Living in a fool’s paradise
By The Post
Tue 24 Aug. 2010, 04:00 CAT
THERE’S so much rhetoric about the nobility or sacredness of the work of the judiciary. And an impression is being created that it is a sin to criticise or voice out displeasure about the work and conduct of our judges and magistrates.
Those who try to voice out their criticism or displeasure about the way our judiciary is being run are painted black and are sometimes ruthlessly silenced in all sorts of ways. It would seem that to accept and praise everything that the judiciary is doing is divine but to disagree and question anything that they are doing is a crime.
Citizens must praise the judiciary and accept their decisions without question or criticism. And if any criticism is made, it must be in a rhetorical or academic manner – it should have no effect on the way things are done. But anyone who performs a function that affects other people’s lives must be prepared to be accountable to those people. Accountability is a requirement that we normally associate with those who are in elective office such as politicians.
But we make a mistake if we limit the requirement for accountability to politicians. It is good for politicians to be accountable, but it is necessary also that everybody who performs a public function be accountable.
Accountability is an important aspect of any kind of human relations. Even in our homes, we have to be accountable to our families, even to children who are dependent on us. When things are wrong in the home, we have to be prepared to explain to all the affected if we are running a functioning family.
If accountability can be required in a home, how about in the performance of a public function with the importance that the judiciary has? We are saying this because an impression is sometimes created that the judiciary, which is supposed to be independent, is self-regulating and, therefore, not accountable to the public.
This impression is fortified by the tendency of the judiciary to appear insular and insensitive to the demands of the people it is meant to serve. This, as we have said before, is a recipe for disaster. But it is not only the judiciary that seems to believe that being insular is a virtue.
We have seen this same problem with other constitutionally protected offices such as the Director of Public Prosecutions and even the director general of the Anti Corruption Commission. This is the same attitude that we seem to see with the office of the Attorney General. All these offices are meant to serve the people, and in that regard, they should be responsive to the people.
And where they fail to respond favourably to the demands of our people, they must be able to explain in an honest and principled manner why a given demand of the people should not be made. Partisan political considerations are not part of the reasons that a self-respecting servant of the people should use as a foundation for denying the people what is duly theirs.
Public servants must be brought to understand that the supreme test of their words and deeds is whether they conform with the highest interests and enjoy the support of the overwhelming majority of the people. Anybody who makes decisions on behalf of the people should not cheat themselves that they are free to do as they please.
They may get away with arbitrariness in the short term but a time always comes when their decisions are subjected to scrutiny; if not by their peers, certainly by history. Public servants, unlike our politicians, should be the most far-sighted, the most self-sacrificing, and the least prejudiced in sizing up situations.
They should set an example in being practical as well as far-sighted. And only far-sightedness can prevent them from losing their bearings in the service of their people.
They should also set an example by at all times being pupils of the masses as well as their teachers. They should never be opinionated or domineering, thinking that they are good in everything while others are good in nothing.
They must listen attentively to the views of the people and let them have their say. If what they say is right, they ought to welcome it, and they should learn from their strong point.
If it is wrong, they should let them finish what they are saying and then patiently explain things to them. There’s a good principle that every self-interested public servant must keep in mind. We don’t mean this in any negative sense. We are talking about being self-interested in a positive sense.
That is being concerned about one’s image and legacy after they have left the office they occupy. That principle is to treat everything that one does as though you are going to be questioned about it by someone who was not involved in your decision making. In other words, when you perform a public function, you must be conscious that other people are going to interrogate everything you have done, criticise it and more often than not, try to find fault with it.
This is the nature of public accountability. And because of this, public servants must be ready at all times to stand up for the truth, because truth is in the interest of the people; public servants must be ready at all times to correct their mistakes, because mistakes are against the interest of the people.
They must always go into the whys and wherefores of anything, use their own heads and carefully think over whether or not it corresponds to reality and is really well founded; on no account should they follow blindly.
We believe that when the best opinions, the opinions of the most competent men and women, the most capable men and women, are discussed and subjected to open criticism, they are cleansed of their vices, of their errors, of their weaknesses, of their faults.
This is the spirit that moves us to make criticism. We also believe that it is this same spirit that makes many of our people question or criticise the decisions, actions and conduct of their public servants, including those of their adjudicators.
It is therefore not ill will or malice that moves them; or an intention to bring about a change of opinion, to create an unfavourable opinion in regard to any public servant.
On the contrary, no citizen of goodwill would want to expose a good public servant, a judge, a magistrate to blame and to the scorn to which bad methods, bad decisions, bad conduct will expose them.
Criticism is made simply to overcome these bad methods, bad decisions, errors and all the negative things a public servant can do so that they may free themselves from them and deliver efficiently, effectively and in an orderly manner the services our people legitimately expect from them. We might appear to be too harsh in our criticism of public servants. We feel it is necessary to be so; it is healthy to be so.
And rather than be like that woman who they say kept on looking – who the Bible says – kept on looking toward that lake, towards that city which had sunk, and who was changed into a pillar of salt, we must look forward.
