Mumbuna dropped from prosecuting PF MPs honking case
By Mwala Kalaluka
Tue 07 Sep. 2010, 04:30 CAT
LUSAKA Division Prosecution Officer (DPO) Frank Mumbuna has been replaced from prosecuting the honking case involving two PF parliamentarians after he exchanged words with chief resident magistrate Charles Kafunda in court last week.
And Inspector General of Police Francis Kabonde yesterday said his office has received correspondence from Lusaka Police Division pertaining to Mumbuna’s dismissal from magistrate Kafunda’s court for unruly conduct.
This is in a matter where two PF parliamentarians, Jean Kapata of Mandevu and Mumbi Phiri of Munali are in court for allegedly hooting unnecessarily contrary to Section 233(1) and (2) of the Road Traffic Act number 11 of 2002. They are also charged with the offence of conduct likely to cause the breach of the peace.
Mumbuna was last Tuesday dismissed from prosecuting the case after he made rude remarks against magistrate Kafunda.
When the matter came up for continued hearing of the defence yesterday, another police prosecutor, Dennis Manda, took up the cross-examination of witnesses from where Mumbuna had left after his dismissal.
And Kabonde said in an interview yesterday that his office had received correspondence from Lusaka Police Division relating to Mumbuna’s dismissal from court by magistrate Kafunda.
“But you know that officer (Mumbuna) is under Lusaka Province. He has a CO (commanding officer). That is the man who can take action,” Kabonde said.
Asked if he was officially aware of the matter, Kabonde said: “Like all of us read in The Post and there are some correspondences. So we are waiting from the commanding officer. We read about it and correspondence from Lusaka Division. They have written to us that they are handling the matter.”
But when reached to comment on whether Mumbuna’s replacement by Manda in the honking case meant he had also been replaced as Lusaka DPO, Lusaka Province police commanding officer Greenwell Ng’uni described the issue as administrative.
“That is an issue of administration we can’t discuss to the press,” Ng’uni said.
When told that his office had written to the I.G’s office over Mumbuna’s dismissal, Ng’uni expressed surprise over the revelation.
“Who has written? I am not aware. Lusaka, we have written the I.G! No, no, who has written?” Ng’uni asked. “I was supposed to write.”
However, when told Kabonde had just confirmed that his office has received correspondence from Lusaka Division over Mumbuna’s matter, Ng’uni reiterated that the issue was administrative.
“These are administrative issues,” said Ng’uni.
Efforts to get Mumbuna proved futile as his phone went unanswered. Last Tuesday, the Lusaka Magistrates’ court room was stunned by the drama between Mumbuna and magistrate Kafunda.
When the defence witness, Phillias Phiri, who is Mumbi’s son, was being cross-examined by Mumbuna, there was some noise from the holding cells within the court premises.
Magistrate Kafunda alerted Mumbuna that there was noise in the court premises and he should do something about it. But Mumbuna said it was not his responsibility to stop people from making noise.
However, magistrate Kafunda reminded Mumbuna that as DPO, he was in charge of the court premises and it was therefore his duty to stop the people from making noise around court premises.
Magistrate Kafunda further reminded Mumbuna that it was his duty as DPO to ensure that court proceedings were not disturbed.
But Mumbuna said if magistrate Kafunda wanted that done, he should have addressed him in chambers and not in open court at a time when he was cross-examining.
The exchange continued with Mumbuna saying he was not going to allow magistrate Kafunda to humiliate him the way he was being humiliated.
However, magistrate Kafunda advised Mumbuna not to get into a heated exchange with him.
Magistrate Kafunda said he was not going to condone the rudeness that Mumbuna was exhibiting in open court since he was a senior prosecutor.
But Mumbuna said he could not allow anybody to humiliate him in front of all the people and to disturb his cross-examination.
When magistrate Kafunda told Mumbuna that in his arguments with him, he was failing in his duties of making sure that the proceedings were not disturbed, Mumbuna replied that he had never failed in his duties and that was why he had been appointed DPO.
This prompted magistrate Kafunda to dismiss Mumbuna from prosecuting the case until another prosecutor was found.
After the pronouncement was made, Mumbuna parked his bags, thanked the magistrate and walked out of court before saying: “I can’t allow anybody to humiliate me.”
Mumbuna’s stunt with magistrate Kafunda left everybody in the courtroom bewildered and the accused didn’t know what to do.
Magistrate Kafunda stood down the case and went back to his chambers.
A few minutes later, the court marshal came and informed the people that the case had been adjourned to September 6, 2010.
This is the second time that Mumbuna is being dismissed from court for misbehaving.
In 2004 Mumbuna, as North-Western Province DPO, was dismissed by a senior resident magistrate in Solwezi from prosecuting cases.
He was later transferred from North Western Province to Lusaka.
Labels: CHARLES KAFUNDA, COURTS, FRANCIS KABONDE, FRANK MUMBUNA, GREENWELL NG'UNI, JEAN KAPATA
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Magistrate Kafunda performed his duties fearlessly – Prof Ndulo
By Mwala Kalaluka
Wed 18 Nov. 2009, 04:01 CAT
UNITED States University of Cornell-based Zambian Professor of Law, Muna Ndulo, has noted that Post news editor Chansa Kabwela’s acquittal in her ‘pornography’ case is a triumph for the rule of law and justice.
Commenting on Lusaka chief resident magistrate Charles Kafunda’s dismissal of charges against Kabwela on Monday, Prof Ndulo yesterday said magistrate Kafunda performed his duties fearlessly and impartially and adhered to the law despite the international and national publicity that surrounded the case.
“To sustain a democracy in the modern world, a country needs an independent, impartial, and honest judiciary. Magistrate Kafunda’s actions prove that our dream for a democratic society in Zambia underpinned an independent judiciary need not be deferred,” Prof Ndulo said.
He said he was glad that Kabwela had been acquitted.
“He that would make his own liberty secure, must guard even his enemy from opposition; for if he violates this duty, he establishes a precedent that will reach himself,” Prof Ndulo quoted notable intellectual Paine.
He said justice had prevailed.
“I am deeply gratified by the court’s judgment. Zambia should now put this behind it and advance to face the challenges that stand in the way of a better life for all our people,” said Prof Ndulo.
