Nkole wants abuse of office offence back
By Kombe Chimpinde
Sun 08 Jan. 2012, 14:00 CAT
MAXWELL Nkole says the abuse of office clause would have caught up with the Rupiah Banda regime had it not been removed.
In an interview, Nkole who is home affairs permanent secretary and former chairman of the dissolved Task Force on Corruption, said
the current investigations on the plunder of resources under Banda were slow but careful because of the nature of corruption that took place and the removal of the abuse of office clause.
"It is no wonder the previous regime decided to repeal it because they knew that it would catch up with them if it remained on the statute," he said.
Nkole said there was need to re-instate the abuse of office clause abolished in Banda's regime in order to successfully prosecute the corruption they perpetrated.
He said the on-going investigations had adversely been affected following the repeal of the Anti Corruption (ACC) Act which saw the abolishment of Section 37.
"They (investigative wings) are proceeding slowly but carefully because of the nature of corruption cases. It should be understood, however, that investigations and strategies have been affected adversely following the repeal of the Anti Corruption Act," he said.
Nkole said the absence of Section 37 had a negative impact on the capacity to bring some of the cases to courts of law.
"I can say the earlier Parliament sits down to install that provision, the better. That particular provision was so appropriate an instrument of the law that not only made it easier to prosecute these cases but also to create a deterrent atmosphere on the commission of offence," he said.
"I strongly feel that provision must be re-instated quickly so that most of these cases of wrongdoing and abuses that investigators are working on can be processed."
Nkole assured that once installed through Parliament, it would still be used to prosecute cases committed within the period between the time it was removed and the time when it is restored.
"There is nothing like rigidity of the law where the law is like this and will remain that way. Laws change with political administration. The removal of the abuse of office clause mid way for three years will not make the crimes committed during the time it was removed lawful. They will still be prosecuted," he said.
"The argument in the courts of law is that the (clause) was removed in order (for MMD government) to hide their own criminality and we shall argue that and the courts of law will find that there was no reason for removing that law. That in itself is a wrong and attracts punishment. You cannot go on rampage of abusing office only because you think you have taken the law that prohibited it and think you will get away with it. The stupidity of law is that it will still catch up with you because you were not doing it with utmost good intention."
And Nkole said that the investigations in some cases may be dragging before the public start seeing results due to limitations in its operations.
"Some of these investigations are taking investigators to places outside Zambia and it is the same complication of having to work in foreign jurisdiction before we can get evidence that takes time. It is possible that when you delay, evidence may be dealt with. This was the result with the (Frederick Chiluba's) London cases last time, because there was a scheme there to destroy documentary cases lying in London. This time around we know are very cautious," he said.
Nkole also called for donor assistance in the area of fighting corruption.
"The support exhibited by cooperating partners on the fight against corruption should be revisited. They (donors) should consider assisting this government one more time," he said.
"Investigations are generally expensive all around the world. You cannot place monetary value to the good prosecutions can yield."
In 2010, former Attorney General Abyud Shonga argued that the government proposed to remove the abuse of office offence from the Anti Corruption Commission (ACC) Act because it had existed unconstitutionally.
Appearing before the Parliamentary Committee on Legal Affairs, Governance, Human Rights and Gender Matters in 2010, Shonga contended that the law worked better under a one party state where leaders were not allowed to own businesses.
He argued that under multipartyism, it would not be fair to maintain such a law because public officers were allowed to own and run businesses.
When asked by committee chairperson Jack Mwiimbu if he was of the view that the abuse of office offence has existed unconstitutionally, Shonga answered in the affirmative.
"I prefer not to get boxed in like that, but my answer that it is unconstitutional when you look at it vis-a-vis the Constitution. I can't come to a conclusion, any conclusion, except to agree that this provision may actually be unconstitutional.
"As to whether that is the main reason for removing it, it's safer to say it's one of the reasons for removal, albeit a major reason for removal. This provision was logical in the context of socialism and the one party state but has since become redundant since the advent of the liberalisation of the economy," said Shonga.
Shonga claimed that the government's intention of removing section 37 from the ACC Act was in good faith. When told that the Law Association of Zambia in its submission concluded by saying that it would be dangerous to remove the abuse of office offence from the laws, Shonga disagreed strongly.
"Oh, that is what LAZ is saying? I must with greatest respect disagree with their conclusion. That is my comment, especially that section 99, I think, of the Penal Code crystalises the offence created in 37 (1). It's there, it's preserved on our statutes," he argued.
And former Director of Public Prosecutions (DPP) Chalwe Mchenga supported the removal of the offence from the Anti Corruption bill, saying it did not promote justice in its current form.
Mchenga, who indicated that he could only provide his opinion rather than the rationale for removing the offence, submitted that the country's poor record system made it difficult for accused person to provide relevant evidence before the court under the provisions of section 37.
On 14 October 2010, Parliament passed the Anti Corruption bill that sought to remove the offence of abuse of office from the 1996 ACC Act.
Then vice-president George Kunda attacked LAZ for submitting against the removal of the offence.
The House went for a division with 54 voting in favour of the bill while 30 voted against and 3 abstained.
And after then deputy speaker Mutale Nalumango officially announced the results, most MMD members celebrated their victory.
Labels: ACC, MAXWELL NKOLE
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Rupiah shouldn’t be given a second term - Chitala
By Patson Chilemba
Thu 23 June 2011, 08:01 CAT
RUPIAH Banda should not be given a second term of office because the abuse of the judiciary will intensify, says Dr Mbita Chitala.
Commenting on the angry reaction from State House to former Task Force on Corruption chairperson Maxwell Nkole’s observation that senior chief Puta’s assertion that President Banda promised to terminate Chiengi member of parliament Katele Kalumba’s corruption cases confirmed there was political interference in the dispensation of justice, Dr Chitala, who is Zambia’s former ambassador to Libya, said Nkole’s observation was a very serious indictment on how the judiciary had been abused in the country.
He said Nkole was a long-serving public servant who knew what he was talking about.
Dr Chitala warned against continuing with President Banda after this year’s general elections.
“And the country should take cognizance of the comments of this honourable person who selflessly served our country with excellence; and that the judiciary in this matter has been compromised and continues to be compromised by the executive. For as long as this continues, there can never be justice in our country or fair play in any way,” Dr Chitala said.
“It will even be worse if Mr Banda is allowed to continue for a second term. This alone shows that there must be change. We need to place in government a new team of citizens who will truly provide for rule of law, justice and fair play in judicial matters.”
Dr Chitala said anyone who tried to compromise the judiciary was committing a felony for which they should be prosecuted.
He said the events from Chiengi should be investigated and truth be known so that the nation could “clean up this abuse which has now become a culture in our country”.
On the statement by Special Assistant to the President for Press and Public Relations Dickson Jere that Nkole was a bitter and frustrated man who tends to blame his failure to run the disbanded Task Force on others, Dr Chitala defended Nkole saying the statement was unfair and ungrateful to the man who did everything to serve his country.
He said Nkole had a wonderful job with the United Nations Development Programme (UNDP) in Kigali, Rwanda but chose to stop in order to help Zambia prosecute plunder cases.
“He made sacrifices and the job was very dangerous because he was prosecuting very high people who had their own power. And the trouble with the current regime is that they don’t know how to say thank you. They are very happy to use you but they are born ingraciate. They never know how to say thank you,” Dr Chitala said.
“In the end, it’s them who frustrated him and were able to ensure that the cases he was prosecuting have all been abandoned and back to corruption. So it is them who must be condemned. He was a patriot.”
On Jere’s statement that the President does not appeal acquittal cases to higher courts because the Republican Constitution empowered the Director of Public Prosecutions based on his legal opinion, contrary to the pronouncement President Banda made during a public meeting that he stopped the acquittal into late Frederick Chiluba’s acquittal, Dr Chitala responded:
“Well you should read between the lines what that means if a head of state comments on things like that. It means he has been involved. It’s an admission of involvement and it’s abuse of the process.”
The MMD in Chiengi has resolved not to receive applications from those wishing to stand as MPs until Kalumba is “freed from his corruption cases”.
The party structures in the area have also resolved not to conduct interviews for those wishing to stand as councillors.
The MMD in Chiengi wondered why Kalumba had not been set free as promised by President Banda, who they said had freed the likes of late Chiluba, former intelligence chief Xavier Chungu and education minister Dora Siliya from their court cases.
Commenting on the refusal by the MMD in Chiengi to adopt parliamentary and local government aspirants until President Banda fulfilled his promise he made to them to free area Kalumba, Nkole wondered why the President and those in government had failed to respond to the damning allegations against them.
But reacting to Nkole's statement, Jere described as baseless assertions by Nkole that President Banda interfered with the delivery of justice.
Labels: MAXWELL NKOLE, MBITA CHITALA, RUPIAH BANDA
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Rupiah interferes with delivery of justice - Nkole
By Patson Chilemba
Tue 21 June 2011, 04:00 CAT
SENIOR Chief Puta’s assertion that President Rupiah Banda promised to terminate Katele Kalumba’s corruption cases confirms there is political interference in the dispensation of justice, says Maxwell Nkole.
Commenting on the refusal by the MMD in Chiengi to adopt parliamentary and local government aspirants until President Banda fulfils his promise he made to them to free area member of parliament Kalumba, Nkole, who is former Task Force on Corruption chairperson, wondered why the President and those in government had failed to respond to the damning allegations against them.