We shouldn’t allow ourselves to be changed into a pillar of salt. That is the only proper attitude for us to have, which all honest men and women should have, which all honest public servants should have without reservation of any kind, without regrets of any kind.
Our judges and other public officials who exercise constitutionally protected powers should know that they need to be sensitive to what our people want; they need to mull over things and listen to the people’s feelings.
As we have said, it is not far-fetched to think that a time could come when judge Evans Hamaundu will be asked why he decided the way he did; why he kept quiet about his previous decision.
This kind of accountability is not impossible and it may indeed come. They may spend many sleepless nights trying to find a way to justify this clearly unjustifiable act. But this will be time wasted. The best thing – and the easiest thing – is simply to accept that something seriously wrong has happened and needs to be corrected.
There are also people like Jones Chinyama – that magistrate who decided to convict Frederick Chiluba’s accomplices and acquit him, making inexplicable distinctions between criminal activities that could not be distinguished – who may have to give an account. This is the mind that our public servants need to have. This is the far-sightedness we are talking about.
We have people like Director of Public Prosecutions Chalwe Mchenga, who today cannot explain truthfully what he did in the case of Kashiwa Bulaya. Were he to be challenged on this, we have no doubt that his only defence would be to point an accusing finger at George Kunda.
And also if Mchenga was today to be asked to truthfully explain his withdrawal of the appeal against Chiluba’s acquittal by Chinyama, his only defence would also be to point an accusing finger at Rupiah Banda in addition to George.
Whatever the case, all those who exercise public authority must live in the constant expectation of a day of accountability. Doing otherwise is to live in a fool's paradise.
Labels: CORRUPTION, EVANS HAMAUNDU, JONES CHINYAMA, JUDICIARY
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Chinyama erred in law to acquit Chiluba - Prof Ndulo
By George Chellah
Tue 02 Mar. 2010, 04:00 CAT
Fredrick Chiluba (L) was charged with six counts of theft by a Public Servant
PROFESSOR Muna Ndulo has observed that Ndola High Court Registrar Jones Chinyama, sitting as magistrate erred in law in not finding former president Frederick Chiluba guilty on charges of theft last August.
According to Ndulo, a Zambian law Professor at United States’ Cornell University, magistrate Chinyama erred in law in finding that Chiluba's unsworn statement was sufficient in itself to rebut evidence established on oath.
Prof Ndulo made the observation in his opinion on the judgment delivered by Chinyama in the case of The People Vs Frederick Chiluba, Faustin Kabwe and Aaron Chungu.
“Fredrick Chiluba was charged with six counts of theft by a Public Servant contrary to sections 272 and 277 of the Penal Code, Chapter 87 of the Laws of Zambia.
He was president of Zambia when the alleged thefts were committed. The magistrate acquitted Frederick Chiluba on the grounds that although the monies used by Chiluba to pay his lawyers and children came out of the ZAMTROP government account and could be traced back to the Ministry of Finance, the prosecution had failed to prove that the monies were not his own monies put in a government account,” Prof Ndulo stated.
“The Magistrate accepted Chiluba's explanation that he had private monies in the Zamtrop account and he, Chiluba, believed that it was those monies which were used to make the relevant payments. Effectively, holding that Chiluba did not dishonestly use government monies.
The magistrate was not convinced that Chiluba did not have any monies of his own in the ZAMTROP government account.
“In coming to this conclusion, the trial magistrate relied on an unsworn statement that Chiluba made in which he, without disclosing the sources of those monies, claimed that he had a large amount ($8.5 million) of private monies in the ZAMTROP government account (JP 242).”
Prof Ndulo, who is also director at Cornell University's Institute for African Development and honorary Professor of Law, Faculty of Law, University of Cape Town, stated that magistrate Chinyama erred in law in finding that an unsworn statement was sufficient in itself to rebut evidence established on oath.
“Even assuming that private money was deposited in the government account, there was no evidence to show that Chiluba was the intended beneficiary and there was no evidence to show that the money was paid into the Zamtrop account for a purpose other than a government purpose.
The necessary inference, in the light of government regulations concerning the use of government accounts and the status of money in them, is that the payments relied on by Chiluba were for a government purpose and/or intended for government beneficially,” Prof Ndulo stated.
“There was no evidence to displace that inference; Chiluba's unsworn statement, unsupported by evidence, was not capable of giving rise to an inference that the monies might be personal monies and/or intended for Chiluba beneficially.
The magistrate misdirected himself on the law relating to: the evidential value of unsworn statements; inferences in criminal cases; on the evidential burden of proof and on his treatment of members of the Task Force as witnesses with an interest to serve and therefore biased.”
Prof Ndulo stated that the prosecution proved its case beyond reasonable doubt.
“And the magistrate, having found that Chiluba had a case to answer, erred in law in not finding him guilty in the absence of proof to the contrary.
At the end of the day, all the magistrate had before him to rebut the Prosecution case which prima facie established the guilt of the accused was a mere unparticularised, uncorroborated, unsworn, untested assertion which, if true, would represent a gross breach of his fiduciary duty and itself raise the specter of corruption,” Prof Ndulo stated.