Kabwela was charged with one count of circulating obscene materials or things tending to corrupt public morals.
Labels: CHANSA KABWELA, CHARLES KAFUNDA, LAZ, MUNA NDULO
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Appeal against ruling, Post challenges President Banda
By Mwala Kalaluka
Mon 16 Nov. 2009, 16:30 CAT
LUSAKA chief resident magistrate Charles Kafunda has acquitted Post news editor Chansa Kabwela of the case in which she was charged with circulating obscene materials or things contrary to the law.
And Post editor-in-chief Fred M’membe has challenged President Rupiah Banda to appeal magistrate Kafunda’s acquittal of Kabwela all the way up to the Supreme Court.
This is in a case where Kabwela was charged with one count of circulating two pictures of a woman in ‘labour’ contrary to section 177 1 (b) of the Penal Code chapter 87 of the Laws of Zambia.
Particulars of the offence were that Kabwela allegedly circulated the pictures between June 1 and 10, 2009 in Lusaka and the prosecution premised their case on the notion that the images tended to corrupt morals.
Delivering ruling in a parked courtroom at around 14:00 hours today (November 16, 2009) magistrate Kafunda said the photographs in question were actually meant to address matters of national interest in the health sector.
Magistrate Kafunda said there were two ingredients that had to be considered in determining whether Kabwela could be placed on her defence or not.
Magistrate Kafunda said for the offence at hand to be made out it was necessary to establish whether Kabwela did circulate the photographs and also that they corrupted the morals of the people they were exposed to.
Magistrate Kafunda said it was not in dispute that Kabwela circulated the photographs.
“Therefore, I do not wish to belabour the issue of circulation, which in my view is a settled matter and has not been contested by the defence,” he said.
He said the photographs were circulated and exposed to PWI, PW3, PW5, PW6 and PW10.
But he said in determining whether there had been any prima facie case made against Kabwela, the second and last ingredient of whether they tended to corrupt the morals of those the photographs were exposed to had to be considered.
Magistrate Kafunda said he had recourse to look at the photographs themselves and what they portrayed and this was further buttressed by some of the prosecution.
He said one of the pictures showed a woman in labour with a ‘dead’ child coming legs first.
“From the photographs, the mother’s vagina is visible,” magistrate Kafunda said.
Magistrate Kafunda said according to the witnesses they were shocked and angered by the pictures because to them the process of giving birth was a sacred one according to the Zambian culture.
Magistrate Kafunda said according to the prosecution witnesses the public nature in which the photographs were circulated were in violation of the local customs and an affront to the women’s standing.
Magistrate Kafunda said according to one of the female witnesses, Nawina Hagwagwa she was shocked by the pictures to the extent that she retorted that ‘ki mitolo’, which means taboo in Silozi.
He noted that according to some of the prosecution witnesses the violation of customs in Zambia was a corruption of morals and so was the demeaning of women.
“Every society, including Zambia, has its own tenets of customs that guide what is wrong and what is right,” magistrate Kafunda said.
But magistrate Kafunda said it does not follow however, that conduct that may depart from such morals may be obscene.
He agreed that the test of obscenity went beyond such considerations in that that alleged to be obscene must tend to corrupt morals.
“I have had recourse to the photographs in question, I do sympathise with the witnesses as to the effect the photographs generated in them but unfortunately that in itself does not amount to corruption of morals,” magistrate Kafunda said. “I saw no evidence whatsoever…”
Magistrate Kafunda said having considered the evidence he had found that the prosecution had failed to prove the obscenity and corruption of morals ingredient.
He said against the above background it would be prejudicial for the court to place Kabwela on her defence.
“This trial must therefore terminate,” magistrate Kafunda said.
He said this was so because no case had been made out against Kabwela by the prosecution and that he was therefore accordingly acquitting Kabwela and dismissing the case against her under Section 206 of the Criminal Procedure Code (CPC).
“The state has right to appeal,” said magistrate Kafunda.
Following the court’s pronouncement the audience, who included family members, media workers, members of the public, politicians and activists filed out of the courtroom in a celebratory mood.
One of Kabwela’s lawyers, Remmy Mainza, told journalists outside the courtroom that it was clear from the onset that the case was not one that should have seen the inside of the courtroom.
“I do not know the motive of the prosecution,” he said. “The law was on our side. I was confident and that is why we put up a good fight based on the fact that the law was on our side.”
Mainza said the prosecution did put up a good fight only that the facts were against them.
In a post-ruling interview, Kabwela said the outcome of the case was not for herself or for the Post but for the poor woman who was in the ‘labour’ pictures and for those other people that suffered during the health workers’ strike.
“I have been vindicated. I have always said that whatever I did was purely out of good will on behalf of the Post,” Kabwela said.
“I think I can’t find the right words to use at the moment. I am happy that the court has vindicated me. Whatever I did on behalf of the newspaper was not in anyway meant to discredit anyone.
The letter to the Vice-President (George Kunda) was very clear. I was merely trying to bring to attention the situation in the hospitals.”
Kabwela said the fact that some people had interpreted her decision as a circulation of pornography was something she would live with because she could not understand such perceptions arising from a sad picture.
Kabwela said the Post newspaper and herself were able to face the case following the immense support they got from the members of the public.
And M’membe challenged President Banda to appeal his ‘pornography’ case all the way to the Supreme Court.
“There are so many things to say about that acquittal of Chansa. This was a case started by President Banda against us. He publicly accused us of pornography and called us all sorts of names. He insulted us of being sick, morbid and peculiar,” M’membe said in an interview.”
“Everyone can remember how charged President Banda was about this issue and instructed the police to arrest and prosecute us. Our innocence has been proved. Mr. Banda’s allegations against us could not even go beyond case to answer.”
“We challenge him to appeal magistrate Kafunda’s ruling. We won’t ask for what he dif with his friend Frederick Chiluba. We do not fear an appeal like them. So we urge them to appeal all the way up to the Supreme Court. As I said there is a lot to say and we will say it at length in the coming days.”
During a press briefing at State House President Banda made some comments on the ‘labour’ pictures and below is a verbatim.
Question: Good morning Your Excellency, my name is Costa Mwansa from MUVI-TV. In your address Sir you did mention that you have the powers to appoint and relieve people of their duties without the consent of either people from the opposition or even students.
