Friday, November 05, 2010

Has Mvunga joined the liars?

Has Mvunga joined the liars?
By The Post
Fri 05 Nov. 2010, 04:00 CAT

It is sad that those behind the removal of the abuse of office offence from the Anti Corruption Commission Act are trying to justify what they are doing with lies, half-truths and all sorts of distortions. But no lies should be allowed to be told to the masses of our people. And whenever lies are told, they must be exposed.

Professor Patrick Mvunga, a very close friend of Rupiah Banda who the President sometimes invites to accompany him on state-sponsored trips, has joined the band of those who are trying to defend this government’s acts of desperation by removing the offence of abuse of office from the Anti Corruption Commission Act.

In yesterday’s edition of the state-owned and government-controlled Times of Zambia, Prof Mvunga was quoted saying that “the current Anti Corruption Commission Act should be amended because it contravenes the Constitution and was outlawed in 1984 by the High Court”.

This is a lie. It is not true that the Anti Corruption Commission Act contravenes the Constitution. We know that George Kunda and his friends have been trying to convince our people that the Act forces people who are accused of corruption to talk. They also lie that the Act presumes people guilty of corruption in contravention of the Constitution.

There is nowhere in the Anti Corruption Commission Act where anyone is forced to give up their right against self-incrimination. The basic building block of this right is an accused person’s entitlement to remain quiet and not help his accusers to find him guilty of the offence that they allege against him. This is not a right that is peculiar to the Anti Corruption Commission Act offences. This is true of every offence that is tried in our courts of law.

An accused person has got the right to say something in his own defence or to keep quiet. But as we have said before, no one who is tried for an offence should expect that silence will save them when the evidence against them is overwhelming. In the same way that an accused person is free to keep quiet, our courts are also free to draw the necessary inferences that have to be drawn from the evidence before them.

In matters of corruption and abuse of office in section 37, what the current Anti Corruption Commission Act requires is that the prosecution have to show that the accused person has assets, for instance , that he or she cannot justify from their legitimate earnings. The prosecution has to demonstrate that fact. Once that is done, it is up to the accused person to show that in fact they are wrong. But no accused person is forced or required to open their mouth, whether on oath or otherwise.

If they can discredit the case of the prosecution through cross-examination, for instance, they are entitled to be acquitted. This is the law as it stands today. There is also the presumption of corrupt intent when a public officer is found to have received or acquired wealth in circumstances that are consistent with corruption. In such a case, it is up to the prosecution to show that the acquisition of wealth is consistent with corruption or abuse of office. Once they prove that, the court must put the accused on his defence.

At that stage, the accused can do three things: first, he can opt to keep quiet; second, he can give evidence on oath and be opened to cross-examination; third, he can opt to make an unsworn statement - as Frederick Chiluba did - in which case he is not open to cross-examination. This is the law as we know it.
We do not know why a well-educated man such as Prof Mvunga would choose to take a public platform and make a misleading analysis to defend what is indefensible, to justify what is unjustifiable.

But we are not surprised because this is not the first time highly educated Africans have tried to defend what is indefensible and to justify what is unjustifiable. We saw how intellectuals made Bokassa an emperor and defended and justified that nonsense. Idi Amin was defended in his madness by intellectuals. Closer to home, Chiluba’s thefts were helped and facilitated by great intellectuals - doctors and professors.

Who can argue that Katele Kalumba is not an intellectual? Prof Mvunga’s client in the recently ended corruption trial Prof Benjamin Mweene is another great intellectual who facilitated Chiluba’s thefts.

Prof Mvunga says that “the Act was thrown out in 1984 when judge Phillip Chirwa ruled that it contravened the Constitution”. And Prof Mvunga adds that “in the case of Mumba vs The People case of 1984, Mr Justice Chirwa ruled that the Act was irregular because it was against the Constitution after it was referred to the High Court from the magistrate”.

