Hamaundu's decision over London judgment wrong - TIZ
By George Chellah and Patson Chilemba
Sun 22 Aug. 2010, 04:00 CAT
TRANSPARENCY International Zambia (TIZ) has advised Attorney General Abyudi Shonga not to be influenced by political pronouncements concerning the appeal against Lusaka High Court judge Evans Hamaundu’s ruling on Frederick Chiluba’s London judgment.
But Vernon Mwaanga said the government’s position not to appeal against judge Hamaundu’s decision to throw out an application by the state to register the London judgment against Chiluba and others must be respected.
In a letter to Shonga dated August 20, 2010, which was also copied to Vice-President George Kunda and Law Association of Zambia (LAZ) president Stephen Lungu, TIZ executive director Goodwell Lungu urged Shonga to consider appealing.
“Dear Sir, RE: TIZ RECOMMENDATIONS ON JUDGE EVANS HAMAUNDU’S RULING ON THE REGISTRATION OF THE LONDON HIGH COURT JUDGMENT AGAINST DR. FTJ CHILUBA AND OTHERS. The above captioned subject refers. We write to recommend to your good office to consider appealing or consider registering the London High Court Judgement involving Dr. Frederick Chiluba and others under Common law as observed in Judge Evans Hamaundu’s August 13th 2010 judgment.
We wish to also encourage your office not to be influenced by political pronouncements such as the one attributed to the Chief Government spokesperson in today’s Times of Zambia that Government will not appeal, as we believe such a decision can only be made by your office which is a competent authority as the current Attorney General of the Republic of Zambia (AGZ) on this matter,” Lungu stated.
“We write and want to note from the outset that Transparency International Zambia (TIZ) wishes to place on record its gratitude to the former Attorney General but now his honour the Vice President and Minister of Justice for the Republic of Zambia, Hon. George Kunda, SC for having taken a leading role on behalf of the people of Zambia in ensuring that the Former Republican President, Dr. Fredrick Chiluba and others were pursued in the London High Court for defrauding the people of Zambia of millions of United States Dollars.
For the avoidance of doubt, the London High Court judgment established that “The AGZ then Mr. George Kunda considered it appropriate for the proceedings to be brought in the High Court in London for a number of reasons. First it is alleged that significant Defendants namely MCD, CM and AS (Meer Care and Desai, Cave Malik & Co. and Atan Shansonga) were based in London and large amounts of the allegedly stolen monies were passed through accounts held by them onward to other destinations both in Europe and elsewhere. Accordingly AGZ Mr. Kunda concluded that the claims he brought were centred in London”.”
He stated that TIZ believed that the government then decided to take such a course of action believing that the money in question was for the citizens of Zambia.
“TIZ has taken time to study and reflect on the ruling passed by Judge Evans Hamaundu on 13th August, 2010 in which he set aside the order granting the Attorney General leave to register the judgment of the London High Court of Justice obtained against former President Dr. Frederick Chiluba and others.
Our observation is that the issue that the Zambian High Court has addressed in its judgment is only one – namely whether the judgment of the London High Court of Justice should be enforced by direct registration. High Court Judge Hamaundu does not, anywhere in his judgment pronounce himself on the judgment’s validity, which judgment was obtained in a competent court; the London High Court of Justice,” he stated.
He stated that as far as they were concerned, the findings against Chiluba and others still remain valid.
“Our understanding of the Ruling is that Judge Hamaundu did not state that judgments from the United Kingdom could not be enforced in Zambia except that he has set aside the order to grant the Attorney General of Zambia, on behalf of the Zambian people, leave to directly register the London High Court judgment under the Foreign Judgments (Reciprocal Enforcement) Act.
Judge Hamaundu states that a judgment creditor (Attorney General) wishing to enforce a foreign judgment at common law will have to commence an action founded on that judgment as a cause of action (J19. It is our considered view that Judge Hamaundu actually presented your honourable office another avenue through which you should consider in seeking the enforcement of the foreign judgment against Dr. Chiluba and others,” Lungu stated.
“We find it instructive that Judge Hamaundu in his judgment does not favour direct registration as a way of enforcing foreign judgments. What we find more intriguing is that he fails to refer to his own judgment in Reefcor Limited v. Les Generals Des Carriers Et Des Mines Exploitation Gecamines (High Court for Zambia, Kitwe District, (11 June 2007) (2002/HK/526) where he allowed for direct registration, a judgment rendered by the High Court of South Africa despite the respondent arguing that South Africa is not one of Her Britannic Majesty’s dominions, neither is it a British protectorate nor a mandated territory and that it does not have a reciprocal agreement with Zambia and did not fall under the Foreign Judgment (Reciprocal Enforcement) Act Chapter 76 of the Laws of Zambia.
Judge Hamaundu after observing that no proof was rendered in court to show that South Africa had not been added to a list of countries covered by the Foreign Judgment (Reciprocal Enforcement) Act, held: “assuming that South Africa is not one of the scheduled countries, I wish to cite the case of Mileta Pakou and Others v. Rudnap Zambia Limited (1998) ZR 233”.
“He applied the following passage from the Supreme Court Judgment in Mileta Pakou: –“The law which applies in Zambia in default of any statute is the common law of England.
At Common Law, the judgment of any competent foreign court for a sum certain is enforceable as a simple debt on the basis of an implied obligation, which arises on the part of the judgment debtor. However, the foreign court must have had the necessary jurisdiction.”
The Judge then dismissed the application to set aside the Registration. Essentially, the Judge sanctioned the direct registration under CAP 76, of the Judgment on the basis of Common Law.”
He stated that TIZ was baffled that judge Hamaundu elected not to be bound by his own precedent.
“We encourage your office to pursue this issue to its logical conclusion. It is important to note that the Zambian Government has already used the London High Court judgment to extract payments from defendants Atan Shansonga, Bimal Thaker, B.B Thanker, Cave Malik and their insurers in the United Kingdom,” Lungu stated.
“Properties in Belgium were recovered with a gross value of US$8 million in a claim against four (4) European defendants based on the same allegations of conspiracy to defraud as was maintained against Dr. Chiluba and other Zambian defendants.
The Zambian Government has registered the same Judgment against Raphael Soriano in the Belgian Courts and resisted an application by Raphael Soriano challenging that registration.
“Given this new development, we believe that your office on behalf of the Zambian Government will inform the Zambian people of the next steps as soon as possible. TIZ is of the view that such an important pronouncement on the law as to reciprocity of UK Judgments must go all the way to the Supreme Court.
As far as we are concerned, this matter is far from concluded and it will be a pity if Government abbreviates this process for other reasons other than legal ones.”
He said it was TIZ’s unwavering position that this is a matter of immense public interest and it cannot be abandoned at this hurdle.
“It is thus unimaginable that your good office can abandon the cause at this stage given the rather large judgment sum which should be recovered from the judgment debtors. Thanking you in anticipation for your next steps in this important matter,” stated Lungu.
But commenting on the demand by LAZ to appeal against judge Hamaundu’s decision to dismiss an application by the state to register the London judgment, Mwaanga, who is MMD parliamentary chief whip, said the government’s position not to appeal meant that they had studied the judgment and concluded that there was no basis on which to appeal.
“Even that view not to appeal has got to be respected as well, because they are the ones who are competent to make that decision. It is the state that wanted the judgment to be registered. They are the ones who spent hours and money working on this case,” Mwaanga said.
“But on the basis of the judgment, they have studied the judgment obviously and they have come to that conclusion. And that view has got to be respected.”
Mwaanga said he respected the outcome of the judgment.
He said appealing was a matter for the government to decide.
“If they feel that there are reasonable grounds for appeal, I am sure they would have done so already. But from what I have been able to read in the media they have decided that they are not ready to appeal against the decision, and I respect that as well,” Mwaanga said.
“If the judge makes a far reaching decision, one has to study it very carefully, study its implications and from what I have been able to read as a lay man, his decision was quite well founded, unless someone is able to come up with something to the contrary. Unfortunately I am not the one who makes the decisions as to whether there should be an appeal or not.”
Mwaanga said he had read LAZ’s position on the matter but that was their view.
“There are also other views of prominent lawyers on both sides. Law you know is not an exact profession where all lawyers will agree on how the law should be interpreted.
So the LAZ view is one view, the judge has got another view,” Mwaanga said. “There are other people who have got other views. And it is part of our democratic dispensation to respect each other’s views.”
Mwaanga said there were many legal interpretations, adding that one could not say there was one view, which everybody should accept.
Mwaanga said the question of whether or not to appeal should be left to those who were competent.
In a press statement dated August 20, 2010, LAZ demanded an appeal against judge Hamaundu’s decision to throw out an application by the state to register the London judgment against Chiluba and others.
LAZ argued that the decision on the matter should be left ultimately to the Supreme Court to decide.
“For the purpose of creating an appropriate jurisdiction in law, the Attorney General should appeal to the Supreme Court so that there is finality in the matter. The judgment of the High Court has far reaching implications and therefore there is need for clarity in this area of the law,” stated Lungu. “In the alternative, the Attorney General is encouraged to consider commencing a fresh course of action under common law.
In his judgment, the Judge of the High Court alluded to this aspect and the Association is of the view that the Zambian government through the Attorney General should take all steps to ensure that finality is brought to this matter that has been costly not only to the government but the people of Zambia.
Labels: ABYUDA SHONGA, EVANS HAMAUNDA, FREDERICK CHILUBA, GOODWELL LUNGU, JUDICIARY, STEPHEN LUNGU, VERNON MWAANGA
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LAZ demands appeal against High Court’s decision on London judgment
By Patson Chilemba
Fri 20 Aug. 2010, 14:10 CAT
THE Law Association of Zambia has demanded an appeal against High Court judge Evans Hamaundu's decision to throw out an application by the state to register the London High Court judgment against Frederick Chiluba and others.
The position by LAZ comes in the wake of judge Hamaundu's decision to throw out an application by the state to register the London judgment that found Chiluba and others liable for theft of about US$46 million public funds.