“The unsworn evidence made by Chiluba was not evidence in law and the court erred in relying on it to disprove the cogent evidence produced by the prosecution that 1) monies were taken by the accused from ZAMTROP, a government account, and 2) by law money in a government account is deemed to be government money.”
Labels: CHILUBA, CORRUPTION, COURTS, JONES CHINYAMA, MUNA NDULO
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Lusaka lawyer to subpoena Malila, Chinyama over Chiluba acquittal
By Laura Hamusute
Mon 09 Nov. 2009, 04:01 CAT
LUSAKA lawyer Kelvin Hang’andu has disclosed that he will subpoena as witnesses Attorney General Mumba Malila and Ndola High Court Deputy Registrar Jones Chinyama in a case where he sued government over the withdrawal of the appeal of former president Frederick Chiluba.
Hang’andu revealed in a list of petitioners’ witnesses to be subpoenaed he filed in the Lusaka High Court that he would subpoena Malila to testify on his involvement, if any, in withdrawing the Chiluba appeal and Chinyama to give his testimony regarding the duration taken to proofread the Chiluba theft case judgment.
He will also subpoena over the same matter the personal secretaries for Malila and Chinyama.
Hang’andu explained that he would also subpoena as a witness lawyer Mutembo Nchito so that he could give the court his personal knowledge regarding the circumstances of the Director of Public Prosecutions (DPP)’s withdrawal of the appeal and former Task Force Chairman Max Nkole to testify on the same issue.
He stated that he will also subpoena Post journalist George Chellah to testify on the circumstances of Nkole’s dismissal and Nkole’s directive to Nchito to prosecute the withdrawn appeal.
Hang’andu further disclosed that he will subpoena Muvi Television reporter Kennedy Phiri to give his personal knowledge on the DPP’s withdrawal of the Chiluba appeal.
In this case, Hang’andu has sued government through the Attorney General over the decision by the DPP Chalwe Mchenga to withdraw the notice of intention to appeal against the acquittal of Chiluba, describing it as an abuse of power.
He is seeking an order of certiorari for the purpose of quashing the DPP’s withdrawal of the notice of appeal and wants the court to declare that the withdrawal of the notice of intention to appeal by the DPP was ultra vires the proviso to Article 56 (7) of the Constitution of Zambia and lacked the sanction of the Attorney General.
On August 7, 2009, Chinyama, sitting as magistrate acquitted Chiluba of charges of theft by public servant involving about US$ 500,000.
Later, Nchito who represented The People in the matter, filed in the Lusaka High Court a notice of intention to appeal against the acquittal but Mchenga withdrew the matter from the court.
It is against this background that Hang’andu has dragged government to court.
But government, through Solicitor General Abuild Shonga, asked the court to dismiss the appeal on grounds that Hang’andu had no locus standi to file the petition and that there was no cause of action.
The matter comes up on November 13, 2009.
Labels: CHILUBA, COURTS, JONES CHINYAMA, MUMBA MALILA
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Chiluba’s acquittal is suspicious – Milupi
Written by Chibaula Silwamba
Monday, September 14, 2009 5:51:04 AM
FREDERICK Chiluba will only be acquitted and free if he goes through the whole appeal process, parliamentary Public Accounts Committee (PAC) chairperson Charles Milupi has said.
In an interview in Lusaka, Milupi said former president Chiluba's acquittal was very suspicious and it would be better for the former head of state to go through the whole appeal process and the judiciary is seen to be independent to prove his innocence. He said he found it illogical that the MMD government that took Chiluba to court for theft were the first ones to celebrate his acquittal.
“To me the issue of acquittal is neither here nor there because you can have the magistrate, his honour Jones Chinyama carry out the judgment but the reason why we allow for appeal is where someone erred, others higher than the one who has passed that judgment have an opportunity to look at the issue and come up with a different judgment,” said Milupi, who is independent member of parliament for Luena Constituency in Western Province.
“The process of the appeal, underpins the very essence of the judiciary and therefore when government has now said they are not going to appeal, it raises more suspicion. I think even for the former president himself, it would have been better for him to go through that appeal process, through all the various processes and be acquitted and then everybody would say, 'well now the judiciary has worked and what are you complaining about?”
He said the government had mishandled the Chiluba acquittal and controversy surrounding the appeal process.
“At the moment, where the appeal process has been curtailed even before it starts, where someone like the executive chairman of the Task Force [on Corruption Maxwell Nkole] who was mandated and they [government] have spent so much money on the Task Force to execute these cases, for just expressing his opinion that they want to appeal they are dismissed. I think that raises a number of questions. It raises more questions than answers. It hinges on our governance and the desire of Zambians is that we should have much accountable government in every aspect,” Milupi said.
“My position is that the legal system, the judiciary system which is a very important arm of our government must be independent and must be seen to be independent; independent of the legislature; independent of the executive.”
He said Chiluba's acquittal had shown signs that the Zambian judiciary might not have the level of independence that Zambians wanted to see it have.
“If you look at the arguments in the judgment, some of them even though we are lay people, you begin to see that it is incoherent. We want to go back to the situation where our judiciary is not only free and independent but must be seen to be free and independent,” Milupi said.