“I think the issues raised by chief Puta to say that he was promised that Dr Kalumba’s cases will be politically terminated just confirms that there has been interference in the way justice has been administered, because the statement from chief Puta and the people of Chiengi has remained unchallenged, meaning that it confirms that it should be true,” he said.
Nkole said that was why the nation demanded that late president Frederick Chiluba’s acquittal should have been appealed against because people suspected that there was political interference in the judgment.
He said the revelation from the people of Chiengi was testimony to the fact that there was political interference in some court cases.
“Literally, they are saying that the President promised to terminate Kalumba’s case in the same manner he had done with Chiluba’s case. And this is what we have said that political interference in the dispensation of justice should be avoided,” Nkole said.
He said it was apparent that there was selective justice where those who were in good standing with those in government received advantages to go scot-free as opposed to the ordinary citizens.
Nkole said the independence of the courts was limited, saying that was why there should have been an amendment to the Republican Constitution to provide for more independence to the courts.
“The Constitution required to be amended in order to limit powers of the DPP Director of Public Prosecutions, because those powers of the DPP are not absolute. He has got constitutional powers but there has to be limitations because leaving the DPP with powers which say he has got absolute powers I think was not the intention of the legislature,” Nkole said.
“Where you have a DPP maybe who is easily influenced by political powers then that actually dilutes the whole essence of his independence.”
On Chiluba’s death, Nkole said it was sad to have lost two presidents under just three years.
Nkole said it was wrong for MMD cadres to bar people from attending the late president’s funeral.
He said it would be better to give Chiluba a honourable farewell.
Nkole said there was nothing personal in the prosecution of Chiluba over corruption cases, saying the same MMD-dominated Parliament lifted his immunity which opened the way for his investigations.
The MMD in Chiengi has resolved not to receive applications from those wishing to stand as members of parliament until Kalumba is ‘freed from his corruption cases’.
The party structures in the area have also resolved not to conduct interviews for those wishing to stand as councillors.
The MMD in Chiengi wondered why Kalumba had not been set free as promised by President Banda, who they say had freed the likes of late Chiluba, former intelligence chief Xavier Chungu and education minister Dora Siliya from their court cases.
Labels: CHIEF PUTA, CORRUPTION, KATELE KALUMBA, MAXWELL NKOLE, RUPIAH BANDA
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Zambia needs new political dispensation - Nkole
By Patson Chilemba
Fri 13 May 2011, 04:01 CAT
THE due process of the law will continue to be interfered with if the same political group remains in office after this year’s general elections, says Maxwell Nkole. Nkole, who is former Task Force on Corruption chairperson, said it would be difficult to have a new way of doing things under the current regime.
“I think we will continue on the same old platform and the due process of the law will continue to be interfered with, unfortunately. And that is up to the Zambian people to decide if this is what they want to see continuing. This is a year of elections, you never know where the country is going to go to,” Nkole said.
“But I know that the law normally is changed by the political system obtaining at the time, and should that change come this year, then I am sure that these issues will be looked at totally differently.”
Nkole said there was need for a new political dispensation to address issues like realising people’s demands for Director of Public Prosecutions (DPP) Chalwe Mchenga to go for allowing the Executive to usurp his powers.
He said whatever the Law Association of Zambia (LAZ) would try to do to remove Mchenga, even constitutionally, would face opposition from the government as he owed his continued stay in office to the current administration.
“So LAZ would have a mammoth task to try to issue any kind of mandate for the replacement of the DPP.
But it is an issue which amongst the legal fraternity, legal profession they are supposed to reflect on as to the independence of the DPP’s office, and also of the performance of the individual who is actually holding office,” Nkole said.
“That is within their competence as LAZ. They can come up with a position if they concur with the previous LAZ executive. If they have to add any more momentum and guidance, they should be at liberty to do so as well.”
Nkole said a new government after the elections would create an environment where the new LAZ could work, given the political direction the country would take.
“So in a way all those cases that have been withdrawn or suspended can only be revisited, I think, with a new political dispensation, not in the current system. So those are not dead issues. They are still alive I think in the minds of most Zambians,” said Nkole.
“And you can’t go beyond where we have gone, apart from stating very categorically that justice has been suffocated midway.”
Nkole said if another political group came into office they would look at issues differently, and then the new LAZ would have an environment within which they could interpret the law effectively.
Labels: CHALWE MCHENGA, MAXWELL NKOLE, SEPARATION OF POWERS
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Corruption fight must top campaign agenda - Nkole
By Patson Chilemba
Tue 26 Apr. 2011, 04:01 CAT
THE fight against corruption should be high on the campaign agenda during this year’s general election, says Max Nkole.
And Nkole said institutions responsible for conducting elections should re-examine themselves and see how they can contribute to the holding of a fair and just election, saying he sees nothing wrong with PVT.
In an interview, Nkole, who is former Task Force on Corruption chairperson, said Zambians should choose what type of society they want to live in. He said people would make their own independent opinion on how President Banda was handling the issue of corruption based on what they were seeing.
“I think that with reference to some of the cases that we have seen taken before the courts of law where justice has been terminated midway, I think that doesn’t show a good intention on the part of government,” Nkole said.
“I think the rule of law must be allowed to take its full course, and that is where maybe people have given blame to President Banda’s government to say that they have interfered in the due process of the law.”
Nkole said the tenets of natural law demanded that the legal process should be exhausted instead of frustrating it midway. He said the fight against corruption was a matter of governance because people were looking for a government that would protect the freedom of the law.
Nkole said abuse of resources and power could all be classified as corrupt activities, saying those issues were fundamental and critical to the overall opinion as to what sort of government the people wanted.
“So the issue of corruption is actually suppose to be very high on the agenda,” he said
On assertions that people who are believed to have stolen public funds had regrouped around President Rupiah Banda, Nkole said corruption cases were taken to the courts of law and one would expect that the law should take its course. He said it was unfair and a great disservice to the country when corruption cases were not acted upon.
“You are sending a message to the people that corruption pays. Corruption does not pay; it depletes the resources meant for the development of the country. So the citizenry want to see corrupt cases being acted upon most efficiently and fairly,” Nkole said.
“I think the Zambian people should have in mind what sort of society they want to have, what sort of government they want to have. Do they want to have a government that tolerates corruption? Or do they want to see a government that fights corruption in totality.”
Nkole said the law on corruption in the Zambia required an overhaul because it did not cater for various aspects of the corruption activities the country was witnessing.
He said the United Nations (UN) Convention against corruption gave guidelines on how to domestic law should apply in cases of corruption, but the government had failed to come up with an effective programme to domesticate the law.
Nkole said it did not reflect good governance if resources were being abused in huge quantities and development intended for the people was not reaching them.
He said corruption in Zambia was a white collar crime because it was the people who held public office and supposed to be dispensing services that benefited.
“I would therefore pass judgment that corruption in Zambia is at a very high level, except that most cases, including very high level cases of political corruption, never come to light,” Nkole said.
And Nkole said there was still time to prepare the ground to ensure that elections were more peaceful than what had been witnessed during the recent by-elections in Mufumbwe and Chilanga.
He said the Electoral Commission of Zambia (ECZ) still had time to implore government to allow parallel vote tabulation (PVT). Nkole said PVT was a methodology used to verify poll results at polling stations immediately after the counting was finished, adding that there would be no cost on the part of government and ECZ.
He said PVT allowed electoral officers and law enforcement officers to resolve matters of dispute on the spot. Nkole said PVT had been allowed around the world to ensure electoral disputes were avoided. He said he did not see the reason why PVT should not be allowed.
“I am just saying that as the country prepares for the elections I think that institutions that are responsible in ensuring transparent and smooth elections should re-examine their houses and see what they can do to contribute to a fair and just election which is forthcoming,” said Nkole.
Labels: CORRUPTION, MAXWELL NKOLE
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Should we abolish criminal law?
By The Post
Sun 21 Nov. 2010, 04:00 CAT
Rupiah Banda and his minions should not complain when our people believe that the removal of the offence of abuse of office from the Anti Corruption Commission Act has been done to protect criminals in government who know that sooner or later, they will have to account for their misdeeds, particularly the plunder of national resources.
We agree with Maxwell Nkole, the former chairman of the Task Force on Corruption, when he says that the removal of the abuse of office clause is a calculated move by the government to shield selected individuals who are suspected to have abused their offices.
This is because we have looked very hard and tried to find a logical explanation, that stands up to the scrutiny of the principles of integrity and good governance, for the government‘s behaviour in relation to Section 37.
We can find none. We have listened to them trying to justify their actions and tried to accept their arguments for what they are and yet, still, we find no logic in their behaviour.
There is no explanation that they give which stands up to scrutiny. This has left them resorting to lies and half-truths.
They have tried to use what in logic is called the straw man’s fallacy. A straw man argument is an argument based on the misrepresentation of facts that are being debated.
One is said to attack a straw man if you create the illusion of having refuted a proposition by substituting the facts in dispute with superficially similar facts yet unequivalent and proceed to refute facts which were not being debated in the first place.
The common sense of this would be something like, after failing to fight a strong opponent, one creates a figure out of straw and beats it to pulp and then claims that he has won the fight.
This is what is meant when people say the argument that you are using is based on a straw man’s fallacy.
This is what Rupiah and his minions have been doing. They have failed to give reasonable justification for their reckless decision to remove the offence of abuse of office and the attendant prohibition of illicit enrichment by public officers.