In a press statement dated August 18, 2010, LAZ argued that the decision on the matter should be left ultimately to the Supreme Court to decide. "The recommendation of the Committee is that LAZ endeavours to recommend to the stakeholders in this issue that the decision of the Honourable Judge be appealed against. Even if the Judge was correct in his view, and we opine that he was not, a decision of this magnitude must, for the sake of the development of jurisprudence on the issue, be left to the Supreme court to ultimately make," LAZ stated.
"The Committee also recommends that council review the arguments prepared by Professor Muna Ndulo in this matter which provide insight on the issues at play. And so we opine." LAZ stated that there were two issues that arose from the decision of the Judge set out above. The association stated that the High Court of Zambia has had occasion to consider the Registration of Foreign Judgments from a country in respect of which no order extending the application of part II of CAP 76 to Judgments from the Courts of that Country had been made. "In the case of Reefcor Limited v. Les Generals Des Carriers Et Des Mines Exploitation Gecamines (2002/HK/526) the Hon. Mr. Justice Hamaundu, upon an application to set aside the registration of a judgment rendered by the High Court of South Africa being made before him, observed that: 'assuming that South Africa is not one of the scheduled countries, I wish to cite the case of Mileta Pakou and Others v. Rudnap Zambia Limited (1998) ZR 233.'
“The law which applies in Zambia in default of any statute is the common law of England. At Common Law, the judgment of any competent foreign court for a sum certain is enforceable as a simple debt on the basis of an implied obligation which arises on the part of the judgment debtor. However, the foreign court must have had the necessary jurisdiction. The Judge went on to dismiss the application to set aside the registration of the South African Judgment," LAZ stated. LAZ stated that in his judgment of August 13, 2010, Judge Hamaundu did not refer to the earlier judgment he had rendered on a similar issue. The association argued that having clearly departed from the decision he made in the Reefcor case, judge Hamaundu was obliged to distinguish the latter case from the one involving the London Judgment. "By failing to do so, and yet arriving at a contrary conclusion in the later case, he contravened the well known doctrine of stare decisis, and, on this basis alone, his Judgment is liable to be reversed on appeal," LAZ stated. LAZ stated that in any event, the Supreme Court has held in two decisions cited by judge Hamaundu in his Judgment of August 13, 2010 that decisions of the Superior Courts of the United Kingdom were enforceable in Zambia. LAZ argued that judge Hamaundu was obliged to follow the guidance of the Supreme Court. "The Judge's Interpretation of Section 9 of Cap 76. Section 9 of the Foreign Judgments (Reciprocal Enforcement) Act provides thus:-
(1) The President may by statutory order direct that this Part shall apply to Her Britannic Majesty's dominions and to judgments obtained in the courts of the said dominions as it applies to foreign countries and to judgments obtained in the courts of foreign countries, and, in the event of the President so directing, this Act shall have effect accordingly and the British and Colonial Judgments Act, Chapter 16 of the 1959 Edition of the Laws, shall cease to have effect except in relation to those parts of the said dominions to which it extends at the commencement of the order," LAZ stated.
"(2) If, at any time after the President has directed as aforesaid, an order is made under section three extending this Part to any part of Her Britannic Majesty's dominions to which the British and Colonial Judgments Act, Chapter 16 of the 1959 Edition of the Laws, extends as aforesaid, the said Act shall cease to have effect in relation to that part of Her Britannic Majesty's dominions, except as regards judgments obtained before the commencement of the order.
"(3) References in this section to Her Britannic Majesty's dominions shall be construed as including references to any British protectorate or protected state and any territory in respect of which a mandate on behalf of the League of Nations has been accepted by Her Britannic Majesty." LAZ stated that the association's view of this provision of the law was that:
“(a) An order of extension under subsection one could issue in respect of Her Majestyís Dominions not already subject to such an order in terms of the British and Colonial Judgments Act. The latter Act would then not apply to those territories;
(b) In terms of subsection two, an order of extension could be made to apply the provisions of part II to Her Majesty’s Dominions already covered under the British and Colonial Judgments Act (this necessarily includes the United Kingdom)." LAZ stated that the only question was if the order made by the Governor in 1958 an order within the meaning of section 9(2)
"The order made by the Governor is in these terms. It is hereby directed that Part II of the Act shall apply to Her Britannic Majesty's dominions and to judgments obtained in the courts of the said dominions as it applies to foreign countries and to judgments in the courts of foreign countries." LAZ stated that the reading of this order showed that on its face, it was intended to apply to section 9(2).
The association stated that the Order contained the expression ìas it applies to foreign countries and to judgments in the courts of foreign countriesî.
"This is in terms of section 3 of the principal Act, which is referred to in section 9(2) of the Act. The clear intention of the legislator is to bring all judgments of her Majesty’s Dominions including the United Kingdom under the ambit of the Ordinance (now the Act), and thus rendering the British and Colonial Judgments Act irrelevant. Indeed that Act was repealed the very next year after the Governorís Order," LAZ stated. LAZ stated that the interpretation was vindicated by the fact that in terms of the extension orders issued by the Governor for Gilbert and Ellice Islands and the British Solomon Islands Protectorates, these referred to specific territories and clearly fall under section 9(1).
"The interpretation the Judge takes of this section and the Order under it defies the golden rule of statutory interpretation. By the Judge's reasoning, it was not possible after 1959, the year the British and Colonial Judgments Act was repealed, to enforce a Judgment from the United Kingdom in Northern Rhodesia. In effect, the Judgments of the Colonial Master were not enforceable in the Colony, Northern Rhodesia," LAZ stated. "This we submit is an absurdity. The legislator is deemed to act reasonably, and to that extent, the order of 1958 clearly applied to the United Kingdom; unquestionably one of her Britannic Majesty's Dominions. That is the interpretation of the law which avoids absurdity, and which in our view is clear from the face of the section and the order." LAZ gave a background on the London judgment involving Chiluba. The association stated that on July 9, 2007, the Attorney General of the Republic of Zambia (the ‘Judgment Creditor’) applied for and obtained ex parte, out of the High Court of Zambia an order for leave to register, in the Zambian High Court, a judgment which the judgment creditor obtained in the London High Court of Justice (the “London Judgment”), in the United Kingdom against Dr. Frederick Jacob Titus Chiluba and other defendants (the “Judgment Debtors”). LAZ stated that the Judgment Debtors applied to set aside the order granting leave and the application ultimately fell to the Hon. Mr. Justice Hamaundu to determine. LAZ stated that on August 13, 2010 justice Hamaundu upheld the Judgment Debtors’ application and set aside the order granting leave. "In so doing, the Judge held, in sum, that:- 1 The British and Colonial Judgments Act was enacted, primarily, to provide legislation by which judgments of Superior Courts in the United Kingdom would be registered in Northern Rhodesia.
Hence, Section 3 thereof provides for the registration of judgments obtained in the High Court in England or Ireland or in the Court of Session in Scotland. It was not necessary for the Governor of Northern Rhodesia to issue any order extending the Act to the United Kingdom before judgments of Superior Courts in the Kingdom would be considered for registration. However, the Governor had a discretion to extend, by declaration, the application of the Act to any of Her Majesty's dominions outside the United Kingdom" After the repeal of the British and Colonial Judgments Act in 1958 (by the Foreign Judgments (Reciprocal Enforcement) (Amendment) Ordinance No. 12 of 1959) which was the Act on the basis of which Judgments of the United Kingdom could be enforced in Zambia, Judgments of the United Kingdom could not and still cannot be enforced in Zambia. LAZ stated that In the Judge's view, the Foreign Judgments' (Reciprocal Enforcement) Order issued by the Governor of Northern Rhodesia in 1958 under the Foreign Judgments (Reciprocal Enforcement) Ordinance, (which is now the Foreign Judgments (Reciprocal Enforcement) Act Chapter 76 of the Laws - pursuant to Statutory Instrument No. 152 of 1965) related to Her Britannic Majesty's dominions outside the United Kingdom and not to the United Kingdom itself.
"The Judge's conclusion at (3) above springs from his interpretation of section 9 of the Foreign Judgments (Reciprocal Enforcement) Ordinance, (which is now the Foreign Judgments (Reciprocal Enforcement) Act Chapter 76 of the Laws)," stated LAZ. "The Judge contends that on a reading of that section, the Governor (and subsequently the President) would have required to issue an order under section 9(2) of the Ordinance/Act extending the application of part II of the Ordinance/Act to the United Kingdom after the repeal of the British and Colonial Judgments Act before a Judgment of the United Kingdom could be enforced post 1959 when the latter Act was repealed."
Labels: EVANS HAMAUNDA, FREDERICK CHILUBA, LAZ, STEPHEN LUNGU
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Chiluba’s status as thief will never change – Sata
By Patson Chilemba
Tue 17 Aug. 2010, 04:00 CAT
PATRIOTIC Front (PF) president Michael Sata yesterday charged that the decision to throw out an application by the state to register the London judgment does not change former president Frederick Chiluba’s status as a thief in the eyes of Zambians.
And Law Association of Zambia (LAZ) president Stephen Lungu said LAZ has written to the Attorney General seeking an urgent meeting with him over the way forward, following the throwing out of the application.
Commenting on Lusaka High Court judge Evans Hamaundu’s decision to throw out an application by the state to register the London High Court judgment that found Chiluba and others liable for theft of about US $46 million public funds, Sata said Chiluba could not claim victory because, while he has been set free legally by judge Hamaundu, the fact still remained that he stole from Zambians.
“It will be his word against the people of Zambia’s words because we know who Chiluba was. We know how many suits he had. The people are talking about the facts; the courts are talking about the legalities, whatever the legalities. We know how many suits Chiluba had when he came to power,” Sata said. “So those who don’t know Chiluba can be fooled by what is coming from the courts.”
Sata said things were now becoming predictable in as far as the dispensation of justice was concerned.
He said those who were close to President Rupiah Banda found it easy to get away with anything.
“If you are not close to Banda life becomes tough,” Sata said.