My question is on the fact that you were presented with the Dennis Chirwa tribunal report of which the nation did expect you to comment on the findings but there were concerns that you kept rather silent on the tribunal findings and were very quick to reappoint Honourable Dora Siliya as Minister of Education in very short period of time after the case was quashed by the High Court.
President Banda: (after talking about the Dennis Chirwa led tribunal) … I like your question because perhaps this will help me to explain that she (Dora Siliya) was at ZIBAC not for the pleasure of sitting next to me which she didn't. There were many witnesses.
It was like we have got many diplomats who were there with us from all over the world, from all the countries that are accredited to Zambia.
They know that Dora Siliya was sitting at the back and you know I’m so big so I don't turn around I didn't even have the pleasure of looking at her. I saw her in the paper sitting next to me, this manipulation, this is lies, everybody knows that The Post lied.
Dora Siliya did not sit behind me...next to me. Next to me was sitting Honourable minister Mutati, minister of commerce, on my left was sitting Dr Mwanza and the other day was sitting the treasury...the deputy secretary to Cabinet Evans Chibiliti.
At no time did Dora Siliya sit next to me. In any case what's wrong with Dora Siliya sitting next to me? What are you trying to imply?
Just because you are morbid and peculiar you sent photographers to go and take pictures of your mother naked, shame on you!
And I hope that there are laws in this country to stop the young men from taking pornography. I hope those responsible for the law of this country will pursue this matter.
Shame on you photographer who took the pictures of our mothers naked. I couldn't look at it, when I looked at it I threw it away and you wanted to be sending it round...it means that you are sick yourself and don't pretend to be worried about the people in the hospital.
You are the same people who are saying the nurses should continue to go on strike, the doctors. Who is going to look after our sick? This is not fair for us to be subjected to trash and call it journalism.
Wamene uyo mwana...(that same child) who took that picture of the mother I wish him good luck! You cannot go and take pictures of a woman who is my mother, all of us are from women, and send it round without shame.
How do you think? I would be ashamed to show it even to another person.
At this point President Banda's press aid Dickson Jere interjected.
Thank you, Your Excellency...
President Banda: Don't stop me I want this to stop. In this country that's why I agree with the mothers whoever has come to introduce into our country journalism of showing naked pictures of mothers and children is a sick person and he should be watched and arrested if caught up with this. This is something unacceptable.
Jere: I think most of you may not know the background where the President is talking about...it's that one newspaper has been distributing these pictures to different organisations showing our mothers giving birth at UTH.
And some of the pictures have been sent to us and I think your guess is as good as mine, which that newspaper is. I will take more questions.
Labels: CHANSA KABWELA, CHARLES KAFUNDA, COURTS, RUPIAH BANDA, THE POST
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Rathi’s jailing: where does it leave Chiluba?
By Editor
Fri 13 Nov. 2009, 04:00 CAT
The conviction of Anuj Rathi by chief resident magistrate Charles Kafunda is a welcome development. A lot of attention needs to be paid to what magistrate Kafunda said. We need to meditate deeply over the observations made by magistrate Kafunda when sentencing Rathi.
Magistrate Kafunda observed that corruption is a serious problem in our country. He said that in sentencing Rathi, he wanted to set an example that corruption such as the one Rathi was involved in is not going to be tolerated.
This is the kind of attitude that our people expect from their protectors – the judiciary. It cannot be denied that corruption is wrecking havoc in our country. It’s evidently clear that in this country, corruption starts from State House, with the president himself. This is why many of our people have lost confidence in the ability of the political leadership of this country to deliver services. It is clear that those who are in power are there for their own purposes and not for our people.
Without a vigilant and brave judiciary, our country is headed nowhere except disaster. This is why the clarity with which magistrate Kafunda decided the Rathi case is a welcome reminder that all is not lost. We say this because many of our people have begun to believe, and not without cause, that there is a law that applies to the poor who steal and another for the rich and powerful who plunder public resources. The treatment of Rathi is a reminder that all should be equal before the law.
Rathi is a very interesting character because it is not the first time that we are hearing about him. He was very active during the years of Frederick Chiluba in office. Rathi was a briber of the rich and the powerful. In the case before magistrate Kafunda, he has been convicted for paying the school fees of the convicted former Zambia National Service commandant Lt Gen Wilford Funjika.
Lt Gen Funjika gave Rathi contracts to supply uniforms to the Zambia National Service in return for favours. But it was not only Lt Gen Funjika who got favours from Rathi. Chiluba, by his own confession in court, received money from Rathi and his wife. If Lt Gen Funjika’s receipt of money from Rathi was corrupt, what about Chiluba’s receipt of money from Rathi? Why was Chiluba receiving money from Rathi, a man who was corruptly pursuing government contracts when Chiluba was president?
Chiluba was not the only powerful person in our country receiving money from Rathi. There were other government officers and parastatal heads and chiefs who were on Rathi’s payroll. This is why the conviction of Rathi is a significant development in the fight against corruption in our country.
Businessmen like Rathi who are responsible for the loss of millions and billions of kwacha through corrupt dealings with public officials have gotten away scot-free and pretended to be astute and clever businessmen when all they were doing is bribing their way into government contracts and laundering stolen public funds.
But what is frightening and extremely disturbing is that Rathi was able to do all this because of the complicity in his crimes of the head of state and government – Chiluba. It cannot be denied in any way that the head of this country was rotten. Chiluba was rotten and he ran a rotten government where stealing public funds was the order of the day. This is why we wonder what Rupiah Banda means when he says Chiluba was a damn good president! Damn good president in what? In stealing, in corruption, in money laundering, in what? Unless Rupiah says all these things are damn good things for a president to be involved in. If these are damn good things, then Rupiah is telling us that he tolerates and admires Chiluba’s despicable criminal acts.
Another interesting development in magistrate Kafunda’s judgment was the order that Rathi be stopped from benefitting from his criminal acts. This is what magistrate Kafunda did when he ordered Rathi to pay back the 342,000 pounds which he benefitted from the corrupt contract that he got from Lt Gen Funjika.
This is a good message to the foreign companies that think that they can come into our country, corrupt our public officials and make money the easy way without being accountable. It is a warning even to the companies that are today getting fraudulent contracts from Rupiah’s government thinking that their dealings with today’s public officials will always be secret, will not be challenged tomorrow.