They have now resorted to misrepresenting the Anti Corruption Commission Act and accuse it of all sorts of things. One of the principle lies that they have peddled to justify their actions is the fact that the Anti Corruption Commission Act presumes an innocent person guilty.
There is no such thing in the Anti Corruption Commission Act. In fact, what the Anti Corruption Commission Act criminalises in Section 37 is the act, by public servants, of being found in possession of property or wealth which cannot be explained from legitimate income.
The prosecution is required to show to the court by evidence that a public officer has property or wealth which cannot be explained from legitimate and disclosed sources.
It is only once that is done, and the court is satisfied that the prosecution have established a reasonable case, that the accused is required to explain the source of the wealth that cannot be explained from the disclosed income.
According to Rupiah and his minions, this means that the Anti Corruption Commission Act has presumed an innocent person guilty.
This is a senseless argument. We say this because if the logic of Rupiah and his minions has to be accepted, then all criminal laws should be abolished in our country.
This is so because every person who is charged with a criminal offence and is brought before a court, tried and found with a case to answer, is required to explain their role in the crime that is being prosecuted.
If the arguments that were applied to the Anti Corruption Commission Act were applied to every criminal offence, Rupiah and his minions would have us believe that all these laws are unconstitutional. What kind of nonsense is this?
It is amazing that in a country where the vast majority of people who should be in employment are walking our streets without anything to do, their government is fighting for the right of those who are employed in the public service to be able to abuse their offices, acquire inexplicable wealth as a consequence of their abuse and be free from any legal sanction.
Why should people who are employed at taxpayers’ expense push to run all sorts of shady businesses from their public offices and refuse to be accountable?
In a normal country which has normal leaders, people would be too ashamed to mention this, let alone fight for it.
In a country where being employed is a privilege, how can those who have jobs paid for by the taxpayers fight for the right to run businesses from those offices?
It shows just how corrupt the system has become.
Nonsense that should have been stopped by simple common sense has been escalated to the status of public policy.
Somebody reasonable somewhere should have told Rupiah, and even George Kunda, his shameless bootlicker, that what they were fighting for went against public interest and could therefore not form public policy.
We have no doubt that somebody somewhere must have told Rupiah or George that their antics regarding abuse of office were simply unacceptable and would do great harm to the country.
But why have they continued in spite of the clear public disapproval of the route they are taking?
One of the key roles of any government is to determine what public interest is and formulate public policies that enable it to safeguard that interest.
Anything that goes against public interests should not be the basis of public policy.
If this principle is applied to the debate on the removal of Section 37 of the Anti Corruption Commission Act, one would have to ask the following question regarding that section; what public interests were meant to be preserved by the enactment of Section 37?
Once you answer that question, you would have to ask the next question which is: what public interests are going to be served by the removal of Section 37 from the Anti Corruption Commission Act?
In other words, how will the public benefit from a law that allows public servants to acquire inexplicable property, wealth or advantage?
An averagely intelligent person would be able to answer the first question that we posed.
It is clear why the nation needed Section 37, a law which prohibited abuse of public office and also prohibited the acquisition of illicit wealth.
No disquisition is needed for the benefits that a nation derives from such a law.
It is clear that such a law preserves public property and resources from plunder by public servants.
It ensures that public servants do not turn their offices into business centres for their criminal activities calculated to defraud the state and consequently our people.
The policy justification is not a difficult one at all.
It is in the interest of the public that the behaviour of those who control our resources on our behalf should be regulated to ensure that public resources are spent on public requirements.
Although the answer to the first question that we posed is fairly straightforward, the same cannot be said about the second question.
How is the public going to benefit from a law that allows public servants to use their offices corruptly, illicitly acquire wealth and not be called to account for it?
It is clear that only criminals are going to benefit from this type of law. We say this because if people are allowed to amass inexplicable wealth, it is highly unlikely that they will then pay taxes on that illicit wealth that they acquire or that they will function in the formal economy where the general economic climate would benefit from their activities.
There can never be any meaningful public interest justification for Rupiah’s confused policy on abuse of office.
This is why we must agree with Nkole that these irrational manoeuvres by Rupiah and his minions can only be explained by the fact that they know they have done wrong things and that law is too much for them.
If we accepted their nonsensical arguments, we would have to abolish the whole criminal law and where would that lead us as a nation?
Labels: ACC, MAXWELL NKOLE
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Abuse of office removal will only serve criminals - Nkole
By Kombe Chimpinde
Sun 21 Nov. 2010, 04:01 CAT
Maxwell Nkole has observed that the removal of the abuse of office offence is the government’s calculated move to shield culprits.
In an interview, Nkole - who is former Task Force on Corruption chairman - said the removal of the abuse of office offence from the ACC Act was retrogressive because the police had no capacity to enforce it.
“This is why the past governments applied specialised skills in investigating and prosecuting such type of crimes by introducing a desperate law under ACC,” Nkole said.
Nkole, a researcher at Cardiff University, said that abuse of office was a very sophisticated, tedious and hidden crime that required specialised laws under specialised agencies other than the police to trace. He dismissed the government’s claims that there were other laws that could curb the vice, stressing that section 37 was the best deterrent to abuse of office.
“It was on this law that the Task Force recovered a number of properties that were stolen from Zambians. People knew investigators would come sniffing whenever they suspected anything about a public official,” Nkole said.
He said it was frustrating that the Task Force that spearheaded the fight against corruption had been perceived as an academic exercise by the current regime.
“The whole dissolution of the Task Force, the removal of the abuse of office doesn’t make sense. To me it’s just a calculated move for government to ensure that certain individuals who are suspect to office abuse go scot-free,” said.
“I think they were a lot of recoveries we made and those we were in the process of finding. There was a directive from the late Mwanawasa for money from indisposed properties to be used for building district hospitals. Now we don’t know if those policies have been adhered to. If Task Force was still in place, I feel the country would have recovered stolen funds.”
Labels: ACC, MAXWELL NKOLE
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Nkole backs LAZ on Mchenga’s resignation
By Patson Chilemba
Wed 30 Dec. 2009, 04:01 CAT
FORMER Task Force on Corruption chairman Maxwell Nkole has said the Law Association of Zambia (LAZ) has every right to call for Chalwe Mchenga’s resignation because they are the regulators of lawyers.
And Lusaka lawyer Mundia Sikatana has said LAZ is very right because Director of Public Prosecutions (DPP) Mchenga has failed to defend the constitutional provisions of his office.
Reacting to former president Frederick Chiluba’s lawyer John Sangwa’s position on LAZ’s call for Mchenga to resign, Nkole said there was nothing unlawful about LAZ’s position.
“They are the regulators of the lawyers, conduct and they have all the right to interpret the situation as they see it based on the fact. So you know what LAZ is saying is within their mandate, and there is nothing unlawful about it,” Nkole said.
“At the end of the day, I have said that the DPP has to save his name, you know and he should seriously consider what all this controversy affect him personally and how it affects the whole system.”
Nkole said it was a pity that people were speaking on Mchenga’s behalf instead of him coming out to speak for himself.
“So we would like him to come out and say what his views are,” he said.
On Sangwa, Nkole said those that had been in Chiluba’s camp had taken great relief that the matter was handled in the manner it had been handled.
“But what we are saying is that you cannot suffocate justice at an early stage. Justice must be allowed to continue all the way up.
Also I think that lawyers know very well that magistrate Chinyama had ruled that each party in that matter should appeal, and I think that the other co-accused with Chiluba have since appealed,” Nkole said. “And there is no reason why the state should not also enjoy its right to appeal.”
On Sangwa’s assertions that LAZ were behaving like vigilantes, Nkole said Sangwa should differentiate between matters, which were purely legal and those that were political.
“I believe that this issue of DPP is the constitutional office of the DPP is all a legal matter and I think we shouldn’t import any political connotations into what is going on. I think it is better to leave matters which are legal, legal,” he said.
Nkole said the matter involving Chiluba had been taken to court by way of the judicial review, therefore, the lawyers representing Chiluba would be required to appear before the higher court.
“They should desist from making further comments on the matter, they have an interest in the matter,” said Nkole.
And Sikatana said Sangwa should not have gone that far to express his disagreement with his colleagues by calling them lawlessness.
“What does Mr Sangwa say on the stand of the state where they have convicted Mrs Chiluba and acquitted Mr Chiluba? I don’t know what that means, it doesn’t make sense,” Sikatana said. “It is not a question of lawlessness. Who is right? The Law Association is right.”
Sikatana said there was nothing else one could expect from LAZ other than to call for the resignation of an official who had failed to defend the office of DPP.
Sikatana reminded Sangwa that Chiluba was his client.
On Monday, the Times of Zambia quoted Sangwa as having said it was lawlessness for LAZ to champion the resignation of the DPP.
He urged LAZ to take the matter to court if it had enough evidence that the DPP’s action was against the law. Sangwa advised LAZ to desist from behaving like hooligans and vigilantes who worked without evidence.
Labels: CHALWE MCHENGA, CHILUBA, JOHN SANGWA, LAZ, MAXWELL NKOLE, MUNDIA SIKATANA
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Chiluba’s case should be sent back to court – Nkole
By Patson Chilemba
Mon 28 Dec. 2009, 04:01 CAT
MAXWELL Nkole yesterday asked President Rupiah Banda’s government to seriously reflect on the consequences of blocking the due process of the law to restore confidence in the office of the DPP.
