DEC working under political pressure – Zamtel Managing Director
TIME PUBLISHED - Saturday, January 21, 2012, 5:12 pm
Zamtel managing director Hans Paulsen has said that siezure of ZAMTEL accounts by the Drug Enforcement Commission (DEC) was unreasonable and calculated to frustrate Zamtel management and paralyse the company’s operations. DEC seized three accounts at Zanaco and 10 others at Barclays Bank on January 18, 2012. This is according to the company’s application for leave to apply for judicial review, filed in the Lusaka High Court on Thursday.
“The DEC has no reasonable grounds to believe that all monies in the seized accounts are proceeds of criminal activities. The action by DEC has been precipitated by political pressure that the sale of Zamtel was allegedly fraudulent, an allegation that has not been proven in any court of law.”
“Monies have been wrongfully seized, based on a unilateral and unsubstantiated report. The DEC’s decision is wrong and not justifiable in the circumstances. Zamtel has never been heard by DEC after the seizure of the accounts,” Mr Paulsen said in his affidavit verifying facts.
Mr Paulsen said that Zamtel believes that the seizure is an indirect way of expropriating its property as it shall become non-operational due to lack of access to its funds.
“This is not in public interest as its internet services, fixed phone lines, mobile phones and other services will eventually shut down, due to lack of access to funds to pay for services and operational expenses. Employees shall be greatly affected in that Zamtel will be unable to pay them,” he added.
Mr Paulsen says the DEC’s action implies that Zamtel is an illegal business notwithstanding that Government, to which DEC belongs, is a shareholder in Zamtel.
“This is not in public interest as its internet services, fixed phone lines, mobile phones and other services will eventually shut down, due to lack of access to funds to pay for services and operational expenses. Employees shall be greatly affected in that Zamtel will be unable to pay them,” he added.
“This will have an unprecedented impact on the economy and security of the country. It is desirable and in the interest of justice that this court grants leave to Zamtel to file a notice of motion for judicial review and that the order of leave to commence judicial review acts as a stay of the DEC’s decision to seize monies in the bank accounts belonging to Zamtel,” he said.
Lusaka High Court judge Evans Hamaundu is scheduled to hear the matter on Monday, January 23, 2012.
Meanwhile, anxiety and uncertainty has gripped many Zamtel top brass who do not know when or where the axe will fall from as the government tightens the noose on the company believed to have been sold after “gross” under valuation according to a study by the Sebastian Zulu-led probe team.
The company was sold for a questionable US$257 million of which only some US$15 million has been received by the government, according to Zulu who was commissioned to study the transaction by President Michael Sata.
Former Cabinet Minister in the MMD government Dora Siliya and former President Rupiah Banda’s son Henry are reported to have put together the transaction which the report says is deeply flawed and marred with gross corruption and was done without the national interest of Zambia.
Stephen Laufer, the Lapgreen representative for Southern Africa via phone yesterday said the company would issue a statement.
[Zambia Daily Mail]
Labels: CORRUPTION, EVANS HAMAUNDA, LAP GREEN, ZAMTEL
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Hamaundu’s decision is wrong
By The Post
Sun 22 Aug. 2010, 04:00 CAT
It requires little legal knowledge – if a little is all one has – to realise that there is something very wrong with judge Evans Hamaundu’s refusal to register the London High Court judgment that was obtained by the Zambian government against Frederick Chiluba and his tandem of shameless thieves.
As we have said before, we do not consider ourselves legal experts. But we know a little law and are also being helped by the many experts who have now commented on this matter. We are worried that the issues that these big legal experts are raising are so basic that it is difficult to see how an experienced judge could fall into such error – or it isn’t an error but something else!
When one goes to law school, there are basic things that you are taught. One of the important issues is how law is formulated through various methods – the legal process. One of those basic things that you are taught is that our legal process is founded on the basis of respect for judicial precedent. Another fundamental point which is emphasised to illustrate the importance of judicial precedent is the fact that by setting precedents, judges make law. In other words, the process of making judicial precedents is part of the law making process. This concept is so important that no lawyer, judge or any other legal practitioner for that matter would be of any use to society without this function. If there were no precedents the law would be uncertain, inconsistent, arbitrary and its practice impossible.
These are things that lawyers usually don’t talk about in court because they are considered too basic; they are a given. As lawyers like to say, they are trite. This is why judge Hamaundu’s conduct in the Chiluba matter is very worrying. He allowed himself to destroy the very foundation of his jurisdiction or put another way, he destroyed the principle that allows him to make decisions. We are not the ones accusing judge Hamaundu of this grave mischief.
The Law Association of Zambia, among others, is calling for attention to this mischief. In their opinion, which has been made public, the law association has told the nation that judge Hamaundu went against the principle of stare decisis. This is a very big sounding phrase but what it means is very simple. All one needs to do is go on the internet and will find that it is well explained. We are told that stare decisis is a legal principle by which judges are obliged to respect the precedents established by prior decisions.
We are also told that the words originate from the Latin phrase stare decisis et non quieta movere, meaning that “stand by decisions and do not disturb the undisturbed”. To lawyers this means that courts should abide by precedents and not disturb settled matters. This helps to ensure that the law and its practice is predictable and capable of being learnt and applied to various situations. Those who have learnt this principle would also have been taught that the doctrine is not stare dictis, meaning the principle is not to stand by or keep what was said nor is the doctrine about standing by the reason for the decision. The doctrine simply says stand by the decision. This is the principle of stare decisis as it is taught.
Applying that to judge Hamaundu, we would have to say that he was bound by his decision in the case of Reefcor Limited versus Les Generals Des Carriers Et Des Mines Exploitation Gecamines (2002/HK/526). The principle of stare decisis stops him from ignoring previous decisions, let alone his own decision. But this is what judge Hamaundu has done.