Asked if the decision by judge Hamaundu would wipe away the public’s view of Chiluba as a thief, Sata responded: “It doesn’t change anything. What we are trying to show is we are rigging the truth.”
Sata said President Banda was rigging the truth, adding that he was worried about next year’s elections with the conduct of the President.
He said the manner President Banda was going about handling matters involving Chiluba did not give anybody the confidence about democracy in the country.
Asked if government should appeal the High Court outcome, Sata said whether the government appealed or did not appeal, the matter would be heard by the same judiciary.
“It’s entirely up to government, but which government is going to appeal? Rupiah Banda’s government? Is it Rupiah Banda’s government, because George Kunda who went to prosecute in London is a different George Kunda who is here now, he is only prosecuting Mufumbwe because his boss says so,” he said.
Sata said Zambia was abrogating its international standing.
“I remember when I was in government we passed one law where prisoners can be transferred or the other countries can take over the offences. But now with what is going on, it will be very difficult for other governments to cooperate with Zambia,” Sata said.
“And somebody says ‘we are not a colony’, but our laws today are derived from the United Kingdom and we are always quoting English laws. So for somebody to say ‘we are not a colony’, that is beyond cheap thinking.”
Sata charged that Vice-President Kunda was an embarrassment to the legal profession. He said Zambians did not know how many lies Vice-President Kunda had told over the matter, but posterity would judge him.
“George Kunda is still Minister of Justice, so all the acquittals are going to him. Is he a Minister of Justice or the minister of injustice? I think we must change the title to Minister of injustice,” said Sata.
And Lungu said LAZ would want to meet Attorney General Abyud Shonga at the earliest possible time to discuss the matter and the various options that would be available.
Asked if one of the options was to do with appealing, Lungu responded: “Those are the various options that will be looked into. We know that the Attorney General will have to look at the judgment, read it, and understand it before he can make a decision. We believe that this being a matter of public interest, we need to liaise with the Attorney General at the earliest possible time.”
Lungu said LAZ had sought immediate audience because of the interest the association had in the matter. He said LAZ was following the matter with keen interest.
Labels: CORRUPTION, FREDERICK CHILUBA, MICHAEL SATA, STEPHEN LUNGU
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LAZ calls for proactive steps to curb political violence
By Masuzyo Chakwe
Wed 19 May 2010, 04:01 CAT
THE Law Association of Zambia (LAZ) has said it will be folly to presume there is no risk of a repeat of violence in the 2011 elections looking at what happened in the Mufumbwe by-election.
Commenting on the violence that characterised the recent Mufumbwe by-elections and the language being used by politicians, LAZ president Stephen Lungu said violence of any nature militates against the conduct of a free and fair election.
He said it had the undesirable effect of disenfranchising the citizenry.
"If loss of life is an incident of an election, as we have witnesses from the Mufumbwe by elections, citizens will shun the electoral process. The 2011 general elections are within close proximity and it would be folly of us to presume there is no risk of a repeat of the violence that was reported on a larger scale," he said.
"We must as a people take proactive steps to curb against a repeat of what happened in the Mufumbwe by-election. We must as a people make a deliberate decision to say no to violence of any kind. We must take all steps necessary to ensure that the incidents that happened in Mufumbwe in the last by-elections do not repeat themselves. We must decide to act now to ensure that these vices do not recur in this our beloved country."
Lungu said as an association, LAZ recognised the fact that to maintain the peace that guarantees freedom, there was need to invest in peace-making strides today and now, not tomorrow.
"We must act from the top and start from our leaders. We must see a day when the election language our leaders employ is not personal but that of national development and the publics direct beneficial interest. We must strive to ensure as a people that the exchange of vulgar and abusive language during campaigns and generally acts to demean and belittle each other publicly come to an end," he said.
He said political leaders were the custodians of a better tomorrow.
Lungu said it was imperative that reciprocal respect was exchanged between all political leaders irrespective of party and hopefully, this would trickle down to the grassroots of their respective parties to avoid the negative slurs that had culminated in the violence that had rocked the electoral process as well as political gatherings in the recent past.
He said abusive language, derogatory remarks and publicly demonstrated violence sent a wrong signal to the younger generation who were the leaders of tomorrow.
"Our message and the tomorrow we would like to see for Zambia is a place where all our political leaders show us that no matter the situation, there is always a peaceful way out because we as a people at whatever level in society sow seeds of discord in the nation, it is only us the citizens that ultimately suffer," he said "We therefore join all right meaning members of the public in condemning in the strongest terms the recent violence that characterised the by election in Mufumbwe. We strongly support the calls that everyone who is found wanting in perpetuating violence is brought to book and dealt with in accordance with the law."
Lungu also supported the call that the Electoral Code of Conduct be immediately amended to give more authority to the Electoral Commission of Zambia to effectively deal with vices such as the ones seen in the last elections.
He said as an organisation, LAZ had decided that they would endeavour to seek audience with political leaders for further discussion on the quest for peace everyone wanted guaranteed by 2011.
Lungu said LAZ had watched with much concern, the recent trends in the country that were beginning to impinge on the guaranteed freedoms and liberties of the individual.
"We feel that posterity will judge us harshly if we remain silent in the face of the myriad of violent trends and acts currently assailing our people and associated to the lection campaign," he said.
Lungu said the enjoyment of fundamental freedoms and liberties by the citizens of any country was the very essence of democracy.
He said freedom of expression, the rights to associate and assemble were a prerequisite to a functional democracy.
Lungu said those rights and freedoms must be safeguarded jealously and citizens must not suffer adverse consequences for exercising and enjoying them.
He said the SADC protocol on the conduct of free and fair elections prescribes that elections must be held in conducive and enabling environment.
"We trust that all concerned shall learn from their mistakes and be more sensitive to the human rights of all Zambian citizens irrespective of their political affiliations," said Lungu.
Labels: LAZ, POLITICAL VIOLENCE, STEPHEN LUNGU
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Why they removed Nchito from corruption prosecutions
By The Post
Mon 10 May 2010, 04:10 CAT
NO one is indispensable. Not even the most meritorious individuals are indispensable. We knew the day would come when this government would dispense with the prosecution services of Mutembo Nchito. And this doesn’t require much disquisition.
Mutembo could have been removed from being a public prosecutor a month, a year or so after his appointment. But Mutembo has served as a public prosecutor since early 2002 after having previously been appointed to prosecute matters on behalf of the Anti Corruption Commission in 2001.
This was in matter involving Katele Kalumba, Peter Machungwa and the late Godden Mandandi over what came to be known as the K2 billion scandal.
Mutembo successfully represented the Anti Corruption Commission and Machungwa and Mandandi were found wanting and Katele was reprieved.
All this was under the presidency of Frederick Chiluba. In late 2001, the Anti Corruption Commission retained Mutembo to prosecute other corruption matters. And nine years later, Mutembo has still been prosecuting corruption matters on behalf of the state.
Given this background and what one may legitimately call a very impressive record of corruption prosecution, the question one might be forced to ask is: why have Mutembo’s services been terminated now, not yesterday, not last year, or the year before and so on and so forth?
This question is important because it may help put matters in their proper context or perspective and remove them from the realm of an individual, who as we have already pointed out, will always be dispensable.
What will not be dispensable are the issues that were being pursued in the corruption cases Mutembo was handling. And the termination of Mutembo’s duties as a public prosecutor should be looked at from this angle.
Corruption is a very big problem in Zambia. No one can deny that many of the problems that we face in accessing public services and enjoying good infrastructure are a result of corruption in the public sector. Successive governments have been crippled by corruption.
A political culture which accepts corruption as a normal occurrence has been engrained in our governments. From the very beginning the founding president of this country, Dr Kenneth Kaunda, was very concerned about the cancer of corruption, nepotism, tribalism and other corrupt uses of power that had begun to show themselves.
Dr Kaunda tried very hard to fight these evils and was very decisive in taking action against them. He never hesitated to part company with comrades, and some of them very dear ones, whenever they strayed into the realm of corruption and other abuses of power for personal gain. Dr Kaunda left government almost penniless, relying only on the pension he believed the Zambian people were going to give him.
And in this line, Dr Kaunda created a number of institutions to deal with corruption. He gave us the Anti Corruption Commission in 1980, Special Investigation Team for Economy and Trade (SITET), and towards the end of the 1980s, he created the Drug Enforcement Commission.
For all the mistakes, for all the failings – which are many – no one can take anything away from this comrade and his determination to fight crime in our country. As far as corruption is concerned, he tried to brook no nonsense.
Mirror this against Frederick Chiluba’s legacy. Chiluba went into government and immediately started stealing. The 10 years of his tenure saw the decline in the respect of law and public property.
The civil service was stripped of its professionalism. Corruption became an accepted engagement for senior public officers. Corruption was so commonplace that to this very day, it is an accepted norm and most of those who served with Chiluba see no wrong that they did in stealing public resources and abusing their offices for personal gain. They even laugh at people like Dr Kaunda and his generation who left government without amassing wealth, and sometimes without even a house.
They look at them as fools who were not intelligent enough to use their public offices for self-enrichment. This is what Chiluba reduced this country to. For the most part, Chiluba ran a kleptocracy where there was no difference between public resources and personal resources.
If this country is going to make any meaningful progress, this culture has to be exorcised and banished. A time must come when every public officer realises that everything that he does in the name of the people is a subject of accountability. This is something that Chiluba destroyed. Many people who worked for him were reduced to doing things that they knew to be wrong but they did them nevertheless to remain in good books with him and sometimes to accrue some personal benefits.
The fight against corruption that Levy Mwanawasa engaged in was a meaningful attempt to try and bridge the gap that was created by Chiluba from where Dr Kaunda had left things. Dr Kaunda took the fight against corruption and the struggle to build a nation with decency, values and principles to very high heights but Chiluba brought it down. Levy, albeit in a manner that was far much less resolute than that of Dr Kaunda, tried in a new time and in a new way to restore that decency.