In an interview, Nkole, who is former Task Force on Corruption chairman, said President Banda’s government should restore former president Frederick Chiluba’s appeal back to court if the impasse surrounding the acquittal and the office of the Director of Public Prosecutions (DPP) were to be resolved.
“I think prudence is such that maybe the matter should be restored back to court. Let the higher court look at it because it is not yet too late, and the High Court will make a ruling for Mr Chiluba’s innocence,” Nkole said.
“Dr Chiluba’s innocence will not have been proved beyond reasonable doubt in so far as there has been a blockage of ensuring that the due process had taken place, and I think it’s both in the interest of Dr Chiluba that he is totally cleared by the courts in terms of them endorsing his innocence. The Executive will still give him prerogative of mercy at the end of the day, and that way this issue will be resolved once and for all. The DPP’s office and its constitutional powers will be maintained.
“And also the individuals who are being mentioned here, the DPP himself, again their personal integrity will be restored.”
Asked if DPP Chalwe Mchenga’s personal integrity had not been dented already, Nkole responded: “I don’t know, but I think that there is no much damage in so far as there is still hope that somebody will seriously reflect on the consequences of blocking the due process of the law.”
Nkole said Chiluba’s case should be sent back to court so that he could be cleared, saying it was not good to choke the due process of the law.
On government’s statement that Vice-President George Kunda travelled to London for a case government had with Donegal International and not the plunder cases involving Chiluba, Nkole said all the cases, be it Zamtrop, Kwachamania, Donegal and the Chiluba prosecution were prosecuted under the Attorney General’s name.
He said Vice-President Kunda was Attorney General when the process of prosecution started.
Asked if he thought government through Vice-President Kunda was trying to distance itself from the prosecution of Chiluba, Nkole responded: “They cannot do that. The DPP acts on behalf of the people. All the cases we have taken to court were on behalf of the people. The DPP appointed prosecutors to come and work with the Task Force, the Attorney General signed contracts with those lawyers concerning the returner fees.”
Nkole said the decision to prosecute Chiluba was a Cabinet decision, dating back to 2002 when his immunity was lifted.
He said most people in Cabinet and Parliament today were part and parcel of that government. Nkole said the US $5 million that Patriotic Front (PF) president Michael Sata referred to was paid as security for cost and it was not stolen.
“So in this case, the Republic has actually won costs in the matter which means they get back their security for costs money plus any other cost which the court will impose,” said Nkole.
“And the duty of making sure that that money is paid back to the Republic still lies with the Attorney General.”
Recently, justice deputy minister Todd Chilembo said Vice-President Kunda traveled to London for a case the government had with Donegal International and not for the plunder cases involving Chiluba.
The remarks came in the wake of Sata’s call for Vice-President Kunda’s arrest for alleged failure to account for the US $5 million paid to the London High Court during plunder cases involving Chiluba.
Labels: CHILUBA, DONEGAL INTERNATIONAL, DPP, MAXWELL NKOLE
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LAZ’s demand for DPP to resign is timely – Nkole
By Patson Chilemba
Tue 22 Dec. 2009, 04:01 CAT
FORMER Task Force on Corruption chairperson Maxwell Nkole yesterday said LAZ's demand for Chalwe Mchenga to resign as Director of Public Prosecutions (DPP) is timely.
Commenting on the position taken by the Law Association of Zambia for Mchenga to resign because the public could no longer be expected to have trust and confidence in the important office for as long as he was there, Nkole said it was up to Mchenga to assess the impact of LAZ's call on him and the office he held. He said there was nothing criminal in LAZ's calling for Mchenga's resignation.
“First of all he (Mchenga) has to preserve his personal integrity, and then secondly he has also to uphold the constitutionality and functionality of the office of DPP. So the choice is his and what LAZ are saying I think it's an opinion which is well researched, and I think maybe it's timely advice,” Nkole said.
“In as far as the DPP's office is concerned vis-à-vis corruption cases, Mwanawasa didn't have much confidence that they should be the ones to have a final say.”
On Vice-President George Kunda's assertions that it was criminal to call for the DPP's removal from office, Nkole said people had a democratic right to express their opinions.
“There is nothing criminal about that,” he said.
Asked on who should take the blame over LAZ's call since the association came up with that position following statements from President Rupiah Banda, Vice-President Kunda and other government officials which showed that the executive prevailed on Mchenga not to appeal former president Frederick Chiluba's acquittal on corruption charges, Nkole said late president Mwanawasa created the office of executive chairman of the Task Force to report to him because he foresaw that the DPP could easily be influenced to make certain decisions without exercising his professional independence.
“And so what is happening today is quite surprising to us because it appears that there have been some manipulation behind the door to the DPP for him to make certain decisions, which should not be the case,” Nkole said.
“I would have liked to stay out of this, but I think a word of advice is that people should look at the record going back to 2004 when Mwanawasa, after the removal of Mukelabai Mukelabai, the reasons which Mwanawasa gave for the appointment of an independent executive chairman of the Task Force. Those reasons are still valid today.”
Labels: CHALWE MCHENGA, DPP, LAZ, MAXWELL NKOLE
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Sata and I have been vindicated – Hichilema
By George Zulu
Fri 06 Nov. 2009, 04:01 CAT
UPND president Hakainde Hichilema has said PF president Michael Sata and himself have been vindicated on their statements that President Rupiah Banda is corrupt.
Hichilema said the disbandment of the Task Force on Corruption by President Banda's government is aimed at encouraging corruption, theft, abuse of authority and protection of those in authority.
In an interview in Monze yesterday, Hichilema said it had become a source of concern to see how fast the MMD government under President Banda had scraped institutions created to fight corruption and corrupt government leaders.
He said it was evident enough that the current administration lacks political will in the fight against corruption, abuse of authority and has bent systems of governance which should not be accepted by the people of Zambia because it allows and promotes corruption.
“The PF-UPND pact was not surprised with the direction taken by Rupiah to disband the Task force on Corruption because we saw it coming. He had always wanted to benefit from corruption, it is easy to see the way he fired Mr. Nkole, and I am on record having said that 'the worst is yet to be felt by Zambians',” Hichilema said.
“Today Mr. Sata and myself have been vindicated. What we have been telling you about Mr. Banda is not a lie but facts; this man is corrupt and to have such a person for plot one it is dangerous. We saw all this coming... you remember the Dora Siliya RP Capital saga which led to the dismissal of Kapitolo, the dubious sale of Zamtel in total defiance of the demand from the people not to go ahead?
That is what has exactly happened with the Task Force on Corruption. They have disbanded it in order to protect his friend, the way he changed the Zambia National Tender Board to ZPA in a dubious manner to allow for more dubious deals but we have to warn him that the people of Zambia are watching and he should not be surprised of their action in 2011. He should blame himself for failure to govern this peaceful nation.”
Hichilema said President Banda had ill motives on the governance and the fight against corruption in the nation, adding that the fight against corruption was buried together with the late president Levy Mwanawasa.
Labels: CORRUPTION, HAKAINDE HICHILEMA, MAXWELL NKOLE, RUPIAH BANDA, SATA
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Task Force was a high level political commitment – Nkole
By Mwala Kalaluka
Sat 31 Oct. 2009, 04:01 CAT [
FORMER Task Force on Corruption chairman Maxwell Nkole yesterday said the disbanded anti-grant institution will be remembered as a very high level political commitment to clean up the abuse of public funds.
And Transparency International Zambia (TIZ) president Reuben Lifuka said National Assembly Speaker Amusaa Mwanamwambwa should not have allowed Vice-President George Kunda to issue false statements against TIZ in the House.
Commenting on the government's decision to fuse the Task Force on Corruption into the Anti-Corruption Commission (ACC) as announced by Vice-President George Kunda on Thursday, Nkole said the fusion was long awaited.
“These plans have been on paper for the last two years,” Nkole said. “What we can remember about the Task Force is that it was a very high level political commitment to clean up our society of abuses especially at high level and I think that in future the role of the Task Force will be remembered as having built a deterrent in the way public resources are managed.”
Nkole said it was that deterrent that the people would like to see continue in the country's efforts to fight corruption and ensure that there was complete accountability in the public and private sectors.
“What is left to be seen is how the new set-up they have put in place…how the fight will be enhanced rather than cause the loss of momentum,” Nkole said. “Government insists that the Anti-Corruption Commission should be the lead institution (in the fight against corruption), whatever that means?”
Nkole said since 1984, the ACC has been the lead institution in the fight against corruption and that no other institution had claimed leadership. He said it was wrong for the government to continue insisting on the fact that the ACC should now be the lead body in the anti-corruption campaign, when that had been the status quo all along.
Nkole also maintained that his removal from the Task Force on Corruption had nothing to do with indiscipline as alleged by President Rupiah Banda, because he had to date not been accorded an opportunity to be heard.
“The question of me being indisciplined is what I refuse,” he said. “It may be fair to say 'contract lapsed I do not want to renew it'.”
Asked to state his position on assertions that the Task Force was a money-gobbling institution, Nkole said the institution was mainly funded by the donors and the government was just funding the administrative part.
He said the Task Force required more money to carry out its activities outside the country and he hoped that donor support towards the fight against corruption would continue.
And Lifuka said TIZ wanted to get Vice-President Kunda's transcript on his statement on the fate of the Task Force on Corruption before it could comment.