Transparency International in their statement made this same point quite eloquently. They said: “What we find more intriguing is that he fails to refer to his own judgment in Reefcor Limited v. Les Generals Des Carriers Et Des Mines Exploitation Gecamines (High Court for Zambia, Kitwe District, (11 June 2007) (2002/HK/526) where he allowed for direct registration, a judgment rendered by the High Court of South Africa despite the respondent arguing that South Africa is not one of Her Britannic Majesty’s dominions, neither is it a British protectorate nor a mandated territory and that it does not have a reciprocal agreement with Zambia and did not fall under the Foreign Judgment (Reciprocal Enforcement) Act Chapter 76 of the Laws of Zambia.
Judge Hamaundu after observing that no proof was rendered in court to show that South Africa had not been added to a list of countries covered by the Foreign Judgment (Reciprocal Enforcement) Act, held: “assuming that South Africa is not one of the scheduled countries, I wish to cite the case of Mileta Pakou and Others v. Rudnap Zambia Limited (1998) ZR 233”.
“He applied the following passage from the Supreme Court Judgment in Mileta Pakou: –“The law which applies in Zambia in default of any statute is the common law of England. At Common Law, the judgment of any competent foreign court for a sum certain is enforceable as a simple debt on the basis of an implied obligation, which arises on the part of the judgment debtor. However, the foreign court must have had the necessary jurisdiction.” The Judge then dismissed the application to set aside the Registration. Essentially, the Judge sanctioned the direct registration under CAP 76, of the Judgment on the basis of Common Law. As TIZ, we are baffled that judge Hamaundu elected not to be bound by his own precedent.”
The question that arises is whether judge Hamaundu’s decision or action was a product of oversight or was it deliberate, something that he actually thought about? Was it unconscious or conscious? We say this because this act by the judge, in such a serious case is too important to be glossed over; it has created a series of problems, in a word, it has created veritable chaos in the nation.
We have taken some time to read and try to understand what all the legal brains around us are saying about judge Hamaundu’s decision. We are surprised that judge Hamaundu has decided that judgments from the United Kingdom cannot be directly registered in Zambia. He says this is because there is no enabling legislation, or to try and put it as he put it himself, there is no order to that effect that was made by the Governor of the then Northern Rhodesia or the President of the Republic of Zambia, as we are now known.
What judge Hamaundu is saying is that in 1959 or there about, when the law that we now use to register foreign judgments was enacted, British judgments could not be registered in its own colony of Northern Rhodesia. How possible is it that the United Kingdom would enact laws that stopped judgements from its courts, from being registered in one of its colonies? Lawyers would say that with the greatest respect to the judge his interpretation of the law is wrong and absurd.
These are the things that we are seeing in the decision of our courts. Things that are supposed to be straightforward and well-settled are being confused for reasons that are not clear. A judge of the seniority of justice Hamaundu cannot fail to apply a basic principle such as stare decisis involving a case which he himself had not very long ago decided. And this is what is raising a lot of questions as to whether or not this was an oversight, a mistake or a deliberate act arising from undue influence or unnecessary considerations. Others may wonder whether this was a product of incompetence. Incompetence is difficult to justify given the quality of reasoning. The reasoning that judge Hamaundu employs is not the reasoning of an incompetent person. If anything, he seems to get right up to the door but decides to hit himself against the wall. His reasoning clearly showed him that Chiluba’s judgment is registerable but he chose not to register it. The question is why?
The other thing that is raising a lot of questions is why his clearly wrong decision is being defended by those who were seeking to register that judgment and others connected to the judiciary and the executive – people who should know better that his decision is wrong. No amount of pontification can turn this wrong decision into a right one. As Jimmy Cliff once said in a reggae rhythm, “…you can’t be wrong and get it right…” at the same time.
Labels: EVANS HAMAUNDA, FREDERICK CHILUBA, JUDICIARY
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Hamaundu's decision over London judgment wrong - TIZ
By George Chellah and Patson Chilemba
Sun 22 Aug. 2010, 04:00 CAT
TRANSPARENCY International Zambia (TIZ) has advised Attorney General Abyudi Shonga not to be influenced by political pronouncements concerning the appeal against Lusaka High Court judge Evans Hamaundu’s ruling on Frederick Chiluba’s London judgment.
But Vernon Mwaanga said the government’s position not to appeal against judge Hamaundu’s decision to throw out an application by the state to register the London judgment against Chiluba and others must be respected.
In a letter to Shonga dated August 20, 2010, which was also copied to Vice-President George Kunda and Law Association of Zambia (LAZ) president Stephen Lungu, TIZ executive director Goodwell Lungu urged Shonga to consider appealing.
“Dear Sir, RE: TIZ RECOMMENDATIONS ON JUDGE EVANS HAMAUNDU’S RULING ON THE REGISTRATION OF THE LONDON HIGH COURT JUDGMENT AGAINST DR. FTJ CHILUBA AND OTHERS. The above captioned subject refers. We write to recommend to your good office to consider appealing or consider registering the London High Court Judgement involving Dr. Frederick Chiluba and others under Common law as observed in Judge Evans Hamaundu’s August 13th 2010 judgment.
We wish to also encourage your office not to be influenced by political pronouncements such as the one attributed to the Chief Government spokesperson in today’s Times of Zambia that Government will not appeal, as we believe such a decision can only be made by your office which is a competent authority as the current Attorney General of the Republic of Zambia (AGZ) on this matter,” Lungu stated.
“We write and want to note from the outset that Transparency International Zambia (TIZ) wishes to place on record its gratitude to the former Attorney General but now his honour the Vice President and Minister of Justice for the Republic of Zambia, Hon. George Kunda, SC for having taken a leading role on behalf of the people of Zambia in ensuring that the Former Republican President, Dr. Fredrick Chiluba and others were pursued in the London High Court for defrauding the people of Zambia of millions of United States Dollars.
For the avoidance of doubt, the London High Court judgment established that “The AGZ then Mr. George Kunda considered it appropriate for the proceedings to be brought in the High Court in London for a number of reasons. First it is alleged that significant Defendants namely MCD, CM and AS (Meer Care and Desai, Cave Malik & Co. and Atan Shansonga) were based in London and large amounts of the allegedly stolen monies were passed through accounts held by them onward to other destinations both in Europe and elsewhere. Accordingly AGZ Mr. Kunda concluded that the claims he brought were centred in London”.”