This is the context into which the work of the task force on corruption fell. Clearly, its task was to deal with the corruption that has been created in our country by Chiluba and bring back things to where our liberators, the founders of this Republic had left them. This meant that Levy had to inevitably take the fight against corruption to Chiluba. And things moved, albeit in a slow way, but they moved. Chiluba was the bulwark of all that was rotten, of all that was corrupt under the 10 years of his presidency and probably beyond it.
Levy’s understanding of the challenge that he faced was not always clear, it was not as clear and resolute as that of Dr Kaunda. We say this because sometimes Levy kept very dirty and corrupt people in his government, people with a traceable history of being permanently wedded to corruption. This explains why immediately after Levy’s death, some of his closest and most senior lieutenants have embraced and returned to Chiluba and his way of doing things, his corruption.
We should not be surprised that no effort is being spared to reverse any success that Levy may have scored in fighting corruption. These people don’t like the precedents that have been set and will do everything to wipe them out so that they are never used against them in future.
Rupiah Banda has chosen the way he wants to be remembered. Rupiah had three choices: either to go the Dr Kaunda way, the Chiluba route or adopt the Levy methods. Rupiah had worked under Dr Kaunda’s government and it’s not a secret that when it comes to the core values, principles and methods of that regime, most of the times he fell short of what was acceptable. And Rupiah was Levy’s vice-president and saw what Levy was doing.
It’s clear Rupiah did not agree with what Levy was doing on corruption and that’s why he is undoing it today. Rupiah did not serve under Chiluba’s government but he knew very well what Chiluba had done and how he had done it.
And today the choice that Rupiah has made is that of following Chiluba’s path – a corrupt path. With the three choices that Rupiah had, he has made it clear that Chiluba is his mentor – the “damn good president” – whose methods he admires and he is emulating. For whose benefit? Corrupt methods are for personal benefit and not for the people’s progress and well-being.
Clearly, what this means is that by embracing Chiluba and his corrupt methods, Rupiah has stopped in earnest the fight against corruption. And all the efforts and initiatives that were taken by Levy, in line with the values and standards set by Dr Kaunda, have to be reversed, have to be abandoned, have to be stopped.
If we want to understand the significance of the removal of Mutembo from prosecuting corruption at this stage, we need to understand where Rupiah is headed.
There are many appeals of corruption cases involving Chiluba’s friends that are yet to be heard by our courts. Rupiah and his minions do not want these appeals to go in favour of the people at the expense of their friends. They will do everything to frustrate and bungle these appeals in the same way they stopped the appeal against Chiluba and ensure that their friends go scot-free without leaving any dangerous precedent that may be used against them in future.
In the same way they used Director of Public Prosecutions Chalwe Mchenga to stop the appeal against Chiluba’s questionable acquittal, they will use him again to frustrate and bungle the appeals that are now in court and those to come from matters yet to be decided.
And it is the same way they have used Mchenga to remove Mutembo so that these matters that had taken so many years and effort to master are lost. There are also matters that are yet to be prosecuted like that of Xavier Chungu. Given their conduct, can anyone reasonably expect them to prosecute Chungu let alone to seriously, efficiently and effectively do that in a manner that will secure a conviction?
As we stated at the beginning of this editorial comment, no one is indispensable, not even Mutembo for that matter despite his near-excellent prosecution of the corruption cases that were given to him. But that is not the point here. The point is that we now have a government that has come out in the open and declared its allegiance to the corrupt and their rotten ways. It is not the first time that they are trying to frustrate these cases in that way.
They have tried to frustrate these cases by doing all sorts of things. As for Mutembo, they tried to hound him out by making all sorts of unfounded allegations against him. Now that all their schemes have failed, they have been left with no choice but to terminate his contract, something they could have done a long time ago if their actions were honest and sincere. They tried the dishonest routes but failed.
Anyway, our people know what they stand for and understand why the corrupt need to be defended by them. If they think they will get away with their corruption by protecting their corrupt friends, they have got it all wrong – the Bembas say umulandu taubola.
Labels: LAZ, MUTEMBO NCHITO, STEPHEN LUNGU, TASK FORCE
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LAZ commends computerisation of national judicial system
Monday, March 29, 2010, 10:58
Law Association of Zambia President Stephen Lungu (left) talks to Transparency International Zambia Executive Director Goodwell Lungu after the Supreme Court delivered a ruling in former President Frederick Chiluba
THE Law Association of Zambia (LAZ) has commended Government and the judiciary for computerisation of the judicial system in the country.
LAZ president said in an interview yesterday that the computerisation of the judiciary will benefit the public, as it will strengthen the way cases are handled.
Mr Lungu said the development will also ensure speedy access to justice by members of the public.
“The launch of the computerisation of the judicial system is very good. It will provide for speedy access to justice,” he said.
Mr Lungu said his association is happy with the development.
He said the judiciary is making significant strides in speeding up the administration of justice.
Mr Lungu said apart from the computerised system, the judiciary last year launched the small-claims court in an effort to reinforce the administration of justice.
He hoped the project to computerise the system will continue and be sustainable.
“As lawyers we are happy. Government and the judiciary should be commended for launching the computerisation of the judicial system. We hope the process will continue and that it will have sustainability,” Mr Lungu said.
He called on all stakeholders to ensure the project continues.
Vice-President George Kunda launched phase one of the computerisation of the judicial system in Lusaka on Friday.
Mr Kunda said the country will be the first in Africa to use such a system.
He said the first phase will see the computerisation of the Supreme, High and Magistrates courts.
The project has been made possible by a grant from Investment Climate Facility for Africa (ICFA) in partnership with Government.
The grant of US$500,000 from the ICFA represents 75 percent of the total cost of the project.
[Zambia Daily Mail]
Labels: COURTS, ITC, JUDICIARY, STEPHEN LUNGU
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Govt shouldn’t dilly-dally on Chiluba’s judgment – LAZ
By Patson Chilemba and Moses Kuwema
Sat 13 Feb. 2010, 04:01 CAT
LAW Association of Zambia (LAZ) president Stephen Lungu yesterday asked the government not to dilly-dally filing submissions on Frederick Chiluba’s London High Court judgment because the Supreme Court has set a good base for them to do so.
Commenting on the Supreme Court's decision to dismiss an appeal by former president Frederick Chiluba, Faustin Kabwe and Aaron Chungu on preliminary issues relating to the registration of the London High Court judgment on Thursday, Lungu said delaying the submission would defeat the whole purpose of the directive given by the Supreme Court to do so.
"They Supreme Court have set a very good base, and understand what I mean by a very good base. Very good base in dismantling the preliminary application that was before it in relation to the London judgment. It is now entirely upon the government to exercise its role effectively in ensuring that the directives given by the Supreme Court are followed," Lungu said. "In its judgment, the Supreme Court has said that the parties to this matter should file their submissions before the High Court so that the High Court can now finally make a determination on the London judgment."
Lungu said it was his considered view that the Supreme Court exhibited its independence over the matter.
"There have been statements that have been attributed that government does not want to see this London Court judgment finalised, and therefore all that has been going on has been a way of delaying the process and that the arguments that have been advanced are that the government does not want to enforce this judgment against president Chiluba," Lungu said.
"But what the Supreme Court has done is, the Supreme Court has looked at this matter objectively, has determined this matter looking at the provisions of the law that exist in Zambia, and has made a determination that the High Court judge was not wrong when he dismissed that preliminary application."
The Supreme Court on Thursday dismissed an appeal by Chiluba, Kabwe, and Chungu on preliminary issues relating to the registration of the London High Court judgment.
This is in a matter before Deputy Chief Justice Ireen Mambilima, Supreme Court justices Dennis Chirwa and Marvin Mwanamwambwa where Chiluba, Kabwe and Chungu appealed against a ruling of Lusaka High Court judge Evans Hamaundu refusing to hear their preliminary issues separately from the main case.
London High Court judge Peter Smith on May 4, 2007 found Chiluba and 19 other defendants liable of having defrauded the Zambian government out of millions of Kwacha ordering them to pay back the money.
And commenting on the debate surrounding Chiluba and the striping of his benefits because of his involvement in politics, Lungu wondered why Chiluba's activities always attracted public outcry.
Lungu said the involvement of former presidents in active politics was not good for the political climate in the country.
“The extent of the activities also needs to be looked at but one question that I have to ask is why is it that there is nothing being said about Kenneth Kaunda? Most of the time these issues have to do with Chiluba,” Lungu wondered.
He said it was not good for a former president to be accosted by members of the public because of his activities. Lungu said the prevailing situation was not good for the country's democracy.
“Why should a former president involve himself in active politics? Why do such things? Even though we are at liberty to do what we what, but we need to be mindful of the consequences that such activities have on society,” Lungu said. “What message are you telling the people on the streets out there if you start engaging in active politics?”
Labels: CHILUBA, LAZ, STEPHEN LUNGU
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Kunda should be ashamed of his hypocrisy – Sata
By George Chellah
Wed 20 Jan. 2010, 04:00 CAT
PATRIOTIC Front (PF) leader Michael Sata yesterday said Republican Vice-President George Kunda is an aptitude political mercenary who should be ashamed of his hypocrisy.
And the Law Association of Zambia (LAZ) president Stephen Lungu said LAZ still stands by the resolutions of the 1996 extraordinary general meeting when Vice-President Kunda was its chairman.
Commenting on LAZ's resolutions, which were passed at an extraordinary general meeting on August 10, 1996 when Vice-President Kunda was the association's chairman, Sata said it was interesting to note that Vice-President Kunda has changed his position on certain issues that he fully supported in 1996 when he was at the helm of LAZ.
"Chifumu Banda, George Kunda and several lawyers including Mwangala Zaloumis, they are members of LAZ and they are part and parcel of that institution. In 2005, when PF went to say they wanted 50 per cent plus one, we were ignored. George Kunda was there and he didn't support us.
Now if they can ignore their own resolutions with impunity, what do you expect?" Sata asked. "George Kunda, from what we are seeing now, everything from that LAZ resolutions of 1996... him not honouring the meeting which he chaired as LAZ chairman, then you start wondering, is he a political mercenary or is he misleading or misguiding Rupiah Banda as he used to do with Levy Mwanawasa?"