But Lifuka said they wanted to deal with Vice-President Kunda's statement that TIZ was using the fight against corruption in a systematic manner and that the legal team was working around the issue.
“The Speaker should not have gone ahead to allow the leader of government to speak about an institution that can't defend itself. It is not right that the Vice-President would hide under parliamentary privilege to make such a statement,” Lifuka said.
Lifuka also said Vice-President Kunda should have laid evidence of his allegations on the table.
“We have a problem with the Speaker having allowed that debate to go on. Honourable Kunda should not have just gone to Parliament to make an allegation, which was untrue,” Lifuka said. “If he really believes in what he says, why doesn't he speak about it outside Parliament?”
After delivering his ministerial statement on the fusion of the Task Force on Corruption into the ACC, Vice-President Kunda said organisations like TIZ use the fight against corruption to get money from cooperating partners.
He said with TIZ and other people it was difficult to distinguish between a political agenda and the fight against corruption.
On Thursday, Vice-President Kunda announced in Parliament that the government had fused the Task Force on Corruption into the ACC.
Vice-President Kunda said Task Force prosecutor Mutembo Nchito would continue handling his cases while the ACC would take over all the investigations of the pending cases.
In follow-up question session after he had delivered a ministerial statement on the fate of the Task Force on Corruption, Vice-President Kunda said the responsibility to fight corruption was not for the donors but for every Zambian.
He was responding to concerns from some opposition parliamentarians that wanted to know why donors had stopped funding the Task Force on Corruption.
“Donors have their own reasons for stopping but with us we will not stop funding the fight against corruption,” Vice-President Kunda said. “The responsibility to fight corruption is not for the donors it is for all of us.”
Earlier, Vice-President Kunda accused organisations such as Transparency International Zambia of using the fight against corruption to for monetary gain.
Vice-President Kunda was initially hesitant to mention the organisations and individuals that he had referred to as the ones that were using the fight against corruption to make money.
“I do not want to mention them,” said Vice-President Kunda as parliamentarians from PF and UPND pressed him to. “Their agenda when they are fighting corruption is to get money from cooperating partners and foreign organisations.”
However, the PF and UPND parliamentarians insisted that he mentioned the organisations and people he was referring to.
“There are organizations such as Transparency International Zambia, they get money from outside…They earn a living through the fight against corruption,” Vice-President Kunda said.
“You can also set up a newspaper to just fight corruption. All you just need to do is to make allegations.”
But Katuba MMD member of parliament Jonas Shakafuswa asked Vice-President Kunda to explain if it was not true that organisations like TIZ had done a good job in fighting cases of corruption.
“Yes, they make statements. They are not constructive. The way NGOs should be working is to engage government,” Vice-President Kunda said amid heckles and boos from some opposition parliamentarians.
“The problem with Transparency International and some organisations, it is because it is very difficult for us…to differentiate between a political agenda and the fight against corruption.”
And Kabwata PF member of parliament Given Lubinda said the opposition would continue to heap blame on President Rupiah Banda if he continued to shield impropriety in his government.
Debating the 2010 budget estimate on State House, Lubinda said while President Banda deserved to be shielded from the misdemeanours of the people close to him, he should not shield wrongdoing.
“If he is going to shield impropriety we are going to blame him out rightly,” he said. “Whatever they do and is not punished we are going to say it is kwasha mukwenu, which means ‘help yours’.”
Lubinda said the presidency deserves respect but that a parent who respects his children would be respected and that one who does not respect his children was setting a trap for himself.
“My colleagues on the right should be the last to be provocative,” he said.
Lubinda said the opposition would respond with their entire wrath if those in the ruling party continued to be provocative. He said there was no way that a President could refer to a citizen as a bag of mealie-meal.
Lubinda said since presidents made mistakes, they required constant counsel from the citizenry.
Bangweulu PF 'rebel' member of parliament Joseph Kasongo advised the Rupiah Banda administration not to listen to prophets of doom within the opposition.
Contributing to the same debate, Kasongo said there was need for the public relations wing at State House to be strengthened so that it could counter some of the allegations leveled against the President by certain individuals.
“Otherwise, some of these allegations may be damaging to the President,” Kasongo said. “State House must be seen to evaluate the performances of all political appointees, especially managers.”
Kasongo urged State House to take action against the Accountant General for holding on to funds disbursed by the Ministry of Finance to the districts and provinces until the list of contractors to undertake the projects is availed to the office.
Labels: MAXWELL NKOLE, TASK FORCE, TIZ
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Former Task Force on corruption Chairman Max Nkole interview with Muvi TV
Written by George Chellah
President Rupiah Banda's government has fired Task Force on Corruption chairman Max Nkole following his appeal against the acquittal of Frederick Chiluba and the lengthy interview he gave to MUVI TV on Monday night.
Announcing the termination of Nkole's services in a short statement last evening, Secretary to the Cabinet Dr Joshua Kanganja stated that "following the expiration of the contract of employment of Mr Maxwell Nkole as executive chairman of the Task Force on Corruption, Mr Godfrey Kayukwa, director general of the Anti-Corruption Commission, will with immediate effect, serve as executive chairman of the Task Force for administrative convenience until further notice".
On Monday night during MUVI-TV's Matter at Hand programme, Nkole said nobody in the corridors of power should block the appeal against former president Chiluba.
"...Because we want to go and argue, to present our arguments before a higher court as to why we think there should have been a conviction. And I hope that nobody in the corridors of power and elsewhere should come and say we are blocking this appeal," Nkole said. "You can't block an appeal, the court said either party can appeal, why should anybody want to jump up and say you are not gonna go ahead. If the two co-suspects who have been convicted have got a right of appeal why shouldn't the state have a right of appeal?"
He insisted that what he did in instructing MNB legal practitioners to go ahead and file the grounds of appeal was the rightful thing.
"We have to be seen to be advancing the due process of the law. We can't block a due process by saying we shouldn't go ahead with the appeal. Let the higher court... after all these cases are of great public interest," Nkole explained. "You know these are not cases that you want to close just at the magistrate level and say it's done, it's not done. You gonna have to prepare yourself to go all the way up to the Supreme Court. That is how justice is dispensed and that's how it is supposed to be seen to be dispensed."
Below is Nkole's interview with MUVI-TV's Kennedy Phiri:
Kennedy Phiri: Once again the guest is Mr Maxwell Nkole Task Force on Corruption chairperson, good evening Mr Nkole and welcome to the programme.
Nkole: Good evening thank you, it's a pleasure to be here.
Phiri: It's great to have you. We are really blessed that you could find time to be with us on this programme.
Nkole: No... I had to, I have not been to the studios for a long time. I think I passed through once and it's a great pleasure to be back here.
Phiri: Mr Nkole I think getting underway it is important maybe for us to establish the background to the issue that we are looking at this evening.
Nkole: ...I have been in this job for the last four years and it was in 2005 that President Mwanawasa approached me to come and take over this role from old man Mark Chona because he wanted to make a change. So I left my United Nations employment to come and take up this challenge. And at the time and in accordance with the President's briefings, there were over 70 cases the Task Force had opened and some of these cases involve Dr Chiluba and some other people whose cases we have already processed. The President was anxious that the cases were not moving and he told me that there was need to get these cases moving and where there was insufficient evidence close the cases and clear the people who are suspected to have committed the offences. But at the same time he said to me that you have to prosecute those where there is a prima facie case, so since my arrival at the office we have been scrutinising through this case files and as you know looking at the whole administration of president Chiluba's government, the ten years, it's quite a huge task and so here we are and several other cases have gone under. We have secured convictions as Task Force in extent of 13 convictions. We have outstanding cases at investigation stage, we have been involved in the recovery of assets and we also been involved in both criminal and also civil litigation. Most of these cases at civil law here in the High Court in Zambia going all the way on appeal up to the Supreme Court are still outstanding. Some of the litigation we have been involved in including the London judgment are cases that are yet to be registered here again opening up another avenue for civil litigation before our own High Courts here. We have several cases at criminal law, which are still outstanding and one of them is president Chiluba's case, which ended up in acquittal last week. Shortly after the acquittal, I issued a statement to say that we welcome the conclusion of that case because from 2003 and this is 2009 it's six years later. We have been in court back and forth and these cases were not being decided on time. So for us at the Task Force we are quite happy that the case had come to a conclusion and I said regardless of what is the finding of the court, let us accept that the court has made a decision. Now apparently I was misquoted to suggest that I was saying that we have accepted the judgment, far from it!
Phiri: We are meant to believe that you congratulated in fact the former president on that one.
Nkole: No, no, no! I didn't. All I said was that we do accept as Task Force the decision of the court because we have to respect our courts' independence of the way they do things. However, we were unhappy and because maybe I didn't come out strongly about us being unhappy following the acquittal two three days later it became necessary for me to clarify our position and that's when I said that we are not happy with the acquittal because we strongly believed that Dr Chiluba was not innocent and there were reasons for that. At the same time we also welcome the conviction of the other two co-accused persons in the same trial. We said we welcome the conviction of the two co-accused person but we are not happy with the acquittal of Dr Chiluba, we believe he is not innocent.
Phiri: What does the acquittal mean?