“In terms of the acquittal, let us remind ourselves that these matters of lifting of immunities, taking the former president to court were by the MMD government. They are the ones who set up the Task Force [on Corruption], they are the ones who have spent so much money chasing up these matters, now when you have the acquittals in the manner that we have had, it is surprising to some of us to see a situation where the MMD and the government, the ones who took the person to court are the ones celebrating.”
Milupi said the behaviour of the government and the MMD leadership was illogical.
“I take you to court either you have broken into my house or you have done something [wrong] to me and when the court acquits you, I am the one who celebrates, it doesn't make sense. We want a governance system that demonstrates that there is common sense,” said Milupi.
“So I think the government must come out very clearly and indicate what their stance is. I agree with the people who are saying that the government must give their position on the acquittal. For the judiciary to be seen to be free and independent, the due process of the law must be seen to the final conclusion.”
On August 17, 2009, Ndola High Court registrar Jones Chinyama, sitting as a magistrate in Lusaka, acquitted Chiluba on all counts of embezzling public funds amounting to US$500,000 but imprisoned his co-accused, Access Financial Services Limited (AFSL) former directors Faustin Kabwe and Aaron Chungu, for five years with hard labour.
Labels: CHARLES MILUPI, CHILUBA, JONES CHINYAMA
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Mchenga fails to see damn good grounds of appeal
Written by Editor
There is need for the nation to continue to reflect and meditate over Frederick Chiluba’s acquittal by magistrate Jones Chinyama. There is also need to deeply reflect over the manner in which the government of Rupiah Banda has handled the Chiluba case.
And here, it is important to analyse the reasons they have given for refusing the matter to be appealed and decided upon by the High Court. This should be looked at in light of how they were quick to accept and celebrate Chiluba’s acquittal even before the reading of the judgment was completed.
Last week, Chalwe Mchenga, the so-called Director of Public Prosecutions, out of desperation, gave some reasons why he collaborated in the decision to ensure that Chiluba goes scot-free. Mchenga said there was no good case for appeal because the grounds were not sustainable, were weak.
He went further to say the money that Chiluba is purported to have stolen was his own money that he had deposited in the government’s Zamtrop account. This is what Mchenga said in trying to justify his criminal decision not to appeal.
But let’s closely look at his claims. Can Mchenga really claim that there was no ground strong enough to sustain an appeal? Our answer is a categorical no. The grounds that the Task Force had put in that appeal are not frivolous; they are very solid. And moreover, Mchenga is not a judge to decide matters in his chambers. If this was his approach, which we don’t think is, there would be very few cases that would be going to court today because his own chambers is losing so many cases in our courts; their success rate cannot be said to be anywhere near 100 per cent.
And we have matters in court right now that Mchenga has sanctioned which even a layman can see that there is no case here; but nevertheless, Mchenga has sanctioned the prosecution of such hopeless cases. And examples of these are many. The truth is Mchenga is not being truthful over his decision to withdraw the appeal against Chiluba.
And Mchenga’s decision to withdraw that appeal has nothing to do with law, with the merits or demerits of the case. It has everything to do with the wishes of his political masters who tell him what to do. And we are not being malicious in saying so because this is the way Mchenga operates. He operated in this way with Chiluba over the Mactribuoy issue. And he prostituted himself in the same way with Levy Mwanawasa and George Kunda over the Kashiwa Bulaya case.
Today, Mchenga is doing the same thing over the Chiluba case with Rupiah and George. Clearly, this is not a matter of law; it is a matter of criminal dishonesty on the part of Mchenga who has surrendered constitutional responsibilities of the Director of Public Prosecutions to Rupiah and George. Today, these powers are being used to allow criminals who are their friends to go scot-free, to escape justice.
We are being brutally frank with Mchenga because he has pushed his luck too far. We did not go for him in this manner over the Bulaya case but now we feel the truth has to be known by all our people because Mchenga’s abuses are threatening everything this country has achieved over the last 44 years.
For Mchenga, pleasing George and, through George, Rupiah, is more important than fighting corruption. Mchenga has never refused to do anything no matter how wrong it is for George. Unlike Caroline Sokoni who sacrificed her job by refusing George’s evil and corrupt manipulations, Mchenga went on to sign a nolle prosequi for Bulaya – a thing Caroline had refused to do and as a result lost the opportunity to be confirmed as Director of Public Prosecutions.
Mchenga would rather betray the Zambian people than tell George that he is wrong. This is the person who is managing our public prosecutions. Mchenga is a pathetic person, a danger to our national security.
We shouldn’t forget the abuses that the office of Director of Public Prosecutions has been exposed to over the years. It is the likes of Mchenga who have been used to persecute innocent people whilst turning a blind eye to real crimes and criminals. Mchenga and his type have had the courage to stand in court and prosecute or persecute Chiluba’s political enemies just ‘to teach them a lesson’. We have already talked about Mactribuoy.
That unfortunate fellow who is now deceased was prosecuted for all sorts of things just to teach him a lesson that you don’t flirt with Chiluba’s wife and get away with it. Chiluba even changed the law and made theft of motor vehicle a non-bailable offence so that Mactribuoy could be kept in jail, all this because Chiluba suspected that Mactribuoy was having an affair with his then wife. Whilst Chiluba was doing this to Mactribouy, he had taken over Regina, who was Mwanza’s wife at the time.