He stated that TIZ believed that the government then decided to take such a course of action believing that the money in question was for the citizens of Zambia.
“TIZ has taken time to study and reflect on the ruling passed by Judge Evans Hamaundu on 13th August, 2010 in which he set aside the order granting the Attorney General leave to register the judgment of the London High Court of Justice obtained against former President Dr. Frederick Chiluba and others.
Our observation is that the issue that the Zambian High Court has addressed in its judgment is only one – namely whether the judgment of the London High Court of Justice should be enforced by direct registration. High Court Judge Hamaundu does not, anywhere in his judgment pronounce himself on the judgment’s validity, which judgment was obtained in a competent court; the London High Court of Justice,” he stated.
He stated that as far as they were concerned, the findings against Chiluba and others still remain valid.
“Our understanding of the Ruling is that Judge Hamaundu did not state that judgments from the United Kingdom could not be enforced in Zambia except that he has set aside the order to grant the Attorney General of Zambia, on behalf of the Zambian people, leave to directly register the London High Court judgment under the Foreign Judgments (Reciprocal Enforcement) Act.
Judge Hamaundu states that a judgment creditor (Attorney General) wishing to enforce a foreign judgment at common law will have to commence an action founded on that judgment as a cause of action (J19. It is our considered view that Judge Hamaundu actually presented your honourable office another avenue through which you should consider in seeking the enforcement of the foreign judgment against Dr. Chiluba and others,” Lungu stated.
“We find it instructive that Judge Hamaundu in his judgment does not favour direct registration as a way of enforcing foreign judgments. What we find more intriguing is that he fails to refer to his own judgment in Reefcor Limited v. Les Generals Des Carriers Et Des Mines Exploitation Gecamines (High Court for Zambia, Kitwe District, (11 June 2007) (2002/HK/526) where he allowed for direct registration, a judgment rendered by the High Court of South Africa despite the respondent arguing that South Africa is not one of Her Britannic Majesty’s dominions, neither is it a British protectorate nor a mandated territory and that it does not have a reciprocal agreement with Zambia and did not fall under the Foreign Judgment (Reciprocal Enforcement) Act Chapter 76 of the Laws of Zambia.
Judge Hamaundu after observing that no proof was rendered in court to show that South Africa had not been added to a list of countries covered by the Foreign Judgment (Reciprocal Enforcement) Act, held: “assuming that South Africa is not one of the scheduled countries, I wish to cite the case of Mileta Pakou and Others v. Rudnap Zambia Limited (1998) ZR 233”.
“He applied the following passage from the Supreme Court Judgment in Mileta Pakou: –“The law which applies in Zambia in default of any statute is the common law of England.
At Common Law, the judgment of any competent foreign court for a sum certain is enforceable as a simple debt on the basis of an implied obligation, which arises on the part of the judgment debtor. However, the foreign court must have had the necessary jurisdiction.”
The Judge then dismissed the application to set aside the Registration. Essentially, the Judge sanctioned the direct registration under CAP 76, of the Judgment on the basis of Common Law.”
He stated that TIZ was baffled that judge Hamaundu elected not to be bound by his own precedent.
“We encourage your office to pursue this issue to its logical conclusion. It is important to note that the Zambian Government has already used the London High Court judgment to extract payments from defendants Atan Shansonga, Bimal Thaker, B.B Thanker, Cave Malik and their insurers in the United Kingdom,” Lungu stated.
“Properties in Belgium were recovered with a gross value of US$8 million in a claim against four (4) European defendants based on the same allegations of conspiracy to defraud as was maintained against Dr. Chiluba and other Zambian defendants.
The Zambian Government has registered the same Judgment against Raphael Soriano in the Belgian Courts and resisted an application by Raphael Soriano challenging that registration.
“Given this new development, we believe that your office on behalf of the Zambian Government will inform the Zambian people of the next steps as soon as possible. TIZ is of the view that such an important pronouncement on the law as to reciprocity of UK Judgments must go all the way to the Supreme Court.
As far as we are concerned, this matter is far from concluded and it will be a pity if Government abbreviates this process for other reasons other than legal ones.”
He said it was TIZ’s unwavering position that this is a matter of immense public interest and it cannot be abandoned at this hurdle.
“It is thus unimaginable that your good office can abandon the cause at this stage given the rather large judgment sum which should be recovered from the judgment debtors. Thanking you in anticipation for your next steps in this important matter,” stated Lungu.
But commenting on the demand by LAZ to appeal against judge Hamaundu’s decision to dismiss an application by the state to register the London judgment, Mwaanga, who is MMD parliamentary chief whip, said the government’s position not to appeal meant that they had studied the judgment and concluded that there was no basis on which to appeal.
“Even that view not to appeal has got to be respected as well, because they are the ones who are competent to make that decision. It is the state that wanted the judgment to be registered. They are the ones who spent hours and money working on this case,” Mwaanga said.
“But on the basis of the judgment, they have studied the judgment obviously and they have come to that conclusion. And that view has got to be respected.”
Mwaanga said he respected the outcome of the judgment.
He said appealing was a matter for the government to decide.
“If they feel that there are reasonable grounds for appeal, I am sure they would have done so already. But from what I have been able to read in the media they have decided that they are not ready to appeal against the decision, and I respect that as well,” Mwaanga said.
“If the judge makes a far reaching decision, one has to study it very carefully, study its implications and from what I have been able to read as a lay man, his decision was quite well founded, unless someone is able to come up with something to the contrary. Unfortunately I am not the one who makes the decisions as to whether there should be an appeal or not.”
Mwaanga said he had read LAZ’s position on the matter but that was their view.
“There are also other views of prominent lawyers on both sides. Law you know is not an exact profession where all lawyers will agree on how the law should be interpreted.
So the LAZ view is one view, the judge has got another view,” Mwaanga said. “There are other people who have got other views. And it is part of our democratic dispensation to respect each other’s views.”
Mwaanga said there were many legal interpretations, adding that one could not say there was one view, which everybody should accept.
Mwaanga said the question of whether or not to appeal should be left to those who were competent.