We say, as we have always said, that there is a day of reckoning. Yesterday was a day of reckoning for Rathi, tomorrow it might be ne of these companies getting controversial public contracts from Rupiah and his government. At least the judiciary is telling our people that it is possible to claw back and give the Zambian people the necessary and deserved redress.
The Rathi case also demonstrates the patience that those who claim to fight corruption need to have. It has taken many years for Rathi to be finally convicted. In fact, he had even run away and gone back to India. It is not clear why he came back soon after Rupiah was elected President. We don’t know whether Rathi expected to be given the same treatment that was extended to his friend Chiluba by Rupiah. But what is clear is that he has not been that lucky. There is no doubt Rathi came back because he believed he had the protection of some powerful people and could buy his way. But this has not worked.
Everything has got its time. Rathi’s hour came and went. We can only hope those who are today engaged in similar activities are learning something from this, are realising that the protection that they are receiving from this government and its officials will not last forever. Even for Chiluba, today he is enjoying the protection of Rupiah – he has been questionably acquitted and his protectors have withdrawn the appeal against his acquittal, making him untouchable and appear to be above the law.
But they won’t be in power forever. Their time to go will also come and Chiluba will be left like a small fish in a jar – with nowhere to go and nowhere to hide. That day is very near for Chiluba. Today they can deceive themselves and others who want to be deceived that they will go scot-free. Yes, scot-free – but just for now.
The conviction of Rathi clearly demonstrates why Chiluba should have been convicted and should shame those who are refusing to appeal. Chiluba himself received money from Rathi. And this same Rathi has been convicted for corruption with public officers. Can it be said that the money that Chiluba received from Rathi was lawfully received?
Jones Chinyama, the magistrate who acquitted Chiluba, convicted Faustin Kabwe and Aaron Chungu – Chiluba’s accomplices – for being found with money suspected to have been unlalwfully obtained. Why didn’t he find the same for Chiluba who was clearly receiving money in unlawful circumstances for a person in the position of president? This is why we say Chiluba’s acquittal was a shameful political fix which should embarrass anyone who has any morality. All of Chiluba’s accomplices, including his own wife Regina, are being convicted except Chiluba himself. Why? How is this possible? There is something seriously amiss!
Anyone who doubts that Chiluba is a thief should go and read what Chiluba himself said about Rathi. Today, Chiluba even has the courage to say he had money from friends in the Zamtrop account - what friends? Rathi? This is the money Chiluba says the Zambian people owe him – the bribes and illegal commissions he was collecting from unscrupulous businessmen like Rathi!
We hope that Chiluba is going to carry through his senseless threat of trying to claim US $8 million from our people which he claims to have been keeping in the Zamtrop account. At least this will demonstrate once again what kind of thief he is.
As for Rathi, apart from spending more days in jail, he also has to pay our people before going back to India. The order for him to pay back, as important as it may appear, is not the most important thing. What is more important is that a precedent has been set that high-flying businessmen like Rathi and other corrupt elements that deal with them can be brought to book.
This precedent will help deepen the rule of law in our country. We say this because we have heard certain elements suggest that law enforcement such as the work done by the now disbanded Task Force should be a profit making business. The Task Force was supposed to make a profit. We don’t know where this nonsense comes from because law enforcement is not a profit making business. If this was so, our police service, Anti Corruption Commission, Drug Enforcement Commission and all other law enforcement agencies would have been disbanded a long time ago.
This said, we cannot ignore the fact that although this whole undertaking was not for profit, there have been some significant recoveries and savings that cannot be ignored. It is now up to Rupiah and his government to collect US $45 million from Chiluba and other huge amounts of money from his accomplices that have been ordered by the London High Court. But the question is: how is Rupiah going to do that when he has publicly declared that Chiluba is an innocent man, a damn good president? We also know that the Task Force did a lot of work that saved the government hundreds of millions of dollars.
And for this, we cannot ignore to give credit to Levy Mwanawasa and other patriotic Zambians – Mark Chona, Maxwell Nkole, Mutembo Nchito and many investigators – who worked tirelessly to make this a reality. We can only hope there are many Zambians of that mould to push this fight a bit further.
Labels: ANUJ KUMAR RATHI, CHARLES KAFUNDA, CHILUBA, CORRUPTION
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Magistrate Kafunda jails Rathi for corruption
By Maluba Jere
Fri 13 Nov. 2009, 04:01 CAT
LUSAKA chief resident magistrate Charles Kafunda yesterday sentenced Semyon Holdings proprietor Anuj Krishman Kumar Rathi to four years imprisonment with hard labour for corruption.
And magistrate Kafunda has ordered the forfeiture of proceeds amounting to 342,000 pounds in a transaction between Semyon Holdings and Zambia National Service (ZNS).
Magistrate Kafunda imprisoned Rathi with effect from the day he was arrested. This means Rathi will be in prison for three years and a month as he has been in custody since December last year.
Rathi stood charged with one count of corrupt practices with a public officer contrary to the Laws of Zambia.
Particulars of the offence were that on dates unknown but between December 3 and 6, 2001 in Lusaka, Rathi did give 15 000 pounds gratification to convicted former ZNS commandant Lieutenant General Willford Funjika, a public officer at the time as a reward for awarding a contract to Semyon Holdings.
Passing judgment, magistrate Kafunda said it was clear from the evidence before court that Semyon Holdings caused money amounting to 15 000 pounds to be paid to two of Lt Gen Funjika's children who were paid 7,500 pounds each.
Rathi was alleged to have corruptly supplied jerseys, raincoats and berets in a contract between ZNS and Semyon Holdings.
Magistrate Kafunda said it was also clear that the process of procuring uniforms for ZNS was initiated by Lt Gen Funjika himself and that tender procedure was not followed and that the whole tender process was manipulated in favour of Semyon Holdings.
“I find the allegation that the accused person gave as gratification for the awarding of a contract to have been proved beyond all reasonable doubt,” magistrate Kafunda said. “…gratification was given for the facilitation of a ripped and manipulated tender process. All the ingredients of Section 29(2) of the Anti Corruption Commission Act have been proved beyond all reasonable doubt. I find the accused guilty as charged and I convict him accordingly.”