Sata said there was need for Vice-President Kunda to be consistent and sincere. He said Vice-President Kunda was an aptitude political mercenary that should be ashamed of his hypocrisy.
"He is a political mercenary, an aptitude political mercenary who should be ashamed of everything he is doing because he is not sincere and he was not sincere to Levy Mwanawasa," Sata said. "And you can't blame Rupiah for not honouring the legacy of Levy Mwanawasa. George Kunda was the legal architect behind Levy Mwanawasa.
George Kunda worked for Levy Mwanawasa and Mwanawasa made George Kunda what he is today. But he is not ashamed, he cannot protect the legacy of Levy Mwanawasa. He is just there. We don't know what he is there for."
And Lungu said LAZ still stood by its resolutions of the 1996 extraordinary general meeting.
"I will still stand by the position taken by LAZ in 1996 because some of the issues raised in 1996 are some of the issues that even LAZ submitted to the National Constitution Conference (NCC) in this constitution-making process," Lungu said.
According to the resolutions that were passed at an extraordinary general meeting in August 1996, which were later issued and signed by the then chairman Vice-President Kunda, LAZ resolved that: "Article 34 (8) which provides that a "Returning officer shall declare a candidate who receives the highest number of votes cast to have been dully elected as President", departs from the long established fundamental requirement of law since independence in Zambia that a Presidential candidate must receive more than 50 per cent of the valid votes cast. It is inconceivable how a President who fails to marshall more than 50 per cent of the valid votes cast can have legitimacy to govern."
LAZ further noted that: "While the association acknowledges the fact that the government removed from the Constitutional Bill clauses which would have eroded the independence of the judiciary, actual threats against judges have not abated; going by the recent public statements and pronouncements by government/political leaders. Some of these wild public outbursts on the judges have tended to erode the autonomy, impartiality and tenure of the judges."
On the Bill of Rights, LAZ resolved that: "Part III of the Constitution of Zambia Act Number 1 of 1991, which contains the Bill of Rights has been illegally altered or amended without holding a referendum as prescribed under Article 79 (3) of the same 1991 Constitution, for example, whereas Article 21 (1) of the 1991 Constitution provides 'Except with his own consent, no person shall be hindered in the enjoyment of his freedom of assembly and association, that is to say his right to assemble freely, and associate with other persons and in particular to form or belong to any political party, trade union or other association for the protection of his interests.'
Article 129 of the 1996 Constitutional Amendment on the other hand provides that: 'A person shall not while remaining a chief join or participate in partisan politics'."
Labels: GEORGE KUNDA, LAZ, SATA, STEPHEN LUNGU
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Attacking Lungu is wicked intimidation - Prof Hansungule
By Ernest Chanda
Sat 26 Dec. 2009, 04:01 CAT
Law Association of Zambia (LAZ) president Stephen Lungu
PRETORIA-based Professor of law Michelo Hansungule has described the government’s attacks on Law Association of Zambia (LAZ) president Stephen Lungu as wicked intimidation.
In an interview from his base in South Africa, Prof Hansungule encouraged LAZ to continue protecting the people of Zambia.
“LAZ and Stephen Lungu should continue developing Zambia through their fearless voices on matters of public interest. MMD must understand that statements from their ministers against Lungu in particular and LAZ in general is wicked intimidation which is very disappointing really for a party which came to power on the bandwagon of democracy,” Prof Hansungule said.
“In Zambia, we need not just LAZ voice but a million voices of free men and women including children to develop. No country where the government intimidates its people has developed. Look around at history and tell me one which did. The different views and discourses especially against government is the raw material by which development is made.”
Prof Hansungule wondered why the government should call for Lungu’s blood when he was operating professionally.
“It is amazing how politics make people drunk with power. Power corrupts, absolute power corrupts absolutely. It's a long time since a wise man uttered these words. Today, they sound exactly like they were uttered this morning. Why should our politicians itch for Stephen Lungu's blood? You want the blood of someone who is saying the right thing?
What exactly is wrong with us humans?” he asked. “The Law Association of Zambia has a right to comment on issues of public interest in the way they not MMD see it. I thought the MMD should surprise us at least once by coming out to congratulate Stephen and his colleagues for being true to themselves and doubt DPP Mchenga. More than forty years after independence, the ruling party still cannot tolerate different views! When are we going to 'grow up' politically and celebrate different and opposite views?”
He said there was nothing wrong with people questioning Chiluba’s acquittal since the former president plundered public resources.
“The right of participation is enshrined in the Constitution and it is so in all major political systems. A key element of this is the freedom of expression and I am glad deputy ministers Todd Chilembo and Gaston Sichilima know it hence always press conferences and press statements to castigate those who try claim it to communicate their views.
Holding dissenting opinions from the ruling party is precisely the stuff freedoms of opinion and expression is made of,” he said.
“Did the ministers really think that we should all share their opinion on such a divisive issue as Chiluba's acquittal? If they have chosen not to oppose the acquittal for whatever reason (s), should all Zambians and their various professional and non-professional bodies not think differently from the MMD? What exactly is wrong with calls for appeal in Chiluba's acquittal or for LAZ to question Mchenga's stance?”
Prof Hansungule said Chiluba’s acquittal would be a subject of public discussion for a long time.
He said Chiluba had up to now not explained how he acquired the US $8 million he deposited in the Zamtrop account.
“MMD must accept that this issue will be a subject of public discourse for a long time to come. Chiluba whom they are supporting has not explained how he came to be in possession of eight million United States dollars. He has not explained and I seriously doubt if he can.
To my knowledge, there is no Christian who is a Christian who cannot be bothered to explain how he or she came to possession of such a large sum of money. Chiluba claims to be a Christian.
His salary as president for ten years is public knowledge. If this cannot be established in the established courts of law up to the highest court using institutions of state, can we still claim Zambia is a democracy based on the rule of law?” asked Prof Hansungule.
“Given the clear stand the MMD and President Banda have taken on Chiluba and his acquittal, this matter should be taken to the people for them to make their verdict in 2011.
We are dealing with the issue of corruption here and it is important all voices are heard on the issue. We must go to the people with Chiluba's salary for the ten years he was president which is public knowledge at Government Printers in Lusaka; add 20 per cent for his allowances and deducting it from eight million USD, ask people to ask the MMD who know him better to explain for him where he got the rest?
The $8 million is the money Chiluba himself admitted to have in the infamous Zamtrop account therefore he must be able to shed light on through his personal and political friends. 2011 should be an interesting year. The elections should be decided on Chiluba's case. Let's ask people to make their decisions against this background.”
Labels: MICHELO HASUNGULE, STEPHEN LUNGU
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Attacking Lungu is wicked intimidation - Prof Hansungule
By Ernest Chanda
Sat 26 Dec. 2009, 04:01 CAT
PRETORIA-based Professor of law Michelo Hansungule has described the government’s attacks on Law Association of Zambia (LAZ) president Stephen Lungu as wicked intimidation.
In an interview from his base in South Africa, Prof Hansungule encouraged LAZ to continue protecting the people of Zambia.
“LAZ and Stephen Lungu should continue developing Zambia through their fearless voices on matters of public interest. MMD must understand that statements from their ministers against Lungu in particular and LAZ in general is wicked intimidation which is very disappointing really for a party which came to power on the bandwagon of democracy,” Prof Hansungule said.
“In Zambia, we need not just LAZ voice but a million voices of free men and women including children to develop. No country where the government intimidates its people has developed. Look around at history and tell me one which did. The different views and discourses especially against government is the raw material by which development is made.”
Prof Hansungule wondered why the government should call for Lungu’s blood when he was operating professionally.
“It is amazing how politics make people drunk with power. Power corrupts, absolute power corrupts absolutely. It's a long time since a wise man uttered these words. Today, they sound exactly like they were uttered this morning. Why should our politicians itch for Stephen Lungu's blood? You want the blood of someone who is saying the right thing?
What exactly is wrong with us humans?” he asked. “The Law Association of Zambia has a right to comment on issues of public interest in the way they not MMD see it. I thought the MMD should surprise us at least once by coming out to congratulate Stephen and his colleagues for being true to themselves and doubt DPP Mchenga. More than forty years after independence, the ruling party still cannot tolerate different views! When are we going to 'grow up' politically and celebrate different and opposite views?”
He said there was nothing wrong with people questioning Chiluba’s acquittal since the former president plundered public resources.
“The right of participation is enshrined in the Constitution and it is so in all major political systems. A key element of this is the freedom of expression and I am glad deputy ministers Todd Chilembo and Gaston Sichilima know it hence always press conferences and press statements to castigate those who try claim it to communicate their views.
Holding dissenting opinions from the ruling party is precisely the stuff freedoms of opinion and expression is made of,” he said. “Did the ministers really think that we should all share their opinion on such a divisive issue as Chiluba's acquittal? If they have chosen not to oppose the acquittal for whatever reason (s), should all Zambians and their various professional and non-professional bodies not think differently from the MMD? What exactly is wrong with calls for appeal in Chiluba's acquittal or for LAZ to question Mchenga's stance?”
Prof Hansungule said Chiluba’s acquittal would be a subject of public discussion for a long time.
He said Chiluba had up to now not explained how he acquired the US $8 million he deposited in the Zamtrop account.
“MMD must accept that this issue will be a subject of public discourse for a long time to come. Chiluba whom they are supporting has not explained how he came to be in possession of eight million United States dollars. He has not explained and I seriously doubt if he can.
To my knowledge, there is no Christian who is a Christian who cannot be bothered to explain how he or she came to possession of such a large sum of money. Chiluba claims to be a Christian.
His salary as president for ten years is public knowledge. If this cannot be established in the established courts of law up to the highest court using institutions of state, can we still claim Zambia is a democracy based on the rule of law?” asked Prof Hansungule.
“Given the clear stand the MMD and President Banda have taken on Chiluba and his acquittal, this matter should be taken to the people for them to make their verdict in 2011.