In a press statement dated August 20, 2010, LAZ demanded an appeal against judge Hamaundu’s decision to throw out an application by the state to register the London judgment against Chiluba and others.
LAZ argued that the decision on the matter should be left ultimately to the Supreme Court to decide.
“For the purpose of creating an appropriate jurisdiction in law, the Attorney General should appeal to the Supreme Court so that there is finality in the matter. The judgment of the High Court has far reaching implications and therefore there is need for clarity in this area of the law,” stated Lungu. “In the alternative, the Attorney General is encouraged to consider commencing a fresh course of action under common law.
In his judgment, the Judge of the High Court alluded to this aspect and the Association is of the view that the Zambian government through the Attorney General should take all steps to ensure that finality is brought to this matter that has been costly not only to the government but the people of Zambia.
Labels: ABYUDA SHONGA, EVANS HAMAUNDA, FREDERICK CHILUBA, GOODWELL LUNGU, JUDICIARY, STEPHEN LUNGU, VERNON MWAANGA
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Let’s do the right thing and avert a crisis
By Editor
Fri 20 Aug. 2010, 04:00 CAT
In every society, there are men of base instincts. The man who abides by unjust laws and permits any man to steal the meagre financial resources of his poor people, to trample on and mistreat the country in which he was born, is not an honourable man. And it doesn’t matter what title he holds, he can be his excellency, honour, lord, grace and so on and so forth. He will still remain a man without honour.
In the world, there must be a certain degree of honour just as there must be a certain amount of light. When there are many men without honour, there are always others who bear in themselves the honour of many men. These are the men who every day risk their lives to question and denounce that which is wrong; these are the men who denounce those who steal from their people and those who protect thieves who have stolen from the people; that is to say, those who voice out against those who steal human honour itself. In those men, thousands more are contained, an entire people is contained, human dignity is contained.
And we are using the term “men” not as a means to discriminate against women, rather as a generic term encompassing the species, men and women.
It is understandable that honest people and all those who are against corruption and abuse of power are considered enemies of state institutions and those who manage them in a Republic where the president is best friends with a man who has been found to have stolen millions of dollars from state coffers, and has even hired this same thief to be his political advisor and consultant going round campaigning for him.
We were not surprised yesterday to hear that Ronnie Shikapwasha, the vuvuzela of this corrupt government, has announced that they have no intention of appealing against the decision by Lusaka High Court judge Evans Hamaundu to throw out the Attorney General’s application to register the London High Court judgment which found Frederick Chiluba and seven members of his tandem of thieves liable for theft of about US $46 million.
Shikapwasha says this government has more important things to pursue than appeal against judge Hamaundu’s decision and subsequently undermine the work of the judiciary.
It was not difficult to guess how things were going to turn out in this whole matter. From the time they conspired to have Chiluba acquitted in the corruption proceedings against him and refused to have that acquittal appealed, it was clear to all that these same people were not going to have the London High Court judgment enforced by themselves against this valuable friend of theirs whom they have hired to help them win next year’s elections.
They have not even attempted to cover matters. They have not bothered in the least to conceal what they are doing. They think they have deceived the people with their lies, but they have ended up deceiving themselves. They feel themselves lords and masters of the universe, with the power to get whatever they want – if they want anyone acquitted, this happens; and if they want anyone convicted and sent to jail, this also happens.
This reminds us of Dante who divided his inferno into nine circles. He put the criminals in the seventh, the thieves in the eighth and the traitors in the ninth. Difficult dilemma the devils will be faced with, when they try to find an adequate spot for this man’s soul – if this man has a soul. The man who stole from the poorest of the poor of this country doesn’t have even a heart.
To believe for a single moment that what they are doing or what they have done is justice would suffice to fill a man of conscience with remorse and shame for the rest of his life. There is no justice in all this. All there is in this is fraud, deception and abuse of power, so we shall not mince any words about their corruption and their abuse of state institutions to cover up the crimes of their league.
Rupiah Banda has referred to Chiluba as a damn good president and has pronounced him innocent. This being the case, who among Rupiah’s appointees can have the courage to challenge this?
We know that a good part of our judiciary serves at the pleasure of Rupiah. He single-handedly offers contracts to judges who have reached retirement age. And how many judges in this country are today serving at his pleasure under such arrangements? And how many others are looking up to Rupiah for similar contracts? This is certainly not a recipe for an independent judiciary. What we have is a captive judiciary. And how many judges and other judiciary officers are looking up to Rupiah for promotion?
Again, this is not a recipe for an independent and impartial adjudication.
It therefore doesn’t surprise us that the government will not appeal judge Hamaundu’s highly questionable decision to allow Chiluba to keep his loot in Zambia. This is not justice, but a mockery of it.
There are many unpleasant things about our judiciary. But as long as those in charge of the affairs of our judiciary are in good terms with those running the executive, nothing will happen to change things. This will remain for a long time until our people can no longer tolerate it.
We are not alone in this situation. This is exactly what the Kenyans have gone through. And today, the Kenyans have decided to change things for the better and have come up with a constitution that totally curtails the president’s powers to abuse the judiciary.
They have decided to start afresh, and they are dissolving the entire judiciary and will replace it with fresh appointments. The executive and the legislature have also been separated. Ministers in Kenya will no longer be appointed from members of parliament. This will also mean that parliament will be more independent of the executive.
All appointments of judges, and indeed of ministers, will have to be passed by parliament.
And this is not in the way we are doing it now where we have a parliament that is simply an extension of the executive and as such whatever the president wants literally goes through.
We may be still far away from where the Kenyans have reached, but a day will come when things will have to change. We can’t continue on this path and hope to build a prosperous and democratic nation. We are headed for disaster, and one of the tests of leadership is the ability to recognise a problem before it becomes an emergency.
The highest proof of virtue is to possess boundless power without abusing it.
Today, those in charge of our state institutions – the legislature, the executive and the judiciary – are all in one way or another abusing the power vested in them with impunity. There is increasing collusion and complicity among these three institutions of our state. The separation of powers among our state institutions is not there in practice – it’s simply a theoretical one. Again, this is not a recipe for governing well.
