Maravi

Chongwe urges Rupiah to reconsider his position on abuse of office

Chongwe urges Rupiah to reconsider his position on abuse of office
By George Chellah
Mon 08 Nov. 2010, 04:01 CAT

LUSAKA lawyer Dr Rodger Chongwe has urged President Rupiah Banda to reconsider his position on removing the offence of abuse of office because Zambians don’t trust his motives.

Analysing the recent developments on the removal of abuse of office offence clause from the amended Anti Corruption Commission (ACC) Act, Dr Chongwe urged President Banda to give a reason that makes sense.

“I gave my public support to Mr Banda in his election bid to complete the term of office left at the death of his own friend and benefactor Mr Mwanawasa. Highly as I recommended him as a friend, I did not say I would never say anything when he did wrong or that my support was unconditional,” Dr Chongwe said. “I think he is wrong in this initiative and that he has no mandate to do what he is doing in the face of the legitimate objections of the people of Zambia. I wish to say this to my friend President Mr Rupiah Bwezani Banda. Quite simply, the bulldozer approach does not always work no matter how stubborn you may announce yourself to be. Mr President, the people don’t trust your motives for removing the offence of abuse of office from our books. You have not provided them with any good cause for doing so. I cannot fathom it as it appears that it is being orchestrated to benefit those within your ambit who have acquired huge amounts of inexplicable wealth. Reconsider or give the people of Zambia a reason for it that makes sense.”

Dr Chongwe also gave his opinion on the recent article attributed to Professor Patrick Mvunga, which appeared in the public media concerning the Anti Corruption Act.

“In the Times of Zambia dated the 4th November 2010, there is an article, which is attributed to Professor Mvunga S.C,” Dr Chongwe said. “In the article, Professor Mvunga is reported as saying that the Anti Corruption Act is in need of revision. Professor Mvunga, according to the article, has said that the present Act contravenes the Constitution and that it was outlawed in 1984. According to Professor Mvunga as reported by the Times of Zambia, Justice D.K. Chirwa in the case of Mumba vs. The People decided in November 1984 that the provision in the Act was illegal. The state failed to appeal the decision and the Supreme Court has not reversed the decision of Justice D.K. Chirwa. The question could be posed: was it necessary for Zambia to enact a law against corrupt practices?” Dr Chongwe asked.

He said the legal provisions that outlawed corruption in independent Zambia were first contained in the Penal Code Chapter 146 of the Laws of Zambia.

“This legislation was exclusively concerned with corruption offences by persons employed in the public sector but did not take offence with corruption transactions by or with private bodies or agents,” he said. “It was therefore inadequate in as far as fighting corruption is concerned. The Zambia Police Force that was charged with the duty of enforcement was also unable to adequately deal with corruption offences.”

Dr Chongwe said in 1980, a Bill was passed in Parliament that culminated in the establishment of the Anti-corruption Commission as an institution that would deal exclusively with corruption cases.
“The provisions of the Penal Code relating to corrupt practices were repealed by the new Act called the Corrupt Practices Act No.14 of 1980. The actual operations of the Commission only commenced in 1982. Justice Bruce Lyle, a Judge of the Supreme Court, was appointed the first Commissioner,” Dr Chongwe said. “The Corrupt Practices Act borrowed its main features from the Corrupt Practices legislation in Hong Kong including the current Section 37 (now repealed by the Zambian legislature) that is the kernel to integrity legislations across the member states of the Commonwealth. Mumba vs. People, the authority being used as the vehicle for repealing Section 37 dealt with a different case altogether. At issue in Mumba vs. The People was Section 53 of the Corrupt Practices Act that provided that ‘an accused person charged with an offence under part IV shall not, in his defence, be allowed to make an unsworn statement, but may give evidence on oath or affirmation from the witness box.

Mumba refused to give evidence on oath in his defence. The magistrate decided against him. Mumba applied to a High Court judge to review the Magistrate’s decision. Article 20 of the 1973 Constitution provided that ‘no person who is tried for a criminal offence shall be compelled to give evidence at the trial. Justice Chirwa decided in favour of Mumba.”

Dr Chongwe stated that in 1987, the Corrupt Practices Act Number 14 of 1980 was amended.
“Notable changes were made in 1996 when the Act was repealed and in its place the Anti Corruption Commission Act, Number 42 of 1996 was enacted,” Dr Chongwe said. “The following changes were made to the Act: establishment of the commission as an autonomous institution, creation of the board of 5 members and a directorate, repeal of protection of whistle-blowers, removal of minimum mandatory sentence of 5 years for an offence of corruption. The 1973 Constitution of Zambia was replaced in 1991. The 1991 Constitution was itself amended under Act No. 18 of 1996. Article 18(2) provides that every person who is charged with a criminal offence (a) shall be presumed to be innocent until he is proved or has pleaded guilty,” he said. “And Article 18(12) provides that - nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of paragraph (a) of Clause (2) to the extent that it is shown that the law in question imposes upon any person charged with a criminal offence the burden of proving particular facts. The above provision in our Constitution strengthens the retention of Section 37 of the Anti Corruption Commission Act because the law is not offensive of any provisions of our Constitution. The case cited by Professor Mvunga was impliedly dealt with when the Corrupt Practices Act was repealed and replaced by the Corrupt Practices Act in 1987.

“In any event the current amendment is an amendment to Section 37, which deals with an explanation required from an accused that is found with wealth not commensurate with his emoluments. The accused is not being requested to give evidence on oath as was the case in Mumba vs. People cited by Professor Mvunga so as to give an excuse for the government to scuttle the current Anti-Corruption legislation. The foregoing is my opinion of the arguments on the matter of abuse of office legislation as published in the press by my friend and colleague Professor Patrick Mvunga S.C. and of Mr Bradford Machila the Honourable Minister in the government of His Excellency Mr Rupiah Banda.”

Labels: ACC, CORRUPTION, ROGER CHONGWE, RUPIAH BANDA

posted by MrK @ 4:14 PM