We are dealing with the issue of corruption here and it is important all voices are heard on the issue. We must go to the people with Chiluba's salary for the ten years he was president which is public knowledge at Government Printers in Lusaka; add 20 per cent for his allowances and deducting it from eight million USD, ask people to ask the MMD who know him better to explain for him where he got the rest?
The $8 million is the money Chiluba himself admitted to have in the infamous Zamtrop account therefore he must be able to shed light on through his personal and political friends. 2011 should be an interesting year. The elections should be decided on Chiluba's case. Let's ask people to make their decisions against this background.”
Labels: MICHELO HASUNGULE, STEPHEN LUNGU
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LAZ responds to govt's allegations
By Chibaula Silwamba
Sun 20 Dec. 2009, 04:01 CAT
Law Association of Zambia (LAZ) president Stephen Lungu yesterday said it was unfortunate that Vice-President George Kunda has taken a political position by accusing LAZ of being in an alliance with the PF-UPND pact.
And Lusaka lawyer Eddie Mwitwa yesterday said any reasonable lawyer would support LAZ's call for Director of Public Prosecutions (DPP) Chalwe Mchenga to resign from his position.
Reacting to Vice-President and justice minister Kunda's allegations that LAZ was being partisan, Lungu dismissed the allegations against them saying LAZ was above politics.
“The association is being guided by the Law Association of Zambia Act section 4 that spells out what it is that we do as an association. As an association that is the only thing that guides us. The position we have taken is non-partisan but is purely a position that deals with our Constitution, and it's an issue that relates to the DPP,” Lungu said. “It is, therefore, unfortunate situation that the Vice-President can make such an accusation when absolutely it is not correct.”
Lungu regretted that Vice-President Kunda had taken a political position in the matter.
“As an association we are above politics. We do know that within the association there are people that have political alliances. As an association we try or we strive to keep away from political alliances and that is why everything that we do is guided by Section 4 of the LAZ Act,” Lungu said. “Suffice to say, as an association, this is the position we have taken.”
Asked what LAZ would do if Mchenga declines to resign and is backed by the government, Lungu responded: “We will look into the decision they have taken now and we will decide what next course of action to take.”
And Mwitwa supported LAZ's position on Mchenga.
“I think any reasonable lawyer would support what LAZ has decided on the matter. I have no objection to LAZ's stance,” said Mwitwa.
Addressing a media briefing at his office in Lusaka on Friday, Vice-President Kunda accused the LAZ council of comprising opposition PF members.
Labels: EDDIE MWITWA, LAZ, STEPHEN LUNGU
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LAZ is right, Mchenga must resign
By Editor
Fri 18 Dec. 2009, 04:00 CAT
In life, it’s always better to be clear about things. The decision taken by the Law Association of Zambia, under the leadership of Stephen Lungu, is a very big one, a very important one.
It is a decision that needs to be understood in all its dimensions because it goes to the core of what the Law Association of Zambia should stand for and good governance in this country.
To anyone who has been following the development of the Law Association of Zambia’s position on this matter closely, it should be clear that it has taken time to reach where we are. It seems the Law Association of Zambia had a lot of internal soul searching on the important question of how Director of Public Prosecutions Chalwe Mchenga has conducted himself in the aftermath of the acquittal of Frederick Chiluba. The Law Association of Zambia to its credit did not rush to its conclusions but waited until they had understood the whole matter before they issued any statement on it.
In one of the earlier statements that the Law Association of Zambia issued in connection with the handling of the appeal against Chiluba’s acquittal, they politely but firmly observed that it was clear that the decision not to appeal was not made by Mchenga.
Mchenga for his part, notwithstanding that a most serious allegation against his professional integrity had been made by the professional body that regulates all lawyers in this country, chose to remain quiet. Mchenga behaved as if nothing had happened. The Law Association clearly said Mchenga had abrogated the Constitution and chose to ignore the legal fraternity to which he belongs.
Mchenga’s job is one of the most important jobs in the maintenance of law and order, fairness and justice in our country. Mchenga’s discharge of his duties should be guided by the law, honesty and integrity. What is clear is that Mchenga has failed on this score. He is a politically pliable Director of Public Prosecutions who makes decisions to please his political masters and who acts according to the dictates of those in power.
Mchenga is a shame to the legal profession. Such a spineless character should never occupy such an important office. Mchenga should be hunted out of the office he has disgraced.
Some of our people may have forgotten what actually happened in connection with the Chiluba acquittal and the subsequent withdrawal of the appeal that was lodged. Before even the reading of the judgment of magistrate Jones Chinyamba acquitting Chiluba was completed in Lusaka, Rupiah Banda made comments in Kabwe whilst addressing a church meeting which showed that he knew the outcome before the judgment was made.
After the judgment was delivered, the very next day, even before anybody had a chance to read the handwritten judgment, Rupiah was thanking the Zambian people for accepting the acquittal of Chiluba. When the former chairman of the Task Force Maxwell Nkole decided to appeal, Rupiah fired him for being indisciplined and said as much in public. Mchenga withdrew the appeal that was filed and he gave false reasons for doing so. First he claimed that the lawyers that filed the appeal did not have his permission to do so.
And this was proved to be a lie because Mchenga knew very well that no such permission was required. We say this because not very long before, Mchenga had obtained a judgment from judge Mwanamwambwa clearly stating that no such permission was required from him for a prosecutor to appeal. When this lie was exposed and his claim of permission discredited, Mchenga resorted to another lie. He claimed that there was no merit in the grounds of appeal that had been filed. Again, this lie was exposed by many people who had read the judgment. The Law Association of Zambia made it clear that there was merit in the grounds of appeal and the matter was therefore appealable.
Mchenga’s lies fell flat when the real reasons for his refusal to appeal began to emerge in the public. Realising that Mchenga was incapable of defending his lie, their lie, his political masters, his handlers jumped into the ring to defend what could clearly not be defended by reason. And because the decision not to appeal Chiluba’s acquittal could not be defended legally or by reason, they resorted to arrogance and more and more lies. Mike Mulongoti was the first one to come out saying they decided not to appeal Chiluba’s acquittal because sending him to prison would have been costly.
Mchenga was exposed; although he claimed to have made the decision not to appeal, his political masters, the real or principal decision makers in this matter became increasingly careless and arrogant. George Kunda was even more fanatical in the position he took – he declared that if the Director of Public Prosecutions had appealed, it would have been professional misconduct on his part.
The question still remains: who was making the decision? George or Mchenga? If appealing when he was not supposed to appeal was a misconduct, then shouldn’t it follow that not appealing when he should is equally a professional misconduct? Following George’s logic, one should see why the Law Association of Zambia has a point in calling for Mchenga ‘s resignation on grounds of professional misconduct. It has been established beyond any reasonable doubt that Mchenga did not appeal when he was supposed to appeal because his political masters had stopped him from doing so.
And the reasons Mchenga gave for withdrawing the appeal have failed to hold, have been proved to be a big lie, deceit. What Mchenga did was actually a fraud to the people of Zambia. Given that position, it is easy to understand what has driven the Law Association of Zambia to take the position it has taken on this matter and against Mchenga. But this is not all. There is more to it.
If anyone was still in doubt as to who made the decision not to appeal, Rupiah made it very clear. Rupiah told the nation that he had decided not to appeal because the lawyers who prosecuted Chiluba for US $500,000 were paid US $13 million.
According to this lie, Rupiah made the decision not to appeal so that he could save money. Rupiah claimed that appealing the matter would cost the Zambian taxpayer another US $13 million and he was not in a position to appeal and enrich those greedy lawyers. This is what Rupiah told the nation and this matter was reported in more than one edition of the state-owned and government controlled Zambia Daily Mail, among other news media outlets in our country.
And to date there has been no repudiation of this statement by Rupiah himself or even Mchenga. It is difficult for them to do so because it was made publicly, with a lot of emphasis and a long explanation. And this was not the first and the last time Rupiah tried to explain and defend the decision not to appeal Chiluba’s acquittal.
Before this, Rupiah had made statements to the effect that he was very happy that Chiluba was acquitted because it was going to be very difficult for him to find an appropriate prison for a former president. Rupiah knows very well that under our laws, there is no special prison for anybody because all are equal before the law. And probably it was for this reason that Chiluba himself, when he was president of the Republic, incarcerated a former president, Dr Kenneth Kaunda, at Mukobeko Prison.
It shouldn’t be forgotten as well that during the Kasama Central parliamentary by-election, Rupiah told a closed-door meeting of civil servants and other public workers that he was surprised they were not supporting Chiluba’s acquittal when they were supposed to be celebrating it because he hailed from their region, that is, he was their tribesman.
And recently, Rupiah told some people at some funeral in Lusaka that appealing Chiluba’s acquittal will be tantamount to putting him back in a lion’s mouth; he won’t survive. There are a lot of other things Rupiah has said on this issue in privacy and to many people.
Clearly, Rupiah stopped the appeal against Chiluba’s acquittal for petty personal political considerations. But what is Mchenga’s consideration in this matter?
Mchenga has been George’s bootlicker and today, he is paying a price for that bootlicking. The nation cannot have a Director of Public Prosecutions who takes instructions from a person like George whose dishonest schemes and machinations are now well-known. George has been the puppeteer while Mchenga has been a willing puppet in their scheme to hoodwink the Zambian public and deny them justice. In Mchenga and George, Rupiah has found two perfect minions who are going to carry out his evil scheme without asking any questions.
When Mchenga says there are no grounds of appeal in the Chiluba case, he simply means ‘my bosses have not allowed me to do this’. This is what he did in the Kashiwa Bulaya nolle prosequi.
This spineless excuse for a lawyer, sneaked into court and withdrew the case against Bulaya on the instructions of George. When the matter became public, George and Mchenga even convinced Levy Mwanawasa to tell the nation that the reason they had withdrawn the case was because it was a weak case and the state was going to lose because there was no adequate evidence to secure a conviction of Bulaya.