In mitigation, Rathi's lawyer Robert Simeza said his client was a first offender who had been in custody for close to one year and that he had learnt a lesson from his experience.
Magistrate Kafunda said having taken the mitigation into account, he also noted that Rathi was the first offender but explained that the offence he stood charged with was punishable by up to 12 years.
He said it was common knowledge that the offence was quite prevalent in the country and possed challenges to society.
Magistrate Kafunda then sentenced Rathi to four years imprisonment with hard labour.
And dissolved Task Force on Corruption prosecutor Mutembo Nchito applied that the court should order the forfeiture of the proceeds to the state in the transaction between Semyon Holdings and the government.
But Simeza objected saying the court could only order the forfeiture of 15 000 pounds and that such an order could not stretch beyond that saying the state's application had no merit.
In response, Nchito said Section 41(c) of the AC Act empowered the court to order the forfeiture of proceeds. He submitted that it was clear that the transaction in which Semyon Holdings and ZNS entered into under the instrumentality of Rathi and Lt Gen Funjika was fraudulent.
Ruling on the matter, magistrate Kafunda said just as the prosecution had observed, the tender between the government and ZNS was manipulated and corrupt under the AC Act.
“The fact is that 342,000 pounds was a proceed of a crime…Fixing a public leader for a reward amounts to corruption and whatever proceeds are liable for forfeiture to the state within the next 45 days,” magistrate Kafunda said.
Labels: ANUJ KUMAR RATHI, CHARLES KAFUNDA, CORRUPTION, SEYMON HOLDINGS
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Judge Wood stops Kafunda’s contempt
Written by Mwala Kalaluka
Saturday, September 26, 2009 6:15:33 PM
LUSAKA High Court judge Albert Wood yesterday quashed the contempt proceedings against Post editor-in-chief Fred M'membe, his deputy Sam Mujuda and US-based Zambian Professor of law Muna Ndulo. This is in a matter where M'membe, Mujuda and Prof Ndulo applied for judicial review on the contempt proceedings brought against them in the case where Post news editor Chansa Kabwela is charged with one count of circulating obscene matters contrary to the laws of Zambia.
In his ruling delivered in chambers yesterday, judge Wood said the alleged contempt before him was not committed in the face of the court but outside.
"According to the affidavit in support sworn by Sam Mujuda as Deputy Editor and Managing Director of the Post Newspapers Limited on 4th September, 2009, the Post Newspaper carried an article entitled "The Chansa Kabwela case - a Comedy of Errors," judge Wood said.
"On 28th August, 2009, the Public Prosecutor Mr Frank Mumbuna complained to the court presided over by the Learned Chief Resident Magistrate alleging that the article was contemptuous as it was calculated to undermine the authority of the court..."
Judge Wood noted that in the absence of any reaction on the part of The Post, the court made its ruling on August 31, 2009 and found the same to be contemptuous on the face of it.
"The Learned Chief Resident Magistrate then proceeded to cite the Editor in Chief of the Post Newspapers and the 3rd applicant for contempt of court," judge Wood said.
Judge Wood said he had perused the authorities cited in the skeleton arguments and agreed with the learned assistant senior state advocate that an applicant would not normally be permitted to proceed by way of judicial review if there was another avenue of appeal against the decision concerned.
"I however do not agree with her that there are no exception circumstances in this matter. There are exceptional circumstances because the liberty of an individual is a fundamental right and cannot and should not be taken away without due process," he said.
Judge Wood said he accepted counsel for the first and second applicant's argument as was held in The Attorney General versus Shamwana and Others.
"What I however do not accept even with the argument that judicial review proceedings are not civil proceedings and cannot be said to be interlocutory, that criminal proceedings can be stayed by way of judicial review. To do so would be contrary to what the Supreme Court held in The People v Principal Resident Magistrate and CS. Investments and Others v The Attorney General," he said.
"However, having perused the case record pursuant to section 337 of the Criminal Procedure Code Cap 88 of the Laws of Zambia, I am of the considered view that this is an appropriate matter for me to invoke the provisions of section 338 of the Criminal Procedure Code Cap 88 of the Laws of Zambia as read with section 54 of the Subordinate Court Act. I will also invoke the provisions of section 339 of the Criminal Procedure Code and dispense with heating either parties or their advocates with regard to the review."
Judge Wood said the information from the case was sufficient for him to reach a decision.
"Section 54 of the Subordinate Courts Act makes magistrates subject to directions of the High Court. It falls under miscellaneous provisions," he said.
Judge Wood observed that chief resident magistrate Charles Kafunda did not state what sort of summons should be used in citing the alleged contemnors.
"The record does not however show how Mr Kasonde effected the service of the Post Editor in Chief," he said. "I agree with Mr Mainza when he submitted at page 25 of the record that it was clear that the three were not appearing as witnesses as suggested by the summons. They were in fact summoned as accused persons."
Judge Wood said magistrate Kafunda, apart from being bound by the decisions that were cited, had no discretion under section 90 to proceed in the manner in which he did.
"The authorities cited do not encourage a formal charge, they make it mandatory. Further, the alleged contempt should have been tried by another court as the record shows that it was not committed in facie curiae. Contempt of court can either be in the face of the court or not in the face of the court," judge Wood said.
"If it is in the face of the court a summary procedure is adopted. If not, the State should formally institute proceedings and the court should proceed as provided for in the Criminal Procedure Code. There is no provision for proceeding in the manner stated by the subordinate court."
Judge Wood said from the authorities cited in the judgment, it was clear that procedure relating to contempt proceedings must be followed with scrupulous care.
"The facts from the record show that the alleged contempt, which is an article in a newspaper, was not committed in the face of the court. The record also shows that section 100 of the Criminal Procedure Code was not complied with regard to the second applicant," he said.
"It does not give the slightest indication of names or at the very least the name of the newspaper. It falls short of section 92 (2) of the Criminal Procedure Code. It does not state the offence which the persons against whom it is issued are charged."
Judge Wood said he was not concerned whether justice was a cloistered virtue or whether an argument or expostulation offered against any judicial act as contrary to law or public good amounts to contempt of court.