The country is collapsing, the rule of law is breaking down. At the rate we are going, we will start to witness things we are not accustomed to. Soon, people will be denouncing judges openly without even fear of being locked up for contempt.
And people shouldn’t cheat themselves that going to jail on contempt is something that will keep people away from pointing out the naked transgressions in our whole judicial process. At some point in one’s life, fear is pushed to the background, and the forces of evil are taken on without respite. We are nearing that point; the signs are clearly written on our walls.
But with the leadership and commitment by the best and the most noble of our politicians, of our judges and other civic leaders, this can be avoided. There is no need to pretend that all is well and it’s just a few disgruntled elements at The Post causing problems.
Displeasure and dissent is growing against the way state institutions are being run. And the only way to calm things down and avert a crisis is to do the right thing. Every citizen now knows what is going on in their state institutions, and most of them don’t like it at all. This rot has to stop. Again, let’s pay attention to what is happening in Kenya and learn something from it.
We are not suggesting that we imitate the Kenyans; we are simply saying let’s learn something from their experiences and the solutions that they are coming up with. Look at their constitution review process and compare it with ours. Look at the constitution they have come up with and compare it with the joke, the rubbish, the mediocrity of our National Constitutional Conference.
Let’s do the right thing and avert a national crisis!
Labels: CORRUPTION, COURTS, EVANS HAMAUNDA, FREDERICK CHILUBA
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LAZ demands appeal against High Court’s decision on London judgment
By Patson Chilemba
Fri 20 Aug. 2010, 14:10 CAT
THE Law Association of Zambia has demanded an appeal against High Court judge Evans Hamaundu's decision to throw out an application by the state to register the London High Court judgment against Frederick Chiluba and others.
The position by LAZ comes in the wake of judge Hamaundu's decision to throw out an application by the state to register the London judgment that found Chiluba and others liable for theft of about US$46 million public funds.
In a press statement dated August 18, 2010, LAZ argued that the decision on the matter should be left ultimately to the Supreme Court to decide. "The recommendation of the Committee is that LAZ endeavours to recommend to the stakeholders in this issue that the decision of the Honourable Judge be appealed against. Even if the Judge was correct in his view, and we opine that he was not, a decision of this magnitude must, for the sake of the development of jurisprudence on the issue, be left to the Supreme court to ultimately make," LAZ stated.
"The Committee also recommends that council review the arguments prepared by Professor Muna Ndulo in this matter which provide insight on the issues at play. And so we opine." LAZ stated that there were two issues that arose from the decision of the Judge set out above. The association stated that the High Court of Zambia has had occasion to consider the Registration of Foreign Judgments from a country in respect of which no order extending the application of part II of CAP 76 to Judgments from the Courts of that Country had been made. "In the case of Reefcor Limited v. Les Generals Des Carriers Et Des Mines Exploitation Gecamines (2002/HK/526) the Hon. Mr. Justice Hamaundu, upon an application to set aside the registration of a judgment rendered by the High Court of South Africa being made before him, observed that: 'assuming that South Africa is not one of the scheduled countries, I wish to cite the case of Mileta Pakou and Others v. Rudnap Zambia Limited (1998) ZR 233.'
“The law which applies in Zambia in default of any statute is the common law of England. At Common Law, the judgment of any competent foreign court for a sum certain is enforceable as a simple debt on the basis of an implied obligation which arises on the part of the judgment debtor. However, the foreign court must have had the necessary jurisdiction. The Judge went on to dismiss the application to set aside the registration of the South African Judgment," LAZ stated. LAZ stated that in his judgment of August 13, 2010, Judge Hamaundu did not refer to the earlier judgment he had rendered on a similar issue. The association argued that having clearly departed from the decision he made in the Reefcor case, judge Hamaundu was obliged to distinguish the latter case from the one involving the London Judgment. "By failing to do so, and yet arriving at a contrary conclusion in the later case, he contravened the well known doctrine of stare decisis, and, on this basis alone, his Judgment is liable to be reversed on appeal," LAZ stated. LAZ stated that in any event, the Supreme Court has held in two decisions cited by judge Hamaundu in his Judgment of August 13, 2010 that decisions of the Superior Courts of the United Kingdom were enforceable in Zambia. LAZ argued that judge Hamaundu was obliged to follow the guidance of the Supreme Court. "The Judge's Interpretation of Section 9 of Cap 76. Section 9 of the Foreign Judgments (Reciprocal Enforcement) Act provides thus:-
(1) The President may by statutory order direct that this Part shall apply to Her Britannic Majesty's dominions and to judgments obtained in the courts of the said dominions as it applies to foreign countries and to judgments obtained in the courts of foreign countries, and, in the event of the President so directing, this Act shall have effect accordingly and the British and Colonial Judgments Act, Chapter 16 of the 1959 Edition of the Laws, shall cease to have effect except in relation to those parts of the said dominions to which it extends at the commencement of the order," LAZ stated.
"(2) If, at any time after the President has directed as aforesaid, an order is made under section three extending this Part to any part of Her Britannic Majesty's dominions to which the British and Colonial Judgments Act, Chapter 16 of the 1959 Edition of the Laws, extends as aforesaid, the said Act shall cease to have effect in relation to that part of Her Britannic Majesty's dominions, except as regards judgments obtained before the commencement of the order.
"(3) References in this section to Her Britannic Majesty's dominions shall be construed as including references to any British protectorate or protected state and any territory in respect of which a mandate on behalf of the League of Nations has been accepted by Her Britannic Majesty." LAZ stated that the association's view of this provision of the law was that:
“(a) An order of extension under subsection one could issue in respect of Her Majestyís Dominions not already subject to such an order in terms of the British and Colonial Judgments Act. The latter Act would then not apply to those territories;
(b) In terms of subsection two, an order of extension could be made to apply the provisions of part II to Her Majesty’s Dominions already covered under the British and Colonial Judgments Act (this necessarily includes the United Kingdom)." LAZ stated that the only question was if the order made by the Governor in 1958 an order within the meaning of section 9(2)
"The order made by the Governor is in these terms. It is hereby directed that Part II of the Act shall apply to Her Britannic Majesty's dominions and to judgments obtained in the courts of the said dominions as it applies to foreign countries and to judgments in the courts of foreign countries." LAZ stated that the reading of this order showed that on its face, it was intended to apply to section 9(2).