Again, this lie was exposed. Shamelessly, the same Mchenga allowed the matter to go back to court. And there is no need to guess who told Mchenga to take the matter back to court. It is clear that after Levy realised that the Zambian people were resolved to see justice in this matter, he directed Mchenga to take the matter back to court. And since Mchenga acts on political orders, he took back the matter to court.
What happened after this case that they claimed was weak was taken back to court is well known.
Bulaya was convicted. He appealed to the High Court and lost. Bulaya’s friends have now resorted to keeping him at the University Teaching Hospital to avoid jail. But Bulaya is a convict, although George and Mchenga claimed there was no evidence. These are the kinds of people we are dealing with.
It is clear that these people cannot work with a professional Director of Public Prosecutions. What Mchenga did over the Bulaya case, a professional Director of Public Prosecutions had refused to do. And for that reason, George made sure that Caroline Sokoni was never confirmed as Director of Public Prosecutions. George preferred a spineless unprofessional wimp – Mchenga.
George is trying to run the criminal justice system as an extension to their political games. Only the people they hate or have no use for should be prosecuted. In their small minds, they cheated themselves that Chiluba was a political asset and went out of their way to yet again compromise the important office of Director of Public Prosecutions.
Mchenga has disgraced this very important office of our people, of our nation, of our state and the Law Association of Zambia is correct to call for his resignation. And Mchenga must go. If he resists, he will be hunted out of that office he has so much disgraced. Those who betray our people should not expect to be paid by our people to continue their betrayal.
Labels: CHALWE MCHENGA, LAZ, STEPHEN LUNGU
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LAZ demands DPP’s resignation
By Patson Chilemba
Thu 17 Dec. 2009, 04:01 CAT
THE Law Association of Zambia (LAZ) yesterday asked Director of Public Prosecutions (DPP) Chalwe Mchenga to resign from office.
In a press statement, LAZ president Stephen Lungu stated that LAZ was now convinced that due to continued interference by the executive in the affairs of the office of the DPP, the public could no longer be expected to have trust and confidence in this important office as long as Mchenga remained DPP.
“As LAZ, therefore, we have formed the strong and reasoned view that greater interest of the public and the criminal justice system in our country will best be served if the Learned Director of Public Prosecutions Mr F. R. Mchenga, SC resigns, and we call upon him to do so,” Lungu stated. “We reiterate that we seek to make no political gains as LAZ in our call for the DPP's resignation. We firmly believe that there is serious Constitutional case to be made in our call. We subscribe to the view that if government will not restrain itself in its interference with constitutional and other public office, this will lead to a serious breakdown in constitutionalism and the rule of law by which all known developed and emerging democracies are expected to be governed.”
Lungu stated that on December 7, 2009, LAZ addressed a letter to the Office of the Attorney General in which various matters pertaining to the recent comments in the operations of the DPP were addressed.
He stated that the letter was in compliance with the provisions of the Republican Constitution because the only office the DPP could consult was that of the Attorney General.
“From the date we submitted our letter to the Attorney General, we have not received any response from the office. What we have instead seen is a number of press reports namely by the Minister of Information and Broadcasting Honourable Ronnie Shikapwasha and the Deputy Minister for Justice Honourable Todd Chilembo, in which attempts are being made to classify our communication to the Attorney General as political statements which are bent on misleading the Public and undermining the Office of the DPP,” Lungu stated.
Lungu stated that LAZ had no intention whatsoever of entering into a fray of politics in addressing the matter of the Office of the DPP.
“To the contrary, LAZ seeks to be perceived as custodians of the rule of law. That is the reason we raised our concerns with the Attorney General. We had hoped (and are still expecting) to have a pacific and well-reasoned resolution of the matters raised in our letter.
At the time of issuing the present statement, we are mindful that the Attorney General has not responded to our letter,” Lungu stated. “However, on the basis that the public has heard responses of government to our letter from members of Cabinet, we have formed the view that the position taken by the two honourable ministers represents the position of government on the subject.”
Lungu observed that the statements made by the ministers were a clear testimony that government was so determined to usurp the constitutional powers vested in the DPP.
“The stance to rise to his defence instead of allowing the concerned Office to respond to our letter is clear evidence of this usurpation,” stated Lungu.
LAZ wrote to the Attorney General's chambers complaining that the executive has usurped the powers of the DPP. This followed statements by President Rupiah Banda and his ministers which confirmed that the executive instructed the DPP not to appeal the acquittal of former president Frederick Chiluba on corruption charges.
In 2004, the then justice minister and attorney general George Kunda gave instructions to the then acting DPP Caroline Sokoni to discontinue, by way of entering a nolle prosequi, the matter in which former Ministry of Health permanent secretary Kashiwa Bulaya was charged with corruption, claiming it was a weak case for the state. However, Sokoni defied Kunda's instructions. Shortly after that, Sokoni was replaced with Mchenga who immediately carried out Kunda's instructions on December 3, 2004.
Labels: CHALWE MCHENGA, DPP, LAZ, STEPHEN LUNGU
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Rupiah is defending criminals – Sata
By Patson Chilemba
Sat 12 Dec. 2009, 04:01 CAT
PATRIOTIC Front (PF) president Michael Sata yesterday charged that it is in fact President Rupiah Banda and Chalwe Mchenga who are misleading the nation by defending criminals, and not the Law Association of Zambia (LAZ).
And Lusaka lawyer Ludwig Sondashi echoed Sata’s sentiments, saying the government should heed observations by LAZ on the Director of Public Prosecutions (DPP) because the association never issued statements without researching the law.
Commenting on information minister Lieutenant General Ronnie Shikapwasha’s statement that the government was saddened that LAZ was issuing misleading statements on the DPP following the association’s observation to the Attorney General that the powers of the DPP had been usurped by the Executive, Sata said LAZ was supposed to protect the office of the DPP from abuse.
He said it was unlawful for the DPP to receive instructions from the Executive on the delivery of justice to the people. Sata said everything he warned the nation about President Banda last year was now manifesting in the President’s conduct. He asked Lt Gen Shikapwasha to stop misleading the nation.
Apart from Lt Gen Shikapwasha, Sata said, President Banda, Vice-President George Kunda and Mchenga were misleading the nation.
“… President Banda, since he came to office, since he started to act as president, he has ignored the rule of law, it’s him who started congratulating people without knowing who has said ‘thank you very much for the acquittal’,” Sata said.
“It is him who is sending Mr Shikapwasha to defend criminals and mislead the nation. Chalwe Mchenga is also involved.”
Sata demanded that acting Attorney General Abyudi Shonga should respond to the letter from LAZ and not Lt Gen Shikapwasha whom he described as an empty head that wanted to comment on matters he did not understand.
Sata said Lt Gen Shikapwasha was more competent flying aeroplanes and not to talk about matters of law.
And Sondashi said it was right that LAZ had observed the Executive’s continuous influence on the judicial organs of the state.
“What the LAZ said is correct, and the government through their spokesperson, Reverend Gen Shikapwasha must heed to LAZ. LAZ does not issue statements without researching the law, so Mr Shikapwasha must be very careful when he is dealing with the law, he will be out of government and he is going to be affected over the issues that are being raised about the DPP,” Sondashi said.
“In fact I would go further myself to suggest that the DPP, if he is worth the position he holds should just resign. He should step down so that another DPP who can withstand pressure can be appointed because as far as we are concerned, even I have lost confidence in the DPP.”
Sondashi said one did not even need to go far because President Banda recently confirmed that he exerted power on the DPP not to appeal former president Frederick Chiluba’s acquittal.
He said even the acquittal was in itself questionable.
“It is the Executive which is misleading the nation, not LAZ. How can LAZ mislead the nation? You see, they know that Chiluba is guilty. He has even been found guilty of corruption, and even President Banda’s children are found to be engaging in corrupt activities,” Sondashi said.
He rubbished Lt Gen Shikapwasha’s assertion that the statement by LAZ created an impression that the DPP could only be expected to make anti-government decisions.
“There is nothing convincing from what Shikapwasha is talking about,” Sondashi said.
On Lt Gen Shikapwasha’s statement that LAZ was being discredited by the people issuing statements in its name, Sondashi said LAZ president Stephen Lungu could not issue statements without consulting the LAZ executive.
He said Lt Gen Shikapwasha had reacted in a harsh manner because he expected LAZ to speak in favour of the government.
“Mr Lungu is now coming up. What he Lungu has done is what some of us members of LAZ expect that he must not only issue statements which support government,” said Sondashi. “Mr Shikapwasha’s statement should be condemned with all the force that is there.”
Recently, Lungu revealed that LAZ had written to the Attorney General, observing that the powers of the DPP had been taken over by the Executive.
But in response, Lt Gen Shikapwasha stated that the statement attributed to Lungu must be dismissed as it added no value to enhancing the integrity of the Judiciary and other arms of governance.
Lt Gen Shikapwasha accused LAZ of issuing misleading statements on the matter.
Labels: LAZ, LUDWIG SONDASHI, RUPIAH BANDA, SATA, STEPHEN LUNGU
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Let’s avoid anarchy and veritable chaos
By Editor
Wed 09 Dec. 2009, 04:00 CAT
Very important statements were made at the Ndola High Court golden jubilee celebrations on Friday which should not go without much comment from the Zambian people.
Rupiah Banda, as President of the Republic, made extensive valid observations on the issue of separation of powers and on the operations of the judiciary. But valid as those observations may be, they need scrutiny and analysis in the light of day-to-day practice, on the basis of what is pertaining on the ground.
Chief Justice Ernest Sakala also explained the challenges the judiciary was facing in carrying out its duties – lack of this and that, shortage of this and that and so on and so forth. But there is need to explore or analyse why things are like that so as to remedy the situation.
And the president of the Law Association of Zambia Stephen Lungu also made observations on the issue of independence and impartiality of the judiciary and its consequences on public confidence. These issues also need serious public consideration.
Rupiah observed that there is need to improve the conditions of service of both the adjudicator and support staff in order to recruit and retain high calibre staff for the judiciary. Who can disagree with this? Rupiah also went further to observe that something needs to be done about the physical infrastructure of the judiciary which could no longer meet the demands of the growing population. All who have been to our courts can bear witness to what Rupiah is saying and no one can disagree with him.