"That should be left to the subordinate court to try after all procedural requirements have been complied with," judge Wood said. "In light of what I have said above, the contempt proceedings before the Learned Chief Resident Magistrate cannot simply stand, I therefore quash all proceedings relating to the contempt proceedings in the court below. The parties will bear their respective costs."
Recently, judge Wood directed and ordered that proceedings relating to the alleged contempt of court case involving M'membe, Mujuda and Prof Ndulo be stayed until after the hearing of the motion for judicial review.
According to an order granting leave to apply for judicial review filed in the Lusaka High Court, judge Wood directed that further proceedings relating to the case be stayed. Judge Wood's decision came in the wake of magistrate Kafunda's move to issue a bench warrant against M'membe.
This follows a complaint by the prosecutors in the matter in which Post news editor Chansa Kabwela is facing one count of circulating obscene matters or things contrary to the law that an article authored by Professor Ndulo [The Chansa Kabwela case: a comedy of errors] and published in The Post edition of August 27, 2009 was contemptuous.
The Post editor-in-chief and the entire editorial staff were summoned to appear before court. The Post team, led by Mujuda appeared before court but magistrate Kafunda issued a bench warrant against M'membe, saying he was aware of the summons but did not appear before court.
However, M'membe is on study leave. The defence lawyers in the case argued among other issues, that the matter was improperly taken before court.
Labels: ALBERT WOOD, CHARLES KAFUNDA, COURTS, FRED M'MEMBE, SAM MUJUDA
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Magistrate Kafunda counsels defence, prosecution teams in Kabwela’s case
Written by George Chellah and Mwala Kalaluka
Wednesday, September 09, 2009 6:19:53 PM
LUSAKA chief resident magistrate Charles Kafunda yesterday advised the defence and the prosecution team in the Chansa Kabwela case to approach the proceedings in an objective manner and concentrate on the main issues before the court. This was after defence lawyer George Chisanga complained that the state seemed to be raising unnecessary objections.
This is in a matter where Post news editor Kabwela is charged with one count of circulating obscene matters or things tending to corrupt public morals contrary to the Laws of Zambia.
Chisanga said the defence needed to be given leeway to ask questions to witnesses during cross-examination.
"We ask that may we also be protected like the state," Chisanga said.
Chisanga's complaint prompted magistrate Kafunda to ask whether he was suggesting that the court was not protecting the defence.
But Chisanga insisted that the court might be deviated by the numerous objections from the state.
Lusaka division prosecutions officer Frank Mumbuna argued that the state would definitely come in to protect its witnesses.
"I do not find myself contravening any procedures on objections," Mumbuna said.
But magistrate Kafunda ruled that he found the statement by the defence very unfortunate.
"We must be very objective. All objections raised by the state have been addressed. To suggest that the objections are irrelevant it's unfortunate. Let's approach these proceedings in an objective manner," magistrate Kafunda said. "Let's concentrate on the main issues before the court. May I appeal again...to both parties for you to re-focus."
Magistrate Kafunda advised both the defence and prosecution team to make written submissions at the close of the trial as opposed to viva voce [oral] submission, which he had earlier directed at the opening of the trial.
And testifying in the same case was Sharon Cheelo Zulu, the arresting officer, who told the court that she was assigned by her supervisors in the police service to investigate the matter.
"I executed my investigations and went as far as the office of the Ministry of Health who was one of the recipients. At the Ministry of Health, I discovered that on 11th June 2009 the secretary to the Minister of Health a Mrs Claire Kalunga received the letter with pictures that where circulated to the minister. I interviewed the secretary to the minister in relation to the pictures that she received on behalf of the minister and she confirmed having received those pictures from The Post," Zulu said.
"I asked her how the letter including the pictures where...she told me it was in an envelope addressed to the minister of health. As secretary, she opened the letter on behalf of the minister to file on behalf of the minister. She told me further that when she opened the letter, she was quite shocked with what she saw. She screamed, according to her, and at that time the minister was not in the office. She was in a confused state, she didn't know what to do. In that confused state of her mind she just stamped the letter and filed. She realised that the minister was not around and she thought of the next senior-most person. She was quite shocked, she just stamped on the letter, took the letter with pictures to the office of the permanent secretary."
Zulu told the court that the author of the letter addressed to Vice-President George Kunda was Chansa Kabwela.
"I was given three photographs. I checked and I saw the three pictures. I had never seen such pictures, I continued checking with a shock of course," she said.
Zulu said she was quite affected when she saw the pictures.
"I really thought as a woman my pride has been taken away. So I really felt my pride was moved away from me as a woman," he said.
Zulu, who described the pictures to the court, said she felt assaulted and touched by the pictures.
She further explained that she went to the office of Secretary to the Cabinet Dr Joshua Kanganja, another recipient of the letter in question.
"I interviewed Mrs [Nawina] Hagwagwa, she confirmed to have received the letter with the pictures in it. She mentioned that she was quite disturbed. After collecting the pictures and letter, I went to the Office of the Vice-President," she said.
Zulu said she was received at the Vice-President's office by his senior special assistant Kenneth Ngosa.
She explained that Ngosa could not submit the pictures to Vice-President Kunda immediately because he could not find a way of doing that as the images were something forbidden to be shown to the public.
"In the Zambian setup going by our culture, we don't expose a woman giving birth like the way it is now. It's something that deserves privacy for a woman," she said.
She said Ngosa was equally shocked with what he saw.
Zulu said apart from the letter to Vice-President Kunda, there was also an apologetic letter from The Post.
Zulu told the court that she came across the name Marian Munyinda [NGOCC board chairperson] when she was at the office of the Secretary to the Cabinet.
Earlier, magistrate Kafunda told Kabwela's lawyers that it was his preserve to determine the relevance of documentation before court in relation to the charge.
During continued trial in the morning, Chisanga asked handwriting expert Philby Kaoma, 48, what the relevance of the documentation that he had brought to the court was in relation to the charge Kabwela was faced with.
But Mumbuna objected Chisanga's line of cross- examination arguing that Kaoma as a witness could not usurp the court's role in determining the relevance of the documents that he had produced.
Chisanga responded that the question was fundamental to the charge.
But magistrate Kafunda ruled that the issue of determining the relevance of the documentation was for the court.
Chisanga also asked Kaoma if it was put to him that Kabwela was facing a charge of forgery and he responded that there was no such a thing.