Prof Mvunga noted that “the provision had existed illegally since November 1984 when it was successfully challenged and the state did not appeal while the Supreme Court had never reversed its effect because it was against the ideal justice system”. Prof Mvunga also said that “the Penal Code has retained the abuse of office clause except that it presumes the accused person innocent until proven guilty…”

It is not true that section 37 of the Anti Corruption Commission Act was thrown out by justice Phillip Chirwa in 1984 and that it now existed illegally. This is a lie. There was no Anti Corruption Commission Act in 1984. Further, there was no section 37 of the Anti Corruption Commission Act in 1984 that was thrown out by justice Chirwa. There is no way justice Chirwa could have thrown out a provision in 1984 of an Act which was not in existence. We say this because the Anti Corruption Commission Act was only enacted in 1996, that is 12 years after the date when Prof Mvunga claims section 37 was thrown out.

Prof Mvunga also claims that section 37 or its equivalent was outlawed in the case of Mumba vs The People in 1984. This is also a lie. Mumba vs The People did not deal with abuse of office. That case dealt with issues that are very different from what section 37 deals with.

In summary, Section 37 tries to regulate the illicit enrichment of public officers through corruption and abuse of office. In other words, it prohibits public officers from maintaining a lifestyle or acquiring assets that are not consistent with their lawful earnings. The reasoning for this type of prohibition is very clear.

Many public officers, by virtue of the functions that they perform, exercise authority over vast national resources that are meant to be used for the common good. It is easy, as we have seen in the cases of Chiluba and his tandem of thieves, for criminally minded public officers to turn their public offices into an occasion for corruption and personal enrichment at the expense of the public services that the resources they superintend are supposed to provide. This is why those who wrote this law, quite rightly, provided that public officers should not be allowed to stealthily, without the possibility of detection of the crimes that they are committing, acquire wealth at the expense of the public that they are meant to serve. There can never be anything unconstitutional about protecting public resources and interests from the sticky fingers of criminals who occupy public offices.

There was nothing in the Mumba case that allows public officers to acquire property, wealth or other advantage illicitly without being required to account. The Mumba case dealt with a very different issue. It did not even deal with the Anti Corruption Commission Act as is being suggested by Prof Mvunga. That case dealt with the old corrupt practices Act. Specifically, it dealt with section 53(1) of that Act. Section 53 (1) of the corrupt practices Act required an accused person, who having been found with a case to answer and decided to give evidence, to do so under oath.

The implication of this requirement was that if an accused decided to talk in court, he was denied the opportunity to talk without being cross-examined. This is because once an accused person takes an oath, his evidence is subject to cross examination. This was the issue in the Mumba case. The court found that this requirement contravened the accused person’s right to elect not to talk or when he talks to be able to give an unsworn statement which would protect him from cross-examination. There was nothing with that case that came anywhere near what Prof Mvunga is claiming.

It is good that we have learnt some law and can now argue with people like Prof Mvunga who want to twist the law to suit the requirements of their friends.
It is clear that Rupiah and his friends are running scared of this law because they cannot explain the wealth that they are generating for themselves and their families. A public officer who occupies his position with an undivided intention to serve the people would have no problem with being called upon to account for their actions and in this case for wealth that they may have acquired whilst occupying public office.

Why should anyone want to occupy public office and at the same time be so determined to become wealthy by doing all sorts of businesses? What time are they going to use to run those businesses, if not public time?

Everybody knows that if you allow public officers to run wild and do as they please, conflicts of interest will result in our people not receiving proper services, and when they do, they will only receive shoddy services.

The Auditor General’s reports and the cases that have been before our courts are there to demonstrate what we are talking about. We all know that there are far too many briefcase companies belonging to ministers, permanent secretaries and other public officers that are doing corrupt business with the government at the expense of our people.

It is this abuse of public office that Rupiah is defending. He knows that he cannot use the truth to defend such abuses. It is no wonder they are resorting to lies, half-truths and all sorts of distortions. Is it possible that Prof Mvunga has hired himself out to this band of liars?

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