And Rupiah went on to propound some jurisprudence concerning the issue of separation of powers. He observed that separation of powers was a basic principle of the political system of modern democracies which Zambia was party to. He said that the doctrine of separation of powers implied that the function of the state should reside in the executive, legislature and the judiciary as different and separate entities, with none of the three branches of government able to exercise total power over the other two. Rupiah stated that his government appreciated and valued the doctrine of separation of powers because he viewed the judiciary as a complementary arm to the executive and legislature in providing checks and balances.
And as such, Rupiah observed that the doctrine of separation of powers was critical to the deepening of democratic processes and strengthening of institutions in the country. Again, who can disagree with what Rupiah is saying? But the story does not end here, does not end with what has been said. This is just the beginning of the story. The story ends with the doing, with what is being done, with the practice of all this, with what is pertaining on the ground.
The topic or issue of the independence of the judiciary is obviously a vast and complicated one. And this in itself is an encouragement to interested persons to attempt a deeper analysis of this issue and of the observations made by Rupiah. We say this because this issue is central to the administration of fair and equal justice in our country. As such, it attracts undue amount of lofty but empty rhetoric about the defence of democratic values and political principle, when what judges and magistrates themselves desire, as do those subject to the laws, is a critical but helpful examination of the practical ways in which such independence may be guaranteed, or at least promoted, in the day-to-day administration of justice. There is need to at least survey the broad issues involved, and draw attention to certain problems – as exemplified from practical experience and contested cases – as well as point to possible solutions.
The idea of independence of the judiciary as it presents itself before us today is a modern one. If we go back in history, or to non-western cultures, we shall generally find that, although the notion that justice should be fairly administered may well have been accepted, those who adjudicated or settled cases were not expected to be in any real sense “independent”.
Thus, in medieval England from whose common law we have derived our national legal system, justice was a royal prerogative, which the ruler carried out through his appointed officials or justices. As such, not only was there no separation of powers, but those who judged were agents of those who ruled; while in theocratic societies, such as those where Islam was the state religion, judges had to conform to the dictates of the sacred law, as expressed in the Sharia and the Sunna. The same observations apply to societies with customary legal systems.
The independence of the judiciary is linked to, and derived from, two seminal principles: the separation of powers; and the rule of law. It is all very well to say that Montesquieu, writing in the 18th century, was mistaken when he identified separation of the legislature, executive and judicial powers as the cardinal feature of the then British constitution.
However, his misreading, if it was such, has proved self-validating, in that modern constitutions, starting off with that of the United States, have been generally premised on the notion of separation of powers; so much so that the independent constitutions which Britain offered us – as its former colonies – at the time of independence were almost without exception based on this principle.
But what does this separation of powers entail? In theory, that the three arms of government – legislative, judicial and executive or administrative – should be clearly separated from each other, and that each should operate independently of the others.
In practice, this ambition cannot be realised. Parliament makes the laws. The judiciary are there to implement and apply them. For the judiciary to refuse to apply such laws would betray their duty under the rule of law principle to faithfully apply the laws rather than their own prejudices and convictions – “a government of laws rather than of men”– and would in practice mean that the judges had become the legislators.
This seems to have been the outcome in the United States, where the Supreme Court, with its power to review legislation for constitutionality, has evolved – like a spider spinning thread – a whole tissue of new rules and principles from the bare words of the constitutions.
So in a contest between legislature and judiciary at the highest levels, apart from the US example, one might conclude that it is the legislature’s will which is to prevail. But many countries have endowed themselves with fundamental rights provisions in their written constitutions. These allow or require the courts to review legislation for conformity with the fundamental rights provisions, and to strike down laws which fail to conform to them.
However, wherever it is provided that the government shall be carried on by the party which commands majority support in parliament and which controls the executive, legislation is generally a product of the executive’s initiatives and policies.
As to the separation of the judiciary from the executive, so long as judges are appointed, paid, promoted or dismissed by persons or bodies controlled directly or indirectly by the executive, the judiciary’s independence may be more theoretical than real.
Independence of the judiciary is an essential pillar supporting the rule of law. It is not enough to say that the courts should follow and apply laws faithfully and equally to all. One must, in addition, demand that there should be no dispensing power vested in the executive or any other body which would relieve a person from the duties and processes of the law. The president in this country still retains the power to exempt by or from legislation persons or activities which would otherwise be affected by it.
As we have seen in the case of Frederick Chiluba and in the cases initiated by Rupiah against The Post, there is hardly a more powerful weapon which can be abused in the hands of a government than that of initiating or discontinuing prosecutions. It is notorious in this country that those in control of government have abused the prosecution process by harassing opponents of the regimes through unjustified prosecutions, or by exempting their own supporters, friends, allies or ministers from liability for illegal acts through the abuse of the judicial process.
The judiciary at whatever level may find itself confronting these abuses, and may find itself subjected to enormous pressures to accept them. Often, if the process is legal but unfair, there is little that a court can do.
And when it comes to conditions of service, we think that all those who exercise judicial powers in the name of the state, and not merely those who are termed “judges”, must be included in our observations and covered by all these protections we are talking about. This is vital, but frequently overlooked.
Where there is special protection for judicial officers, it is usually confined to High Court or Supreme Court judges and the like. This does not extend to magistrates or chairmen of tribunals, who basically hold office at the pleasure of those in control of government.
The imperatives which drive us to seek protection for High Court and Supreme Court judges against improper interference or pressure apply even more forcefully to magistrates and members of local courts. All these, being much more open to illicit pressures both from government agents and from the public, need protection even more than High Court and Supreme Court judges, who are protected, literally by policemen and metaphorically by their high office and the mystique which surrounds it. We have seen what can happen, as in the case of Chiluba where he was acquitted by a magistrate court in the most questionable of circumstances with Rupiah’s government’s clear complicity. And after that, Rupiah has refused or ignored public outcry to have the matter appealed because he believes sending Chiluba to prison will not be the right thing for him to do.
Where do things like these, practices of this nature, leave the issue of independence of the judiciary? Independence means not subject to the control of any person; free to act as one pleases, autonomous; not influenced or affected by others and so on and so forth. We are not asking for anything like this because such independence doesn’t exist anywhere in the world.
And any claim by judicial officers to such absolute independence in these terms would have to be rejected as absurd. First of all, judges must be constrained by, and follow, existing laws and procedures. Judges are not to act as they please, otherwise one, viz. justice, would be sacrificed on the altar of another, viz. independence.
Judges are also constrained by less tangible requirements, such as those of courtesy, fairness, cultural traditions, the etiquette of the law – court and the profession. A judge or a magistrate is not free to act perversely, unfairly or for ulterior ends or motives. It is right that he or she should be prompt, attentive and competent.
To ensure these ends, the judicial officer is rightly placed under controls, both those of the judicial nature – notably by appeals – and of an administrative nature. Further, the judge must be rightly influenced by others in the performance of his or her judicial duties. For a start, there is no point in advocacy or pleading if it does not affect the judicial decision. Next, the judge must be sensitive to guidance and directions reasonably and lawfully given by those of superior rank to him or herself.
So absolute independence is not an issue. We are talking about relative independence, which reduces to protection or immunity from improper or unlawful influences, direct or indirect, on the way in which the judicial officer carries out his or her judicial functions. Such influences may be improper because they come from a person or body who should not be seeking to influence a judicial decision, or whose views should have been brought to bear by one of the legitimate methods of so doing. Thus, a president, minister, government servant, or a politician who has no locus standi in that case and that court cannot try to secure a particular result, say by some secret instruction to a judge or magistrate.
Thus, superior judicial officers should not be intervening in the conduct of a case in a court below, save by approved and legislated procedures. Thus, it is perfectly acceptable for parties and their representatives to put their case before the judge in court. They take the form of threats, rewards or indirect pressures which are tantamount to corruption. They serve an improper end – discriminatory treatment against political opponents.
This is what the Zambian people saw in the way Chiluba’s case has been handled. And this is why even the appeal by his wife and the measures the Chief Justice has taken – legitimate as they may be – are being viewed by the public with suspicion. In short, the handling of Chiluba’s case, among others, has seriously undermined public confidence in the judiciary, especially its independence, impartiality and capacity to do justice.
The examples we have given above demonstrate another point. Not only is independence relative and not absolute, but what is thought permissible and impermissible interferences change with time. It is clear that adjudication is not merely mechanical, and from time to time involves the exercise of judgment and discretion by the presiding judge. But what should be the limits of this discretion?
The observations made by Lungu, the president of the Law Association of Zambia, deserve serious consideration from the Zambian people and from our courts of law. We say this because the independence and impartiality of our judiciary is today in question. This is an observation that has been made by other people and in some way even admitted by some of our senior judicial officers. It is important, as Lungu has correctly observed, to realise the fact that an independent judiciary upheld the rule of law, otherwise there can’t be the rule of law.
And Justice Sakala is very right when he says that the lack of facilities compromises the quality of court performances, “Libraries and archival facilities are important tools for any judge”. The conditions under which our judges and magistrates are serving make their work almost impossible. We are asking and expecting too much from these people under the conditions which they are operating. In addition to lack of facilities such as proper libraries and archives, our judges need to be serviced by competent assistants who can help them do their work.
They need qualified lawyers as research assistants and aides. They need proper chambers serviced by competent support staff. And until we start to realise that the administration of justice is a very important and serious undertaking and start to spend on our judges probably more than we are spending on our ministers and deputy ministers and other members of the executive, we will not get much from our courts. And there is a great danger in this because a poor judiciary undermines public confidence in the rule of law.
When the rule of law fails, we know very well what happens: anarchy takes over and veritable chaos reigns in the nation. For this reason, there is need for us to take preventive measures and avoid sinking into anarchy and veritable chaos because it’s not easy to recover from such a situation. Let’s pay the price that is needed to avoid anarchy and chaos in the nation.
Labels: CONSTITUTION, DPP, JUDICIARY, LAZ, STEPHEN LUNGU
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