The association stated that the Order contained the expression ìas it applies to foreign countries and to judgments in the courts of foreign countriesî.
"This is in terms of section 3 of the principal Act, which is referred to in section 9(2) of the Act. The clear intention of the legislator is to bring all judgments of her Majesty’s Dominions including the United Kingdom under the ambit of the Ordinance (now the Act), and thus rendering the British and Colonial Judgments Act irrelevant. Indeed that Act was repealed the very next year after the Governorís Order," LAZ stated. LAZ stated that the interpretation was vindicated by the fact that in terms of the extension orders issued by the Governor for Gilbert and Ellice Islands and the British Solomon Islands Protectorates, these referred to specific territories and clearly fall under section 9(1).
"The interpretation the Judge takes of this section and the Order under it defies the golden rule of statutory interpretation. By the Judge's reasoning, it was not possible after 1959, the year the British and Colonial Judgments Act was repealed, to enforce a Judgment from the United Kingdom in Northern Rhodesia. In effect, the Judgments of the Colonial Master were not enforceable in the Colony, Northern Rhodesia," LAZ stated. "This we submit is an absurdity. The legislator is deemed to act reasonably, and to that extent, the order of 1958 clearly applied to the United Kingdom; unquestionably one of her Britannic Majesty's Dominions. That is the interpretation of the law which avoids absurdity, and which in our view is clear from the face of the section and the order." LAZ gave a background on the London judgment involving Chiluba. The association stated that on July 9, 2007, the Attorney General of the Republic of Zambia (the ‘Judgment Creditor’) applied for and obtained ex parte, out of the High Court of Zambia an order for leave to register, in the Zambian High Court, a judgment which the judgment creditor obtained in the London High Court of Justice (the “London Judgment”), in the United Kingdom against Dr. Frederick Jacob Titus Chiluba and other defendants (the “Judgment Debtors”). LAZ stated that the Judgment Debtors applied to set aside the order granting leave and the application ultimately fell to the Hon. Mr. Justice Hamaundu to determine. LAZ stated that on August 13, 2010 justice Hamaundu upheld the Judgment Debtors’ application and set aside the order granting leave. "In so doing, the Judge held, in sum, that:- 1 The British and Colonial Judgments Act was enacted, primarily, to provide legislation by which judgments of Superior Courts in the United Kingdom would be registered in Northern Rhodesia.
Hence, Section 3 thereof provides for the registration of judgments obtained in the High Court in England or Ireland or in the Court of Session in Scotland. It was not necessary for the Governor of Northern Rhodesia to issue any order extending the Act to the United Kingdom before judgments of Superior Courts in the Kingdom would be considered for registration. However, the Governor had a discretion to extend, by declaration, the application of the Act to any of Her Majesty's dominions outside the United Kingdom" After the repeal of the British and Colonial Judgments Act in 1958 (by the Foreign Judgments (Reciprocal Enforcement) (Amendment) Ordinance No. 12 of 1959) which was the Act on the basis of which Judgments of the United Kingdom could be enforced in Zambia, Judgments of the United Kingdom could not and still cannot be enforced in Zambia. LAZ stated that In the Judge's view, the Foreign Judgments' (Reciprocal Enforcement) Order issued by the Governor of Northern Rhodesia in 1958 under the Foreign Judgments (Reciprocal Enforcement) Ordinance, (which is now the Foreign Judgments (Reciprocal Enforcement) Act Chapter 76 of the Laws - pursuant to Statutory Instrument No. 152 of 1965) related to Her Britannic Majesty's dominions outside the United Kingdom and not to the United Kingdom itself.
"The Judge's conclusion at (3) above springs from his interpretation of section 9 of the Foreign Judgments (Reciprocal Enforcement) Ordinance, (which is now the Foreign Judgments (Reciprocal Enforcement) Act Chapter 76 of the Laws)," stated LAZ. "The Judge contends that on a reading of that section, the Governor (and subsequently the President) would have required to issue an order under section 9(2) of the Ordinance/Act extending the application of part II of the Ordinance/Act to the United Kingdom after the repeal of the British and Colonial Judgments Act before a Judgment of the United Kingdom could be enforced post 1959 when the latter Act was repealed."
Labels: EVANS HAMAUNDA, FREDERICK CHILUBA, LAZ, STEPHEN LUNGU
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Hamaundu has turned judicial decision making on its head
By The Editor
Thu 19 Aug. 2010, 04:00 CAT
If anyone starts a process in which key institutions of the state begin to be undermined and their prestige and influence destroyed, that process is very negative.
If you undermine or destroy the prestige of the state institutions, the consequences are terrible. What people are saying about our state institutions today is not just a matter of analysis or criticism of decisions, but of the destruction and negation of all the values, merits and history of our state institutions. When a country is destroyed, the first things to go are state institutions.
When these fail, everything fails. And sometimes people who initiate the destruction of state institutions and the eventual collapse of a country may not have envisaged or conceived the level of their destruction. In many cases, such destruction may not have been their intention. But all this is usually a result of enormous mistakes, of failing to foresee the consequences of what they are doing and of not doing the right thing to reach the goals and purposes they proclaim – which, of course, sometimes may be necessary and legitimate.
The consequences of undermining and destroying state institutions are too ghastly to contemplate. If you undermine and destroy state institutions, then, unfortunately, when difficult times come, the people do not have any institutions to turn to. This is why every effort needs to be made to protect and retain the institutions of the state.
There is a tendency for society to make itself believe that all is well and forget to retain a critical mind as it looks at the affairs of the nation.
