is difficult to prosecute because it is committed in secrecy by two interested persons.

The government is therefore not justified to repeal this particular provision and are simply doing so for fear of prosecution after their term of office,” Sondashi stated. “This is the reason why they have targeted to remove a particular offence which deals with public offers only.”

Sondashi stated that there was need to make the government understand the genesis of the corrupt practices Act, Cap 91, saying it was in the 1980s when Dr Kenneth Kaunda decided to legislate against corruption in Zambia.

He narrated that to implement this decision, Dr Kaunda directed then minister of legal affairs Gibson Chigaga to work with him (Sondashi) since he was minister of state and solicitor general to bring about legislation to combat corruption in the country.

Sondashi stated that Chigaga directed him to work closely with then chief parliamentary draftsman, a Mr. Williams, in drafting the legislation.
“We faced a lot of difficulties in coming up with the current law.

This was because of the principles of criminal law and the constitution which dictated against the shifting of the burden and standard of proof as well as the presumption of corrupt intention,” Sondashi stated.

“No wonder the High Court in due course later had to rule some of the provisions in the Act as against the constitution and unlawful. This is because we were desirous of overcoming the weaknesses found in the Penal law in the prosecution of corruption offenders.”
Sondashi stated that they worked hard to come up with the corrupt practices Act, which was enacted by Parliament and assented to by Dr Kaunda on September 24, 1980.

“I warn the government of Rupiah Banda against playing with this law which has stood the test of time,” he stated.
Sondashi stated that he did not like people who destroyed legal structures for their selfish motives without understanding how those structures were arrived at.

And Mwansa has called on the government to explain whether or not they have considered the reasons advanced in moving the abuse of office offence from the Penal Code to the Anti Corruption Commission (ACC) Act.
He said so far the offence has worked well in its current location. “I think they have to look at the reasons advanced in putting that offence in the ACC Act.

I’m sure there was some mischief, which the government of the day had discovered when the offence was in the Penal Code. Now the question, has that mischief been cured? If not, why then take it back to a weak position? In any case that part of the law has served society very well,” said Mwansa.

Mwansa further observed that when people completely lose confidence in the judiciary, they get frustrated and make their own decisions. He feared that if not controlled, such a situation could lead to total collapse in the justice system.

“The judicial office should be independent and there are no two ways about it. We all know that in the midst of conflicts in society, people run to the judiciary for justice.

And in this way an independent judiciary instills confidence in the masses. But if you have a judiciary that is not independent, people get frustrated and take the law in their own hands. And in my view this situation can be appalling. So, there is need to leave the judiciary absolutely independent for the institution to gain people’s confidence,” said Mwansa.

Labels: JUDICIARY, LUDWIG SONDASHI, RUPIAH BANDA

posted by MrK @ 9:07 PM