There are many innocent people Mchenga and his type prosecuted on behalf of Chiluba. Princess Nakatindi Wina, the late Dean Mung’omba, Rajan Mahtani and indeed Dr Kenneth Kaunda suffered detention, humiliation and physical and psychological torture because Mchenga and his friends could not tell Chiluba that there was no case against these people. And yet today Mchenga is telling us that he stopped the appeal of the Chiluba case because it was weak. When did Mchenga become this professional in his dealings?
If we had not looked at the appeal ourselves and did not have the opportunity to follow the evidence the way we have, maybe Mchenga could have cheated us. Even with the rudimental law that we have learnt from the law school and through ZIALE, Mchenga is not making sense; Mchenga is simply trying to cheat using the law. As it is said, you can fool some people sometimes, but you cannot fool all the people all the time. We have taken time to look at the grounds of appeal.
It is not possible for any honest lawyer to say they lack merit. What lacks merit is Mchenga’s decision to withdraw that appeal. We know that for Mchenga and his political masters, the appeal lacked political merit because it was going to undo what they have obtained by the dint of deceit. If they were very clear that there is no case for appeal, they would have been the first ones to push for an appeal so that the case is permanently rested and their names are cleared of collusion in Chiluba’s acquittal.
But they know very well that given an honest judge, the High Court would reverse Chiluba’s acquittal. And this is something they can’t take a risk on. That is the only reason that they stopped the appeal. We say this because that appeal wasn’t going to take long in court – it was going to be cleared in one or two sittings. Let’s now turn our attention to the seven grounds of appeal that were put up by the Task Force.
In the first ground, the Task Force argued that it was wrong in law for Chinyama to fail to convict Chiluba having found as a matter of fact that money from the Ministry of Finance was used for Chiluba’s personal and unlawful benefit. After having found this as a matter of fact, Chinyama clearly failed to apply the law and accordingly convict Chiluba. What is weak about this ground?
In the second ground, the Task Force argued that even if Chinyama’s argument that there was some other money in the Zamtrop account which could have been Chiluba’s money, according to him, were accepted, where did this other money come from? Did Chiluba explain the sources of this money? Was Chinyama satisfied that this money was not a product of crime? Chiluba never testified under oath to be cross-examined. But how then did Chinyama resolve this issue?
In the case of Faustin Kabwe and Aaron Chungu, he convicted them for failing to explain the sources of monies they were playing with. Why was Chiluba different? Chiluba, like Faustin and Aaron, having failed to explain the sources of the monies he was using, should have been convicted under Section 188 of the Criminal Procedure Code. This is the law we learnt from law school and ZIALE, not the law Chinyama is applying. Having failed to apply and contradicted himself within the same judgment, the state has a good basis for appealing Chiluba’s acquittal. Even on this ground alone, an appeal could be sustained.
On the third ground, the Task Force argued something that makes a lot of sense even in simple logic. They were saying that Chinyama was wrong in law when he claimed that he was not convinced that Chiluba did not have private monies in a government account. How can a court of law say that a person can have private monies in a government account when Section 7 of the then applicable law the finance, control and management Act, clearly stipulates that monies deposited in a government account are government monies? If Chiluba had kept his private monies in such an account, he would be required to account for it, to show receipts, which he did not; or even proof of any previous attempt to claim that money from the state.
For seven months after leaving State House, Chiluba never claimed any money from the Zamtrop account as personal money. How then can Chinyama say that he was not convinced Chiluba did not have private monies in a government account whilst convicting his accomplices? Such duplicity demonstrates serious defects in Chinyama’s acquittal of Chiluba, opening solid basis for an appeal. This same Chinyama, according to the grounds of appeal, had demanded that there was need for clearer evidence of the sources of the alleged private monies when he found Chiluba with a case to answer. Suddenly, he doesn’t need clearer evidence for Chiluba. All it took was an unsworn claim by Chiluba who refused to be cross-examined.
In the fourth ground of appeal, the Task Force argued that it was wrong for Chinyama to suggest that reimbursement of stolen monies is a defence to a charge of theft. The law we learnt tells us that Chinyama was wrong when he decided in that way. Claiming that after someone took government money, depositing private funds is a defence is simply wrong in law. Again, this is a good ground of appeal for an honest lawyer. It’s only dishonest lawyers like Mchenga who can’t see the merits of this ground.
In ground five, the Task Force aptly argued that Chinyama was wrong in law when he decided that an unsworn statement can be relied upon where there is no evidence contradicting it when the law on unsworn statements is that such a statement is not evidence and cannot by itself prove any fact. This is such a legally significant ground of appeal that it is difficult to imagine that an honest lawyer, one occupying such a high office like the Director of Public Prosecutions can ignore. Anyway, it is understandable that corruption and dishonesty make even wise men blind to the truth and prevent them from being honest in their dealings.