Nkole: The acquittal unfortunately it's the decision of the court and what it means is that either party who is dissatisfied with the decision can go to a higher court and raise grounds of appeal. In this case for instance, if you look at conversely the conviction of Mr Kabwe and his co-accused Aaron Chungu and then subsequent being sentenced to prison, they went to prison and actually filed the notice of appealing. They are appealing against their conviction and sentence. And the court said then that either party to those proceedings can actually appeal. The court gave the right to either party either the state, Mr Chungu including Dr Chiluba can make an appeal on this matter. The acquittal for us it's the decision of the court, which we respect and we have the freedom to either appeal on it or leave it as it is and that's how we are looking at things. Subsequently, I have given instructions to MNB Chambers who are the lawyers who have been conducting the prosecution of this case all these years to say that if there are good grounds of appeal, we should go ahead and make that appeal.
Phiri: On the same aspect of appealing Mr Nkole, people have argued that you do not have the mandate, that mandate that has to come from the Director of Public Prosecutions (DPP).
Nkole: They are arguing out of ignorance. In my briefing notes upon my appointment, I sat with the President and he explained to me how he expected me to work with the DPP, how he expected me to work with the Attorney General. And he defined what should be the role of the chairman of the Task Force against corruption. He did underline that we have a collaborative relation with the office of the DPP and Attorney General. He never said I should take instructions from the DPP or the Attorney General for whatever we do because president Mwanawasa wanted to be very distinct about the role of the prosecutor and the role of the investigator. He didn't want to mix the two roles so he said the chairman of the Task Force will be solely responsible to carry out investigations and then I am going to give him a pool of lawyers to work with. Should the matter require that it should go for review to the DPP, the chairman refers the matter to the DPP and that is how we have operated. I work very closely with the office of the DPP together with the Attorney General and all these cases we have done in London and prosecution of cases we have done here we have done and I have done it with full disclosure both to the Attorney General and the DPP including this particular acquittal.
Phiri: What is your reaction listening to latest information coming through that the DPP has given instructions that you shouldn't proceed with the appeal? He feels that there is need to study the court ruling.
Nkole: Well I think it's a question of semantics I am not sure that he is supposed to...I think he has advised. He gave advice that he wanted to look at the judgment so that he can give his own opinion. But that's not the way we operate, how we have operated in the last six years is that our prosecutors prosecute these cases and if these cases are appeallable, we make a decision, a management decision at the Task Force that we should appeal. That's how we have operated. I personally do not think president Chiluba's case is anything special that our own prosecutors or indeed myself cannot make a decision that we are going to appeal. And it's from that premise that I wrote a letter to MNB chambers. I said well it looks like there is an acquittal here but according to the advice you have given me, there are grounds to appeal I would like you to go ahead and in the meantime let me inform the DPP that we are going to go ahead with the appeal, so he was informed.
Phiri: Are you going to take his advice on this or not?
Nkole: Advice to appeal we have already appealed. As a matter of fact, I shouldn't even be discussing the merits of our grounds of appeal right here because we already lodged in the papers. As of this afternoon, the clerk of the High Court has already accepted the documentation. It is already in so it's not an issue now and if I try to make any comments on our appeal strategy it will be subjudice. I would rather not make any comment on this matter and it's a matter that we gonna have to deal with internally between my office and that of the DPP. But in terms of legality of whether we should appeal or not, the appeal as already gone through.
Phiri: Are you able to walk us through some of the grounds that you feel this case has to go back to court?
Nkole: Well not exactly, I would rather maybe we don't discuss the grounds of appeal right now especially in view of some of the political interests that are being expressed right now in the Chiluba camp and among some of our own government officials, I would rather not. But I think that our statement is that we have already filed an appeal, as of this afternoon it's gone through and whosoever wants to be party to that appeal is free to come and join us.
Phiri: Talking about political sentiments really before judgment there were such political statement...I know you have spoken highly of the late president Dr Levy Mwanawasa, really is the current government committed to fight this corruption?
Nkole: What I would say is that Kenneth Kaunda had his own strategy of fighting corruption. I remember I was on the team that investigated Kenneth Kaunda on the copper gate and president Chiluba came into office after Kaunda and he commissioned an investigation against Kaunda for theft of copper. And I and the late Alex Makayi we looked into those and we developed some case files. He had his own strategy how he wanted to investigate alleged corruption, president Chiluba. Then after him comes Mwanawasa and Mwanawasa too forms the Task Force against corruption and he believed that high-level corruption had gone too far in president Chiluba's era so he creates the office that I am heading and we have been working by way of a vision that Mwanawasa had and the strategy that he had. Now after Mwanawasa, we have the current government who is actually a spill over or just a continuation of Mwanawasa's legacy. They have inherited the Task Force and I think since the time President Banda has been in office, we have heard from government, the leader of the House saying that the fate of the Task Force is being decided by the government, which is fine. Which means that the government is looking at maybe the new strategy of how to advance the fight against corruption and may not necessarily want to approve the current status quo. If it is the intention of the government to disband the Task Force at this point in time, it is within their will to do that. We will be more than ready close the doors and handover the keys.
Phiri: Do you think this issue is coming up maybe because of the way the Task Force was established? People have argued really that your body is basically illegal.
Nkole: You know Ken, president Mwanawasa invoked and you can read this on your own Article 61 of the Constitution of Zambia in creating the Task Force. And that Article 61 states that the President of the Republic of Zambia shall have power, one to create and to dissolve any office within the land, two to appoint and disappoint any other person that he wants and in his appointment letter president Mwanawasa cites the provision of the Constitution to say in the exercise of powers vested in me as president of the Republic, I hereby create the Task Force on Corruption, which will be headed by a chairman.
Then he goes to spell out the duties of the chairman of the Task Force on Corruption. People have said the Task Force is illegal, if the president is acting within the powers of the Constitution is he acting illegally? I don't know where some of the people which law school they went to...I went to the University of Zambia and I know that when the president invokes powers vested in him under the Constitution, he is acting legally and constitutionally. So those people that have been challenging the legality of the Constitution maybe might be doing that out of ignorance. They don't know what the president did to create this office. What they could be doing is maybe challenging the current administration or whosoever is in the office now to say can you revoke the creation of this office. And of course the president including President Banda right now has got the power. If he wants to close the Task Force tomorrow all he has to do is invoke his powers under the same Constitution, the same Article 61 and say I hereby dissolve the Task Force and then tomorrow we can lock up and go, period.
Phiri: Has the death of president Mwanawasa made your work any difficult?
Nkole: Well, president Mwanawasa had a great passion and being a lawyer himself he wanted to follow details of our work to the letter because as a practitioner he was always interested in knowing the outcome of cases, in knowing difficulties of the office and through the executive briefings I could have with him he would ask me if I was having any difficulties. And when it comes to logistical support he would refer me to the Secretary to the Cabinet to say go and see the Secretary to the Cabinet to look into your staffing levels or into your transport or fuel problems or your travel and stuff like that. When it came to policy matters or matter pertaining to civil litigation he would encourage me to say go and discuss it with the Attorney General. If we were prosecuting a matter which requires the consent of the DPP he would encourage me seek concurrence of the DPP but in all these other cases we don't need the DPP's consent to prosecute, we make our own decisions within the Task Force because we've got qualified lawyers some of them, ex-lawyers such as Sebastian Zulu are State Counsels, Mr Mundia State Counsel these guys are fully, totally qualified to analyse and give opinion on any matter and we have been guided. The success that has been registered by the Task Force in terms of conviction and stuff like that is a result of the good work that these lawyers have been putting in. We haven't had assistance in terms of prosecuting these cases from the DPP's chambers. We don't have prosecutors seconded there because most of the officers there may not be fully acquainted with the cases at hand. So the DPP and the Attorney General made a decision that we should hire private practitioners, people that are already in practice to come and assist us and these are the people that we have been working with and they are capable of making any decision on any matter.
Phiri: Maybe I bring you back to the case of the acquittal...there are so many issues that are pending, we know that you seized a number of properties from him, what is the status as regards this property?
Nkole: Again I said that we have filed an appeal pertaining to the criminal case and it's only one criminal case that we have been dealing with concerning Dr Chiluba, which is to do with the Zamtrop account. We haven't yet pulled out the other files from our closet where Dr Chiluba is implicated in, we haven't yet done that. So we just wanted to pull the Zamtrop case upon which he has been acquitted in order not to be seen that we are being vindictive or we are just trying to mess Mr Chiluba around by bringing in so many cases at the same time. But I have information, I have the intelligence concerning his involvement, if I may say on other outstanding investigations, which I propose that we should wind up because I inherited these cases, they have to come to conclude. And needless for me to dwell in into which cases these are because you see it might be prejudicial to him. But just broadly speaking we have the Carlington maize... eight and half million dollars, with two Canadian commodity brokers Ali Ben Menashe and Alexander...the two directors of Carlington. Alexander we have traced him now he is in Louisiana Prison and so it's our intention to talk to him and tell us where they took the eight and half million dollars? Who benefited from the eight and half million dollars? Is there any Zambian who benefited? The same thing goes with the US $20 million, which went to Mr Katebe Katoto. We've got to get to the root causes and beneficiaries of this money, where it has gone. This is Zambian money, you close the Task Force today you have to make a provision to ensure that these cases are concluded tomorrow or the other day. For now we have the mandate to deal with these cases, so we gonna have to deal with them for as much as we can and given the competencies at hand. If anybody is trying to block processing these cases because they want to close the Task Force, it is within their right to do so and the authorities will be able to see through why people are advocating for the closure of the Task Force.