Those who raise criticism are viewed suspiciously and sometimes maligned as disgruntled elements, cynics, rabble-rousers with nothing better to do. Truly, communities and societies are not built by disgruntled elements, by cynics. But there is need to distinguish between legitimate criticism and cynicism. If every criticism is seen as cynicism, then there is a problem, then we are headed for disaster. This is something that we need to guard against. We cannot allow a situation where all criticism is dismissed as cynicism. But this is something that we see many of our people who are in positions of authority trying to do. They are not prepared to be criticised when they perform a public function. And to most of them, criticism is equivalent to enmity, to a biblical curse.
We must make every effort to ensure that we remain vigilant and are quick to raise the alarm when things are not going right. This is more important when those things which are not going right have to do with institutions of the state. We all have a duty to ensure that every institution that is created to serve public good is preserved for our common benefit. Indeed, every generation has an inescapable duty to preserve state institutions for the benefit of the succeeding generation. It is only irresponsible people that do not care about the next generation. Government of and by the people means that the citizens of a democratic society share in its benefits and in its burdens. By accepting the task of self-government, one generation seeks to preserve the hard-won legacy of individual freedom, human rights and the rule of law for the next. In each society and each generation, the people must perform the work of democracy anew – taking the principles of the past and applying them to the practices of a new age and a changing society. Indeed, when we look at an area such as the practice of the law, we all continue to benefit from the wisdom and decisions of people who lived many, many years ago but passed to us a legacy of their thinking and understanding which we today use to organise our legal affairs.
Indeed, to ensure that we remain self-critical and well served by the institutions of the state, we have many organisations that have been created for the purpose of helping society in this way. These are also institutions that need to be safeguarded and helped to play their role in the most beneficial way. And democracies make several assumptions about human nature.
One is that, given the chance, people are generally capable of governing themselves in a manner that is fair and free. Another is that any society comprises a great diversity of interests and individuals who deserve to have their voices heard and their views respected. The voices of democracy include those of the government, its political supporters and opposition, of course.
But they are joined by the voices of organised interest groups, professional associations, labour unions, community associations, the news media, scholars and critics, religious leaders and writers, churches and schools and so on and so forth. All these groups are free to raise their voices and participate in the democratic political process. In this way, democratic politics acts as a filter through which the vocal demands of a diverse populace pass on the way to becoming public policy.
In this regard, the Law Association of Zambia is a very important professional body. In many ways, it is unique in that its functions are cross cutting. It is the one body that our people legitimately expect to knowledgeably comment and give practical guidance on every legal matter of a public interest nature regardless of the subject. In that way, they should be available to discuss science or economics, politics or religion, sports or arts, as long as the context is legal. This therefore makes the Law Association of Zambia a very important institution indeed.
Admittedly, over the years, this fraternity of lawyers has made very significant contributions to the development of our democracy. But we must be quick to add that its best contributions have been when it has acted decisively without timidity in safeguarding public interest. Lawyers, by their training, are quick to analyse the implications of many public policy issues. But that analysis is useless it is not followed up by quick public action. And this is where bravery and boldness is required. And it’s not by accident that some of the world’s best revolutionaries and statesmen are lawyers – Nelson Mandela, Oliver Tambo, Fidel Castro, Bill Clinton, Tony Blair. And even Lenin was a lawyer. And today, the first black President of the United States, Barack Obama, is a lawyer.
What are we saying? Lawyers have an important duty to society. In many ways, they are oracles that must keep society on a straight path. This is something that the Law Association of Zambia needs to reflect on very carefully. We say this because we constantly get a troubling feeling that the Law Association of Zambia is somehow trying to shy away from its responsibility. We seem to have a law association today which is too nuanced to be clearly understood when it takes a position on anything. We have an association that seems to specialise on doublespeak, on eating with two hands and trying to be in good terms with everybody, especially those who wield political power. Whatever they say can mean this or that, therefore not helping to guide anyone. And this is exactly what opportunism is. An opportunist, by his very nature, will always evade taking a clear and decisive stand. He will always seek a middle course, he will always wriggle like a snake between two mutually exclusive points of view and try to “agree” with both and reduce his differences of opinion to petty and pious issues that can easily be compromised upon and so on and so forth.
But a law association that operates on this line is of no use to anyone. We are saying what we are saying because this association is too important to our country to be allowed to drift along aimlessly. If the law association had behaved the way it is behaving today, it couldn’t have made a contribution to the peaceful transition of power in 1991. Indeed, the law association of today could not have played a pivotal role that the law association of 2001 played to stop Frederick Chiluba’s attempt to massacre the Constitution in order to allow himself an illegitimate third term of office. The Law Association of Zambia, in those instances, took very clear uncompromising stances in favour of the masses of our people. This does not seem to be the case today. It seems that the law association is more comfortable when it is championing the causes of the powerful. This is why they seem more comfortable to make comments that seem to favour erring officials at the helm of our state institutions. We should be quick to acknowledge that in one instance, at least, this law association took a progressive position. In relation to the unjustifiable acquittal of Chiluba, the law association found the Director of Public Prosecutions wanting in his conduct and demanded his resignation. But after that, this law association seems to have gone to sleep and is not at the forefront of championing the causes of our people. It has even failed to continue or sustain its demand for the Director of Public Prosecutions to resign.
We all should understand and appreciate the duty of the law association to defend the judiciary from unwarranted attacks. This is a good thing. But when there is a crisis in the judiciary, as seems to be the case now, it is also the duty of the law association to state its position clearly. These are not matters that are going to be dealt with behind closed doors. They are not private problems, these are public problems. And moreover, the law association’s loyalty to the judiciary and those in charge of it, cannot take precedence over its obligations to the people. Obligations to the people take precedence over any commitments to an individual or even an institution – which is after all a creation of the people themselves.
It is important for the law association to champion the causes of the weak and insignificant. An example of the association’s impotence in the current political climate is the public posture that the association has taken on the plight of one of its members – Nsuka Sambo. We have no doubt that a poll of all the members of the law association would show that few, if any, believe that what the Supreme Court did was correct. One of their own members has been subjected to the most unusual and strange administration of justice that this country has ever known. And yet the law association is quiet. Indeed, the only comment attributed to the law association on this matter suggested a support for this unusual form of justice, or rather injustice. An association which won’t stand for its vulnerable member in his hour of need but is quick to defend judges who have a battery of self-defence mechanisms is irrelevant to the democratic needs of our country. And this is what the Law Association of Zambia has been reduced to. Anybody in this country who calls himself a lawyer must be ashamed about what has happened to Sambo, whatever view they take of the matter.