Chiluba, knowing that he had a lot to explain, chose to give an unsworn statement which he used to make political pronouncements. He did not address the charges against him and yet Chinyama chose to accept his claims that he had private money in a government account. The law we know and the procedure we learnt from ZIALE tells us that Chinyama had no basis in law for accepting Chiluba’s evidence in the way he did. Even if he could have accepted that nonsense, Chiluba was required to explain the source of that money in terms of Section 188 of the Criminal Procedure Code. He did not. Chinyama should have convicted him and yet he acquitted him. And now we have Mchenga saying there are no good grounds of appeal. What nonsense! What dishonesty is this? What lie is this?
Ground six is so easy to understand that as we have said before, it is only dishonesty that keeps Mchenga from accepting it as a good ground. In this ground, the Task Force argued that Chinyama was wrong in law when he failed to find as a fact that private money can never be kept in a government account and where this purportedly happens, such money becomes government money anyway. This is what Section 7 of the finance, control and management Act provided at that time. Why did Chinyama have a problem with this clear provision of law? Why is he being joined by Mchenga in this blindness, or is it blindness? Even a person on the street will tell you that no honest person will go and keep their money in a government account. But when Chinyama and Mchenga accept such nonsense, then we know there is something seriously wrong somewhere.
In ground seven, the Task Force argued that Chinyama is not entitled to interpret the Constitution. When he did that and found that Chiluba was not a public servant, he clearly exceeded his jurisdiction as a magistrate because this is a matter for the High Court and the Supreme Court to decide. Is it possible that Mchenga does not know this? The answer is very simple: he knows but he has chosen to become Chiluba’s defence counsel in aid of his political benefactors.
These are damn good grounds of appeal which no honest Director of Public Prosecutions can dismiss the way Mchenga has done. Only a hired mercenary Director of Public Prosecutions can say the nonsense Mchenga is saying about these grounds of appeal. Again, we say Chiluba has not been cleared by the law, he has been acquitted and protected from going to jail by a collusion of Rupiah and the likes of Mchenga. Anyway, they can have their day but another time will come when they will have to account for all these criminal acts of theirs.
Labels: CHALWE MCHENGA, DPP, JONES CHINYAMA
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Anger is growing
Written by Editor
There is anger in this country over magistrate Jones Chinyama’s decision to acquit Frederick Chiluba in what they see as the most questionable circumstances. But strangely, that anger is mixed with despair, a feeling that their Judiciary is rotten and the whole state machinery is gone.
And that feeling seems to be deepening. We disagree with it. There is no need to despair. There are problems in our Judiciary but it is not totally rotten. The quality of work is poor in many respects and some of the decisions are unquestionably suspect.
We also believe that despair, anger and confusion are not the best ways to respond to this. If we give the impression that just because we are angry, then Rupiah Banda’s walls of Jericho will fall down, he is not going to treat us very seriously at all – and we won’t deserve to be treated very seriously.
What is needed is a rational response to all these clearly corrupt schemes. We need to know how to fight back because people like Rupiah will only respect those who know how to fight back when wrong has been committed against them.
There are many things the Zambian people can do to make their institutions responsive. In a democracy, there is no alternative to protest. And protest takes many forms. When people keep quiet, no amount of anger from them will change anything. They must begin to show their unhappiness in rational ways. It is their right.
Although we say our people should not despair, this feeling is not entirely negative. It is a sign of progress. At least it shows that our people are moved with indignation every time a wrong is done. The public has taken a clear stance against corruption. It is not going to be condoned.
It does not matter who is behind it. This is what the anger people are feeling about Chiluba’s acquittal demonstrates. We do not believe our people are hateful. On the contrary, our people are tolerant, loving and accommodating. The anger they have at Chiluba’s acquittal has nothing to do with hatred, it has to do with injustice and justice.
Our political culture has developed to a level where many of our people are rightfully demanding accountability from their leaders. They elected Chiluba in their masses but he betrayed them. Instead of improving the lot of our people, Chiluba determined to retire rich at their expense. He was not going to retire like poor Dr Kenneth Kaunda who was going to depend on the people he had served for 27 years to look after him. Chiluba decided he was going to make his own pension in addition to what the people were going to give him.
This is what disappoints our people, this is what is generating the anger, this is what annoys them. The president of this country commands a lot of power. His actions or inactions could mean life or death for a lot of people. This is the kind of power that the president wields in trust for the people. When a president turns rogue as Chiluba did, his misdeeds are not private mistakes but public wrongs which demand public accountability.
It is only in countries like ours where a president can publicly admit receiving bribes and keeping them in a government account for his personal use and get away with it. In a normal country, such a president would not even dare open his mouth. But today, we hear Rupiah saying Chiluba is entitled to fight for his immunity. If Chiluba can break the law and be supported by the government, why do we have prisons?
Why should someone who steals a bag of mealie-meal to assuage hunger be sent to jail for many years and yet somebody like Chiluba is free to steal from the people? Anyway, this can only come from a person like Rupiah. We have not forgotten what he said in Kabwe on Monday before even Chiluba’s judgment was completed. Rupiah said today it is Chiluba, tomorrow it can be me or you. If one has stolen, yes they should be treated in that manner. The best way to avoid that is not to steal; it can’t be by immunities from justice, by questionable acquittals that mask corruption in every pore.