Phiri: What could be the implication if such a move was to be taken that the Task Force is closed?
Nkole: Obviously, the government will have to put up what we call an exit strategy, they have to guide us as to how they want the closure to take place from the point of maybe handing over case files which are currently pending to another institution and then also telling us how to clear up all the cases which are currently in court. And also move forward now to an administrative closure and accounting for everything that we have done before we hand over the case. But I think it will be up to government to propose if eventually they decide that yes we should close by such and such a date they will give us the guidance of how they want to close it. Sometimes you can just slum the door and say it's closed. We don't mind about that and it's not within our competence to suggest whether they should or they should not close the office. All we know is that the government intends to give much more power to the Anti-Corruption Commission (ACC), they want to strengthen it in several ways so that they can be the leading institution to tackle cases of corruption in future. If that means handing over all the cases that are at the Task Force to the ACC we are more than willing to do that.
Phiri: We move on Mr Nkole...I wanted your interpretation of the London judgment, which is yet to be registered here... what is the connection, the London judgment as well as the acquittal given?
Nkole: Absolutely, absolutely, you can look at it this way, the London case, the level of us as prosecutions group to prove that case is slightly lower than the level that is required in criminal cases. In the civil case you have only to prove the case maybe on a balance of probabilities they call it. Due to sufficient evidence to show that a wrong has been occasioned, on the other hand a criminal case requires a higher standard of proof beyond reasonable doubt. It is that ‘beyond reasonable doubt’ that on Monday last week the court here decided that maybe we didn't discharge that burden of beyond reasonable doubt. But mind you this is the same court who said, who says, we haven't discharged the burden who at the closure of the prosecution case had indicated that Dr Chiluba had a case to answer. They made a ruling, he has got a case to answer and they proceeded to put him on his defence. He was put on his defence and he gave an unsworn statement. Had he given a sworn statement, it would have enabled us to cross-examine him on the monies on his account so-called Zamtrop money, which was received on his behalf from well-wishers we wanted to know, who are these well-wishers? Could these well-wishers be some of the Carlington people who have taken US $8.5 million, could some of these well-wishers be the Katebe Katotos who have taken US $20 million, we want to know. So the very fact of finding him with a case to answer at the closure of the prosecution case and then with all the contradictions that eventually happened in the course of the defence case we find that no, he is not an innocent man. The same court alludes to that fact that they found him with a case to answer. So now when you compare the two, the liability case in London found him liable for fraudulent transactions and ordered that he should pay an equivalent value of money. We yet have to register that judgment so that we enforce it...now in extent of US $50 million, we have to recover from Dr Chiluba. And I want to say that the criminal matter has got no bearing on the London civil case because the London civil case is not about Zamtrop per se. It's about various other illegal things that occurred in his administration. The Zamtrop case upon which he has been prosecuted two of his co-accused have been convicted personally, I don't see how he could have been acquitted.
Phiri: Do you think there was an invisible hand in this judgment?
Nkole: I wouldn't say, what has happened here only upon appeal shall we know the truth. Nobody should want to block the appeal because we want to go and argue to present our arguments before a higher court as to why we think there should have been a conviction and I hope that nobody in the corridors of power and elsewhere should come and say we are blocking this appeal. You can't block an appeal, the court said either party can appeal, why should anybody want to jump up and say you are not gonna go ahead. If the two co-suspects who have been convicted have got a right of appeal why shouldn't the state have a right of appeal? So for me, I think that what I did in instructing MNB to go ahead and file the grounds of appeal is the rightful thing. We have to be seen to be advancing the due process of the law. We can't block a due process by saying we shouldn't go ahead with the appeal let the higher court....after all these cases are of great public interest. You know these are not cases that you want to close just at the magistrate level and say it's done, it's not done. You gonna have to prepare yourself to go all the way up to the Supreme Court. That is how justice is dispensed and that's how it supposed to be seen to be dispensed.
Phiri: On the registration of the London judgment, where are we?
Nkole: We have started off very well, the Attorney General did a good job and we went before the late justice Japhet Banda but unfortunately as you know he passed on in a traffic accident, which means we have to restart the whole motion. Filing in motion before another judge, reallocation of the case before another judge, setting up dates of trial and most of the calendars are actually locked up. As of now, the Attorney General is trying to secure the dates when the hearing could take place. The Chiluba camp and his co-defendants are challenging the registration of that. So most likely we are going to go in for a protracted litigation just to get the registration of that judgment endorsed or secured by the court it will be protracted. And so far as that judgment...the London judgment is not resolved, you can't talk about the lifting of Chiluba's immunity. And in so far as these criminal cases upon... the state hasn't yet exhausted the proceeding and the procedure of appeal up to the Supreme Court, you can't talk about the lifting of somebody's immunity.
Phiri: Some people argued that the case in the London High Court is a civil matter that can't block the issue of restoring his immunity.
Nkole: When his immunity was being lifted, it never stated that it's only limited to criminal matters, no! All sorts of abuses committed during his administration whether they are civil or otherwise. We, the people that have been strategising to select and choose which abuses, we decided that some of these abuses are best dealt with civilly. So a better option which would eventually just lead us to recover the amount of money, which was abused. Houses were bought using government funds, we have to recover all that...vehicles were abused, money spent on children's education, public money and a poor Zambian there in the streets is actually there suffering, so we have to recover that and restore it to the Zambian people. President Mwanawasa said that all the monies that are being recovered by the Task Force should go into a recoveries account at the Bank of Zambia, which is actually managed by the Ministry of Finance and that, that money should therefore, eventually be used by the Ministry of Health to upgrade district hospitals across the country. Now that is not up to me to say what is going on there, that will be up to the government to say whether that policy, which was endorsed by Cabinet is currently ongoing and if they are using those monies that have been realised. The London judgment is in extent of 400 million if you put all the defendants together. We have to enforce that judgement in respect of each one of them. By the way, we have already made recoveries against Shansonga one of the co defendants. So what stops any other co-defendant from not paying their liabilities? Boutique Basili who was making the shoes and suits for Dr Chiluba says 'here is your money I am giving it back to the Zambian people I didn't know that I was doing this thing in a country which is as poor as what I have come to learn. I cannot have any of this money you have to have it back.' He has paid it back so several other defendants are starting to pay back this money and there is nothing special why Dr Chiluba's liability should not be enforced. You can argue and delay its registration but at the end of the day, we have a solid case against him at civil law there. And then side by side as I have said that we gonna have to appeal on this matter. We also are going to look at other criminal cases that are pending and outstanding and I hope that the authorities should not block us either as Task Force or indeed any other law enforcement agency from stopping to look into these cases.
Phiri: Talking about the same London case Mr Nkole, we are made to believe as a country through you the Task Force we lost about US $40 million.
Nkole: No... over the period of my time which is when the donors came on board in October 2005, that's when they signed the MoU between the government and the donors, the donors have only put in US $10 million, which is US $5 million in 2005 and 2006 and then six and seven. So five, five...ten all together all the donors put together so I don't know who is dreaming those figures of US $40 million and then all the other expenses it's been born by the GRZ. All other expenses the donors put in and so you know...and all that money has been utilised to pay our London lawyers.
Phiri: Your push for the appeal is also being interpreted as just for personal benefit. We are meant to believe in a month on I think allowances and salaries it comes to K1.2 billion for about six people.
Nkole: I have never taken a single allowance from the Task Force since my appointment not even housing allowance or any sort of allowance. Of course maybe I do take a day or two if I am flying out to go and pay for my accommodation but I don't take any allowance at all. Those officers working for the Task Force are drawn from the Zambia Police, DEC, ACC... there is only one person who is on contract at the Task Force and that's me, I don't draw that kind of salaries or allowances. By virtue of their operational duties, they are required to get maybe an operational allowance when they are operating outside Lusaka. That is all normal, it's happening in all government institutions. There is nothing special about somebody working for the Task Force getting an allowance which allowances is gotten by anybody else so there is nothing so peculiar about that. They do get sort of an operational allowance when they are on duty but the figures don't go to the kind of figures I think the person giving you those figures needs to come and see me or indeed read the Auditor General's report because these things...our office is so public all the money from donors, all the money from the government is always reflected, the expenditure in the Auditor General's report.
Phiri: Before I get to the messages, we have received a couple of messages that I will be able to read for you to respond...operational challenges I know that at some point the donors did withdraw, how are you managing in terms of...
Nkole: It has been difficult that is why it's so difficult for us to, for instance, go and operate and trace the Carlington maize money in Canada and in the Canary Islands and in Jersey out there you need money to get there, to go and do operations there. The donors pulled out in May 2007 and since then, the government has been left alone to bear the costs. Of course, you know on one hand I would agree with the government when they say we should close the Task Force because it's been expensive for them to run as a government on their own without assistance. Yes, I think they are legitimate reasons to do that, the London case is going on, there are still certain by the way motions and litigation still going on attracting legal cost from time to time. So it becomes a little bit difficult and the government has to decide when are they gonna stop this? But that is not to say they should stop to pursue the recovery of the US $20 million on the arms deal or indeed the Carlington deal or indeed any other of these flaws that were committed during the ten years of this administration. They should recover that money, there is nobody who has got the moral right to say stop that investigation because those are public funds, they have to be restored back to the Zambians somehow, we got to work out the mechanism of ensuring that...even if we can't prosecute for being complacent or collusion in the loss of this money but at least we should be seen to make demonstrated efforts to recover the money on behalf of the Zambian people.