Magistrate Kafunda also asked the defence lawyers not to mistake the term dispute that Kaoma had mentioned during his evidence, because it was used in a technical sense.
He explained that the term did not entail that the accused person had disputed the signatures and writings on the documents.
This was after another defence lawyer Remmy Mainza, asked Kaoma to state what he would do should he find that Kabwela did not dispute that the signatures and writings on the two letters addressed to Vice-President Kunda and NGOCC chairperson and a khaki envelope addressed to Dr Kanganja were hers.
Kaoma, as assistant superintendent at the forensic questioned document examination section of the Zambia Police, told the court that he received a letter from the arresting officer in the matter in July this year, requesting him to undertake investigations on the documents.
Asked to reveal who disputed the documents, Kaoma said it was the arresting officer but that as a handwriting expert, he did not examine the dispute but the issues raised.
He said his duty was to interpret the facts.
Kaoma said he did not include the letter from the arresting officer in his final report because that was not the procedure in their line of duty.
Kaoma, testified that he made a conclusive finding that Kabwela authored the signatures and writings on some disputed documents he was requested to examine.
Kaoma said during his evidence in chief that after examining the signatures and writings on the two letters and the envelope, he compared them to the signatures on Kabwela's account records from Barclays Bank Zambia.
He said his final conclusion was that the signatures and the writings were genuine and that they were Kabwela's.
He further said even the signatures on the documents from the bank were genuine.
"It is written by the same lady, your honour," Kaoma said.
Kaoma said although the equipment that he used in his forensic investigation was manual, it was nevertheless reliable.
The matter was adjourned to September 14, 2009 for continued trial.
Labels: CHANSA KABWELA, CHARLES KAFUNDA, COURTS, THE POST
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Magistrate Kafunda summons Prof Ndulo, entire Post editorial staff over contempt complaint
Written by Mwala Kalaluka
Tuesday, September 01, 2009 4:29:29 PM
THE entire Post newspaper editorial staff has been summoned to appear before Lusaka chief resident magistrate Charles Kafunda in a matter of contempt following the publication of US-based Zambian Professor of law Muna Ndulo's article on the Chansa Kabwela case.3
And magistrate Kafunda expressed disappointment that despite expressing his concern over the behaviour of political party cadres around the court premises, the situation had been left to deteriorate.
This is in a matter where, Kabwela had pleaded not guilty to one count of circulating obscene matters or things, contrary to section 177 1(b) of the Penal Code.
Kabwela, who is also Post news editor, stands charged with the offence of circulating obscene matters or things with a view of corrupting public morals.
Ruling on the state's application that The Post editor be cited for contempt following the newspaper's publication of an article by Cornell University's Prof Ndulo, entitled: ‘The Chansa Kabwela Case: A Comedy of Errors’, magistrate Kafunda yesterday said the state's application had merit. He said having had an opportunity to read Prof Ndulo’s article, he was satisfied that on its face, it contained contemptuous matter.
He said that being the case, he would cite the author of the said article, Prof Ndulo and the Post editor-in-chief.
“I direct summons to be issued to the said,” he said.
Magistrate Kafunda said he would summon the entire editorial staff of the newspaper in order to determine whether any of them might be linked to the contemptuous article.
“Summons will be returnable on Wednesday 2nd September 2009,” he said.
After the ruling, Lusaka division prosecutions officer (DPO), Frank Mumbuna said the state was fortified.
And magistrate Kafunda said he was disappointed with the events of last Friday where some MMD cadres engaged in violent behaviour on or about the court premises.
“I am disappointed that the situation was let to deteriorate,” he said.
Magistrate Kafunda said as a result of the violence, he had directed that no political party cadres would be allowed around and within the court premises.
“I direct police to effect the order,” he said. “The DPO and Lusaka Province police commanding officer are to see to it that the order is effected.”
Before Kabwela's case came up for continued hearing last Friday, Mumbuna applied to cite The Post editor for contempt.
“There is an application …bordering on repeated comments by The Post even when it's clear by the record before this honourable court that a similar concern was actually raised before this court,” Mumbuna said.
“We note, as state, with serious disappointment for The Post, in this case the editor, that despite this warning, The Post has continued violating, not only the law of the land but the warning given by this court.”
Mumbuna referred the court to The Post edition of August 27, 2009 and particularly to Prof Ndulo's article.
Labels: CHANSA KABWELA, CHARLES KAFUNDA, COURTS, MUNA NDULO, THE POST
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Lt Gen Singogo gets 6 yrs for corruption
Written by Laura Hamusute and Mwala Kalaluka
Tuesday, January 13, 2009 9:32:17 AM
LUSAKA chief resident magistrate Charles Kafunda yesterday jailed former Zambia Air Force (ZAF) commander Lieutenant General Christopher Singogo for six years after finding him guilty of abuse of authority of office and theft by public servant. But Lt Gen Singogo through his lawyers has filed a notice of appeal seeking bail pending appeal.
And magistrate Kafunda observed that Lt Gen Singogo's case brought to the fore a scenario of weak fiscal controls in ZAF at the material time.
In this case, Lt Gen Singogo, 57, was charged with abuse of authority of office involving two generators and accessories for ZAF valued at K117, 715,940.00 that he allegedly directed to be installed at his guesthouses namely Wane Guest Lodge in Livingstone and Wasingo Guest Inn at PHI in Lusaka.
On the second count, Lt Gen Singogo was jointly charged with his former aide-de-camp (ADC) Captain Joseph Phiri, 31, of ZAF Lusaka Base, a ZAF pilot, for theft by public servant involving a standby power generator valued at K32,153,800.00.
However, magistrate Kafunda acquitted Capt Phiri after establishing that the prosecution had failed to prove beyond all reasonable doubt that he acted as he did while sharing the same criminal intent with Lt Gen Singogo who directed him to perform the said acts in the course of his duty.
In passing judgment, magistrate established that Lt Gen Singogo was a public officer at the time he committed the offence and that he orchestrated the procurement of the generator sets.
Magistrate Kafunda dismissed the evidence of one of the defence witnesses relating to quotations.
He noted that there was a dispute concerning the amount at which the generator sets were procured. Magistrate Kafunda said there was evidence that the generator sets were installed at the lodges in question and the defence even conceded on that point.