And they should never be absolute immunity accorded to anyone. The immunity provided to a president in our Constitution is not absolute and that is why it was possible in the end to have Chiluba prosecuted for stealing public funds. Going the line Rupiah is advocating, a line of absolute immunity, would be incompatible with the rule of law; the very essence of the rule of law is that no one is above the law. As a result, the immunity we give to our president is limited to the minimum level required in the performance of official duties. If this was the opposite, it would mean that a person who becomes president would be bound by no law, he could steal and abuse public resources and office as he wishes.
It is unfortunate that the person who has sworn to defend the law of the land is at the forefront of championing its violation. It is quite clear from Rupiah’s utterances that he does not think Chiluba should be held accountable for the wrongs that he has done. The question is why? Why is Rupiah jittery about the office of president being held to account? Is he doing things he shouldn’t do? A decent and honest man need not fear the law. Instead, he should embrace it. This is the behaviour we expect from Rupiah.
It seems Rupiah is a throwback to a bygone era where presidents were equivalent to absolute monarchs who were above the people and the law. This is the impression Rupiah gives. He is not a servant; he is not a leader, he is a ruler. To him, presidency is synonymous with absolute control and absolute immunity to the exclusion of any accountability.
This is why Rupiah never accepts any public criticism. Even when people tell him that something is wrong, he has to defend it. We have seen this on the Zamtel privatisation where his government is ready to break the law. This is similar to the way Chiluba used to behave. Chiluba was insular to criticism. Look where it has ended him! Instead of defending Chiluba’s misdeeds, Rupiah must make sure that his own conduct while in office is above board. If he works in the interest of the people on every issue that comes to his desk, he will have nothing to fear. Rupiah will have no need to defend thieves and scoundrels since as he said ‘it could be me or you tomorrow’.
What Chiluba has done can never be covered by any amount of propaganda. Our people demand accountability. This is one of Rupiah’s responsibilities to ensure that there is accountability in government and in the management of public affairs. But the confusion that is emanating from Rupiah should not surprise us. This man is consistent in his wrongdoing. He does not seem to care about anything that matters to the people. To him, it is the question of ‘me, myself and I and also my children’. That is what matters to him. Anyway, Chinyama has told us that a president of this country is not a public servant, so Rupiah can do as he pleases, he can take whatever he wants as long as he keeps it in a government account, it’s okay! What nonsense is this? This can only happen in Zambia. Clearly, Chinyama’s acquittal of Chiluba has brought shame not only on our judiciary but on our whole country. People are not only making jokes about our judiciary, they are also joking about us as a nation, as a people.
Rupiah does not seem to realise that as president, there is a lot on his shoulders. He is supposed to represent the aspirations and hopes of our people. And yet he represents despair and hopelessness. At one point, we thought that our country was in auto pilot. Although this is a fearful thing, at least auto pilot directs you somewhere. We are now realising that our country is not on auto pilot, it is in free fall and Rupiah, the captain, is dozing. This is disaster indeed. It can lead to a disastrous crash. We are not saying this just for the sake of criticising Rupiah. The evidence is all around us. What has Rupiah been doing when the economy has nose-dived? It seems to him, this is not part of his job. He has no duty to ensure that the economy is running well. If a president can ignore the economy except to the extent that he has some specific deals that he is pushing, what hope is there for our people? This is why to him, getting justice for our people is nothing. Chiluba can steal and keep the loot. Rupiah is not bothered. Shame on him!
Labels: CHILUBA, JONES CHINYAMA
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The meaning of Chiluba’s acquittal
Written by Editor
There are many questions being asked about the acquittal of Frederick Chiluba by magistrate Jones Chinyama yesterday. People are asking what the Chiluba acquittal means. What does it mean? Put simply, it means Chiluba won’t have to go to jail. But of course beyond this, there can be a number of interpretations.
To Chiluba, this means he is not only a free man who doesn’t have to go to jail; to him, it means he is a clean man who didn’t steal anything from the Zambian people, and to borrow from Rupiah Banda’s vocabulary, he is a damn honest man. But the issue doesn’t end with Chiluba’s interpretation no matter how much he will try to push this line.
These criminal proceedings that yesterday ended with Chiluba being acquitted and his co-accused being sentenced to three years imprisonment are just part of the story. There is still a London High Court judgment in the hands of Rupiah’s government. And Rupiah’s government has taken this judgment to the High Court of Zambia to be registered so that it can be enforced against Chiluba.
This means that once this judgment is registered, Rupiah’s government will move against Chiluba and recover back to the people what he had stolen from them. For some reasons, the registration of this judgment has dragged for a very long period through various court processes.
Rupiah’s government’s attempt to register the London High Court judgment against Chiluba raises a lot of questions. In one breadth, Rupiah is saying Chiluba is an innocent man, a damn good president who has not stolen anything from the Zambian people, a clean man and so on and so forth. In another, Rupiah’s government is in the courts armed with the London judgment trying to recover from Chiluba what they believe he had stolen from the Zambian people. These are two diametrically opposite and irreconcilable positions. You can’t be wrong and be right at the same time; you can’t be a thief and be an innocent person, a clean man at the same time. You can only be one thing: either clean or not clean.