We are waiting to see what position the law association will take on the failure by our judiciary to register Chiluba’s London High Court judgment. We continue to say that we are not experts on law but we know enough to say something. Judge Evans Hamaundu has turned the very foundations of judicial decision making on its head. Anyone who knows anything about the way courts work will agree that precedents of previous decisions are the currency that drives judicial decision making. This honourable judge has even disregarded his own decision in order to allow Chiluba to get away with his loot and keep everything he has stolen from the Zambian people. Judge Hamaundu in the case of Reefcor Limited versus Les Generals Des Carriers Et and Des Mines Exploitation Gecamines, directly registered a South African judgment even though he found that South Africa was not on the list of countries from whom Zambia could ordinarily accept judgments. This was his own decision. And in law, a judge is not permitted to disregard his own decision because this is a recipe for judicial anarchy. But this is exactly what judge Hamaundu has done. What is even more worrying is that he tells us that he has scanned the law and found no basis to register this judgment, obviously he did not look at his own judgment which is part of the law. It would have been better if the judge had at least explained why he disregarded his own judgment.
These are matters that are going to concern our people. What is the law association saying? What is it going to do about this clearly questionable judgment on a matter of such great national importance? Anyway, as the saying goes, the jury is out and our people will make their decision known.
Labels: COURTS, EVANS HAMAUNDA, FREDERICK CHILUBA
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Zambia has entered a dangerous phase – Ndulo
By Amos Malupenga
Wed 18 Aug. 2010, 15:00 CAT
Professor Ndulo (left) observed that Zambia had entered a dangerous phase following Lusaka High Court judge Evans Hamaundu’s decision to throw out an application to register the London High Court judgment that found former president Frederick Chiluba (right) and others liable for theft of about US $46 million public funds. United States based Zambian law Professor Muna Ndulo yesterday said he is shocked and confused by Lusaka 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.
Commenting on judge Hamaundu’s judgment, Professor Ndulo observed that Zambia had entered a dangerous phase.
“While respecting the independence of the judiciary as we all must, I am shocked and confused by judge Hamaundu’s judgment,” Professor Ndulo said.
“The courts ought to be listening to reasoned argument. Regretfully, anything is possible in circumstances where courts are prepared to interpret statutes and case law in a manner which serves their desired objectives. Zambia has entered a dangerous phase. The country needs a good constitution that enhances the independence of the judiciary, strips the presidency of the powers and patronage that fuel dictatorial rule.”
Professor Ndulo regretted that the National Constitution Conference in its recently adopted constitution had squandered the opportunity.
Last Friday, judge Hamaundu threw out an application by the state to register the London High Court judgment that found Chiluba and others liable for theft of about US $46 million public funds.
He 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.
Judge Hamaundu 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: EVANS HAMAUNDA, MUNA NDULO
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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
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‘Rich’ govt worker loses application
Written by Maluba Jere
Friday, May 22, 2009 2:05:07 PM
LUSAKA High Court judge Evans Hamaundu has rejected former Ministry of Health official Henry Kapoko's application for judicial review, in which he was challenging the seizure of his property by the Anti Corruption Commission (ACC) saying he was not the right applicant to commence the proceedings.
This is in a matter where Kapoko had filed an application for a judicial review to challenge the seizure of his property and that of innocent third parties by the ACC.
In his application for judicial review, Kapoko asked the court to declare the ACC's decision to seize the said property null and void.
He also applied that the court should quash the decision by the commission to seize the property in contention.
But in his ruling yesterday, judge Hamaundu said the applicant had no direct and personal interest to the seizure of the motor vehicles and that the action ought to have been taken to court by the owners of the seized property.
He said consequently, the owners of the seized motor vehicles would be in a better position than the applicant to give to the court the reasons why the said motor vehicles should be released to them.
“While I am aware that the applicant has shown that the vehicles were seized pursuant to investigations being conducted against him, it is my view that the owners of those motor vehicles have a more direct and personal interest to the seizure of the vehicles than the applicant has,” judge Hamaundu said.
He noted that according to law, the overriding rule governing the standing of the applicant to apply for a judicial review was that the court should consider that the applicant had sufficient interest in the matter to which the application related.
Judge Hamaundu said if the applicant had a direct personal interest in the relief, which he was seeking, then it was very likely to be considered as having sufficient interest in the matter to which the application related.
However, judge Hamaundu said if the applicant's interest in the matter was not direct or personal, but a general or public interest, then the matter would be for the court to determine whether the applicant has the requisite standing to apply for judicial relief.
“Clearly the formula ‘sufficient interest’ is not intended to create a class of person, popularly referred to as a private attorney general, who seeks to champion public interest in which he is not himself directly or personally concerned under the guise of applying for judicial review,” he said.
In his application for judicial review on Tuesday, Kapoko claimed that despite him explaining clearly to ACC officers that the vehicles were not his, they still went ahead and seized all of them and extended the seizures to other people they thought had a hand in the alleged corruption.
He named the third parties as Rudo Chitengu, Murruam Chinyanbu, Mwila Kalikeka, Mabishe Notulu and a woman called Gloria.
Kapoko further said the X5 BMW vehicle seized belongs to Fred Chileshe, the unregistered van to a Mr Hassan, another unregistered Mercedez Benz CLS 500 to Rashidi while the Hummer and the Ford Ranger belong to another person.
Last week the ACC unearthed a corruption scam in which over K10 billion government funds were suspected to have been corruptly obtained from the Ministry of Health.
The commission has also seized and restricted property in excess of K3 billion allegedly belonging to Kapoko, who is now working at the Ministry of Local Government and Housing in the same department.
Labels: CIVIL SERVANTS, COURTS, EVANS HAMAUNDA, HENRY KAPOKO
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