Magistrate Kafunda expressed sadness at the move by the defence to portray one of the prosecution witnesses as a liar, describing the approach as unethical in the noble profession of legal practice as it bordered on trickery and undesirable gimmicks.
Magistrate Kafunda further said Lt Gen Singogo used the Chamba Valley officers' mess for the generators in order to deceive the officers that the generator sets were for official ZAF use when in fact they were for his private use. He said he was satisfied that Lt Gen Singogo acted unilaterally as no ZAF unit made a request for the generator sets and tender procedures were not followed.
Magistrate Kafunda established that the generator set installed at Wasingo Inn was moved from the lodge after the Anti-Corruption Commission (ACC) started carrying out investigations.
On the point by the defence that ZAF, being a security institution its commander had in certain cases discretion to make procurement decisions without regard to Zambia National Tender Board (ZNTB) regulations especially where operations were involved, magistrate Kafunda said although ZAF was a security institution, it still remained an institution of government like any other.
Magistrate Kafunda ruled that as far as procurements of goods and services were concerned, all government and parastatal bodies were subject to the regulation and control of ZNTB regulations. He said whatever discretion was open to the ZAF commander, whether with respect to a secret fund or not, had to be exercised within the confines of the law and must never be exercised to foster personal gain at the expense of critical military operations and public resources.
It is against this background that magistrate Kafunda found Lt Gen Singogo guilty on the first count. He also found Lt Gen Singogo guilty on count two after establishing that he had intentions to permanently deprive the government of the generator in question.
In mitigation, Lt Gen Singogo's lawyer Ghanje Mhango said moving from the status of ZAF commander to a convict was enough punishment for Lt Gen Singogo and urged the court to have mercy on his ageing parents.
He also highlighted Lt Gen Singogo's accomplishments in ZAF. Mhango said Lt Gen Singogo was a family man and a first offender.
Another lawyer, Kelvin Bwalya urged the court to find a middle ground in sentencing his client.
Magistrate Kafunda initially jailed Lt Gen Singogo for eight years but slashed two years after listening to the mitigation.
After judgment was handed down, Lt Gen Singogo through his lawyer applied for leave to file a notice of appeal on grounds that the sentence was too excessive. However, magistrate Kafunda castigated the lawyer for being impatient saying the application was premature.
He said he would deal with the application after the lawyers furnished him with all the grounds of appeal.
While passing the judgment, magistrate Kafunda hoped that the relevant authorities had addressed the weak fiscal controls in ZAF in order to safeguard meager taxpayers resources.
He said the approach in ZAF of the commander having discretion to procure certain goods without following tender procedure was a culture that undermined fiscal discipline among those charged with control of public resources as it was a recipe for impunity among the controlling officers.
Magistrate Kafunda said it was a pity that an officer at such a high level in government and in command of a disciplined force could claim to function outside ZNTB regulations provided for by the law.
Labels: CHARLES KAFUNDA, CHRISTOPHER SINGOGO
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Magistrate Kafunda refuses to recuse himself in President Mwanawasa's
By Noel Sichalwe
Thursday April 17, 2008 [04:00]
LUSAKA principal resident magistrate Charles Kafunda yesterday refused to recuse himself in the case where Patriotic Front president Michael Sata and two others are charged with defamation of President Levy Mwanawasa. This is a matter in which Sata, his vice-president Guy Scott and a police officer Clement Andeleki have been charged with defamation of the President following the forged letter dated January 14, 2006, which Andeleki allegedly gave to Sata who in return passed it to The Post for publication.
Sata sent the letter to The Post, purporting that President Mwanawasa ordered the arrest of PF cadres who waved at him on his way to the official opening of Parliament in January 2006.
When the matter came up for plea yesterday, defence lawyers comprising Robert Simeza, Bonaventure Mutale, Mathew Pikiti, Edgar Lungu and Wynter Kabimba applied to hear the preliminary application in chambers.
While in chambers, the defence raised two preliminary issues with the first one being that the court should suspend hearing of the matter while awaiting the determination of the appeal in the Supreme Court arising from the same case.
The appeal related to the refusal by then trial magistrate Edward Musona to refer the matter to the High Court to determine constitutional issues.
The second issue was that magistrate Kafunda should recuse himself from handling the matter because he had earlier convicted Andeleki for contempt of court and further testified against him at a tribunal convened by the Zambia Institute of Advanced Legal Education (ZIALE).
Pikiti argued that magistrate Kafunda should recuse himself in respect of proceedings against Andeleki because he had earlier convicted Andeleki for contempt of court in another matter.
He contended that magistrate Kafunda facilitated the proceedings against Andeleki by testifying against him at a tribunal thereby destroying his life.
Pikiti urged magistrate Kafunda to recuse himself so that justice could prevail in the matter. The state, however did not reply to the application.
The application was also supported by Mutale and Professor Mvunga.
In his ruling, magistrate Kafunda said he had thought about the issues and that Pikiti was fully aware of the matter with regard to Andeleki's contempt case.
Magistrate Kafunda said the record was clear that Andeleki was a learner student at ZIALE when he placed himself on record as defence counsel in a criminal matter.
He said it was clear that Andeleki had committed contempt of court by pretending to be a lawyer when he was not. He said Andeleki even failed to justify his conduct and instead apologized for what he had done.
"Accused number three (Andeleki) was cautioned and was ordered to leave the court but he had made for about three times where he was defending a criminal matter," magistrate Kafunda said.
He took great exception at what he regarded as the misrepresentation of facts by Pikiti. He said the tribunal at ZIALE was merely meant to learn what had happened with regard to Andeleki's conduct where he gave an objective position.
He said it was regrettable that Pikiti could paddle such falsehood against the court and that as an officer of the court, he was supposed to maintain and protect the integrity of the court.
Magistrate Kafunda said Pikiti had just misled Prof Mvunga when he supported the argument.
"Should he (Pikiti) depart from that duty and embark on an acrimonious and disrespectful route, this court will be compelled to exercise its full jurisdiction to discipline every officer of the court especially when it is clear that they intentionally want to bring this court into ridicule and contempt," said magistrate Kafunda.
"The court will therefore, have the said application dismissed."
Labels: CHARLES KAFUNDA, COURTS, DEFAMATION, MWANAWASA, SATA
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