In the light of Rupiah’s pronouncements, it will be very interesting to see how his Attorney General will proceed in the High Court trying to register and enforce the London High Court judgment against Chiluba. This matter is already in the High Court. Are they going to connive and stop the Attorney General from registering and enforcing that judgment? Is the High Court going to be assisted to refuse to register that judgment to suit Rupiah’s position on Chiluba? If this happens, what will it mean?
There are many questions that are being asked about Chiluba’s acquittal. Many people are asking: what is the difference between the London High Court judgment and yesterday’s Lusaka Magistrate’s Court acquittal of Chiluba? Put simply, this is a question about the difference between a civil judgment, that is the London High Court judgment obtained by the Zambian government against Chiluba and yesterday’s criminal acquittal of Chiluba by the Lusaka Magistrate’s Court.
There are many examples where a person has been acquitted by a criminal court but found wanting on the same issue by a civil court. The classical example of this is that of former United States football hero Orenthal James Simpson, popularly known as O.J Simpson. O.J Simpson was found not guilty as judged by the criminal court in the murder of his wife and her friend. Yet a civil court held him accountable. So, how is the civil court’s determination different from the criminal? And so is O.J still not guilty of murder?
Clearly, our people are not alone in being confused about how a person acquitted of murder in a criminal trial can be held liable for a victim’s wrongful death in a civil trial.
The first step to understand this seeming contradiction is to know that a criminal prosecution involves different laws, a different court system, and different burdens of proof. And to convict in the criminal court, the case against the defendant must be proven beyond a reasonable doubt.
In a civil case for wrongful death, on the other hand, you have to show only that the defendant was legally responsible for the death. But, to get damages, as the plaintiffs did in the O.J case, you have to show that the defendant acted recklessly. The burden of proof in a civil case is preponderance of the evidence – a much lesser burden than is required in a criminal case.
So, while a criminal court might reasonably fail to find guilty beyond a reasonable doubt and acquit the accused, a civil court might also reasonably find by a preponderance of the evidence that he acted recklessly and should be held civilly accountable. Is O.J Simpson a murderer, a criminal? A civil court found it more likely than not that he caused the death of his wife and her friend. A criminal court was unable to find beyond a reasonable doubt that O.J committed murder. Seen this way, there is no contradiction.
This is the way to look at the acquittal of Chiluba in the Magistrate’s Court yesterday and the finding of the High Court in London against Chiluba. Again, seen in this way, there is no contradiction between the London High Court judgment against Chiluba and his acquittal by the Magistrate’s Court yesterday. From a legal point of view, the issue doesn’t require any disquisition; it’s a straightforward issue. But there are problems on the political front created by the political leadership of this country.
Throughout Chiluba’s trial in the Magistrate’s Court, Rupiah, as head of state, stood on the side of the accused and not on the side of the state. It is the state that took Chiluba to court both in London and in our own courts here. And the head of that state is Rupiah. Clearly, what this means is that at some point, the state seemed to have abandoned its own case against Chiluba and was just short of asking for the discontinuance of the case because it might have been politically sensitive to take that route. It will not be far-fetched for anyone to come to that conclusion given what the head of state, on whose behalf these matters were being prosecuted, had been saying about the accused and indeed his own personal interaction with the accused.
And given Rupiah’s defence of and support for Chiluba in the criminal proceedings in which he has been acquitted, it will be very difficult to see how this same Rupiah will continue his case against Chiluba in the High Court to have the London judgment registered and enforced. Can Rupiah’s government today tell the Zambian people that they will be happy to have the London judgment registered in our High Court and enforced against Chiluba? Can they really be trusted to champion this matter?
Are we going to be surprised if tomorrow we were to wake up to be told that the Attorney General has discontinued the matter to register and enforce the London judgment against Chiluba? How can people who are today celebrating Chiluba’s acquittal be trusted and tasked to champion the registration and enforcement of the London High Court judgment against Chiluba? There is definitely a serious problem here!
As for Chiluba’s utterances against those who called him a thief now that he is acquitted, we leave it to his lawyers to advise him in an honest manner. We called him a thief. We challenge him to take legal action against us if he thinks that acquittal has cleared him from being called a thief. Let’s meet in court since he respects court decisions. We know that his friends are in power and things may be more favourable to him everywhere but we are still ready to meet him in court even under unfavourable conditions.
Chiluba is a thief who should pay back what he stole from the Zambian people as found by the London High Court judgment and other evidence that is there besides that. Not going to jail does not make Chiluba a clean person. There is no question, Chiluba ran a corrupt regime that can only be praised and defended by equally corrupt elements.
Anyway, for all that, we should not forget to honour the noble efforts of Levy Mwanawasa on this score. Without Levy’s courage, the corruption of Chiluba’s regime wouldn’t have been known by our people. Today they can try to launder themselves but the Zambian people know who they truly are – they are nothing but devils, evil men, corrupt elements trying to wear sheep’s skin.
Labels: CHILUBA, CORRUPTION, COURTS, JONES CHINYAMA
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