Phiri: Mr Nkole let's see if you can be able to respond to some of the messages that we have received from our viewers quite a number of them that we have received. The first one says 'Mr Nkole I feel the people of Zambia are betrayed by you and your people, you and you people were tasked to do something which you have failed to do, sad, what next now? One day Zambians are going to...' maybe I take two or three then you respond. The other one says 'we are human beings and we all know God please let him enjoy his rest of life forgive and forget lovely Zambians Mr Tembo from Lusaka'. Maybe the last one says 'it was on news that only DPP can sanction an appeal against FTJ your comment sir!'
Maybe just the first one, this one who feels really betrayed the Zambians...you were tasked to do something, which you have failed. Is it true you have failed?
Nkole: I don't know what's failure in his definition. We are still pursuing these cases, we are still recovering money, we have recovered so much money in terms of asset recovery. We are yet up to enforce the London judgment. We have been prosecuting Mr Chiluba for US $500,000 and that case has collapsed, we are appealing and this is where I think that as Zambians we have to be careful. There is a Zambian complaining that you have let us down because of the acquittal and there are certain interest groups that are saying you can't even appeal against it. Why shouldn't we appeal? So dear comrade I think to the writer I would say that you are supposed to be advocating for us to appeal because in any case what if the higher court actually overturns the acquittal and finds this man guilty, what are you people going to say? It's just fair that we ensure that justice is seen to be, being done and that both parties be allowed to do what is rightful...their right to do, which means if either party feels we should appeal we should go ahead. I feel that we should appeal I have given instructions that we should appeal and my lawyers have told me as of this afternoon the papers were lodged, I am quite happy with that.
Phiri: This one says that 'how true is it that you are trying to shield the cases of theft coming against you?' The other one says 'Mr Nkole we know you just want to continue with your fat salary. As Zambians we are saying no to Task Force, we want to remain with the ACC please leave him alone'. Okay may be we can take another one, 'this one says you are just wasting our taxpayers money, leave Chiluba'. Then this one says 'Max The Post will use you to make their money and dump you be careful, the way you talk, act professionally and not politically'. Maybe you can respond to this...
Nkole: I have no relationship with The Post in my previous life. The Post has actually castigated me. I don't know the owners, I am told it's Mr M'membe and other people. I have no relationship with them. I am a professional pure and pure, at the UN yes, maybe my salary was in extent of US $12,000 to US $13,000 I was earning for the last 10, 11 years. When I came here my salary has dropped to almost US $3,000. So there is no fat salary I am picking here as compared to where I am coming from. And all these poor policemen from DEC and from police and whatever, they are just getting their basic police salaries. Nobody is gobbling any fat salaries from the Task Force at all, nobody! Not me, not even an allowance. And if it comes to people thinking that some of us are sticking on to this job, it's just that we feel so passionate about what president Mwanawasa stood for. We have to redeem our country from corrupt elements and we have to fight this vice. It's up to the fight, you need courage, you need determination to get into the shoes that I am wearing. You can't fight corruption if you don't have the courage to do it or indeed the passion. Mwanawasa came and said I think you can do it and I am doing it regardless of my little salary, I am doing it for mother Zambia. I've got passion to and I enjoy what I am doing so forget about people saying that fat salaries and stuff like that, that's just petty jealousy and if any Zambian wants to come and do my job let them apply and come and do it. They are so free to come and want to take over and come and champion the cause for me I will support them. If anybody wants to take over my shoes and become the chairman of the Task Force on Corruption and promises that he will assist us to recover the money that has been plundered and restore it to the Zambian people, I am more than ready to leave office tomorrow. Anybody who has got the capability to compare in terms of efficiencies and effectiveness to drive these cases forward can come forward and take over. I’m just an ordinary Zambian. And I am just there to try to do what the Zambians want me to do. Fortunately for me the president says I have got some talents and some skills to try to assist to drive the fight forward. I have been trying to do that. If I am failing the Zambians, fine I think the appointing authority will review my performance and ask me to leave and get somebody else and I will go with my head up.
Phiri: We move on and take some more messages. Quite a number like I mentioned...'you have spent a lot on this case already some of you are stinking rich we know kalilo'. This one says 'Mr Nkole don't listen to fake NGOs who have no followers'. This one says 'Mr Nkole why don't you leave him alone, acquittal was free and fair I think it was the only case that you depend on'. This one says 'how is it possible that for people involved in a case one goes scott-free whilst the other three get five-year jail sentence on the same case'?
Nkole: Absolutely, and that's why we are going on appeal because we are saying that it's similar facts, the case is drawn from more or less similar facts. You can't lock these two people in and then acquit the other one. There has to be very compelling reasons why he is being and these are the reasons which we want the higher court to go and review. And let me also say that the Task Force was not created just to prosecute Dr Chiluba's US $500,000 case that's all, no! I think that is completely a mistaken position. Task Force was created to look at the general abuses and this Zamtrop case upon which he registered an acquittal is just one of the several cases that are supposed to be put up against him. And if people are trying to advocate to say leave him alone, who is going to bring back your US $20 million which was supposed to be used for the purchase of firearms here. Are you going to let that money go just like that? And then these same people who are saying leave him alone they will go around knocking and saying no I fought for you to say they should leave you alone so give me a percentage. Is that we are going to...no I am a fighter and we are not going to allow that. We have to pursue these cases rigorously until when we recover the money that's been plundered...US $20 million just talk about US $100,000, US $50 or maybe US $5,000 what it can do in the township here just to uplift people's lives, maybe put a borehole, maybe put a small road or a bridge or something like that. Now you are telling me, me appointed to fight corruption I should just let go of US $20 million down the drain? You got to be joking! And if that is the general attitude of Zambians to say leave him alone I wouldn't leave him alone. We have to pursue justice to its logical conclusion. The Bembas say umulandu taubola the case can take for as long as 10 to 15 years, the case will still be outstanding there. If my investigators tomorrow have to go to Canada to go and talk to Alexander... before he is sentenced on 10th October and he is going to tell us who has benefited out of the Carlington maize and which bank accounts were used to deposit those monies, is that not fair for the Zambians to know? Is it not fair for the Task Force or indeed any other law enforcement agencies to follow up and recover that money and bring it back? That is taxpayers money. And so much money else has been lost in the privatisation of the mines and the parastatals, we just don't have the capacity to follow up on each one of these cases and take these people to court because we shall be accused of harassing them. But we would like to do a thorough job, a professional job so that when we take somebody to court we know that we have a prima facie case. In all these cases we have taken to court the courts have actually agreed with us that they were good grounds to be taken to court including that of Dr Chiluba. We presented the case at prosecution stage and the court said yes, you had established a prima facie case and I am gonna put this person on his defence, that's what the court said. Anna Chifungula, the Auditor General, as a prosecution we didn't call the Auditor General to come and give evidence on our behalf to prove whose money it is that was in the Zamtrop account. Anna Chifungula was called by the defence by the Chiluba camp to come and give evidence in their favour and she said you can't put your private money in a government account, the moment you do that, that money forfeits to the state, it's government money. That's what the Auditor General...that's what is on the record. So these are some of the things, which we are saying I don't want to comment on them but I think that the innocence of Mr Chiluba on the Zamtrop case for which he has been tried is questionable.
Phiri: As the Task Force what lessons have you learned... really what has happened in the Chiluba case?
Nkole: We are still studying the whole thing and this is why I think that we can only put up meaningful arguments when the matters go before the High Court, that is when I think the Zambians will need to know what has gone wrong. That's when we can put up our own arguments. We can't start arguing the case right now here because that is the domain of our lawyers and including the DPP's chambers to go and argue our case. All we can do is consolidate our case for argument and say we believe that this man should have been found guilty. As to whether or not there has been some influence I don't want to say that. But it's quite interesting how a court that has found somebody guilty after the closure of the prosecution case can subsequently found him innocent...I mean found him guilty or with a case to answer and subsequently acquit him, it's a contradiction for me as far as am concerned. So I think that's our position and say that we did welcome the conclusion of that case because it has taken so long. I think in the best interest of justice it's better that these cases be handled by the Task Force that have gone on and on must be concluded. You might want to know that the delays in concluding these cases is mostly attributable to the defence themselves rather than the prosecution side...70 per cent of all adjournments and of all these dragging on of these cases it's because of the defence trying to find excuses hoping that maybe as we go on maybe one key witness might die. So therefore that will break down the case and stuff like that. If you are trying to accord the suspect due process you just have to conform and say well let's go on an adjournment. So these cases have been dragging on not because we are interested or because we want to stay in position. We want to wind up the cases and go home, this is a very risky and lonely job. I personally don't want to stay this way for the rest of my life or indeed another one or two years. I want to be free like you mingle... we cultivate a lot of enemies in this job. We are playing with people's lives or is it livelihoods and of course they have got sympathisers and these sympathiser are not happy with us and yet these risks that we expose ourselves to by accepting these jobs they gonna stay with us for the rest of our lives. That unfortunately is the price we will have to pay so it's so disheartening for anybody even to suggest that these people are enjoying there. There is nothing to enjoy in this job, absolutely nothing and until Zambians start appreciating the due process of the law, the fact that legal matters must be allowed to take full course are we going to be ourselv
Labels: MAXWELL NKOLE, TASK FORCE
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