Nevers' anger with Supreme Court
By Editor
Wed 03 July 2013, 14:00 CAT
Nevers Mumba has every right to disagree with the decision of the Supreme Court to nullify Dora Siliya's election as member of parliament for Petauke Central. But Nevers doesn't have the right to insult the Supreme Court.
The decision by now suspended High Court judge Charles Kajimanga to uphold Dora's election as member of parliament for Petauke Central was clearly faulty, but no one denounced him in the manner Nevers is insulting the Supreme Court.
No one raised against Kajimanga the questions Nevers is raising against the Supreme Court. This is not because people had nothing to say about Kajimanga's judgment; it is simply because that is not the right way to deal with decisions of the courts one does not agree with.
If the courts have abused their powers, there are many legal avenues to address that. A complaint can be made against any judge one feels is corrupt and is handing out judgments in a manner that is corrupt.
But we understand where Nevers is coming from. Nevers is a leader of a political party that had a habit of abusing the Judiciary to procure judgments they desired. They had compromised some judicial officers to give them what they wanted. And today they think the Patriotic Front in government is doing what they used to do. If the Patriotic Front is indeed doing what the MMD used to do in government, let's have that addressed more openly and in accordance with the law.
The judges who presided over Dora's case are all identifiable. Let Nevers point out which of those judges has been compromised by the Patriotic Front leadership to deliver judgments in their favour.
It seems Nevers has no problem with the High Court of Zambia but has serious problems with the Supreme Court. Why? Is it because they have been getting their way with High Court judges whom they themselves had appointed or promoted? And how many judges both at the High Court and Supreme Court level have been appointed or promoted by the Patriotic Front government?
We think there is much more to learn from Nevers' claims and he should be asked a few questions so that more can come out from him. Let there be contempt proceedings against Nevers so that he can come and ulula - reveal everything that he knows about the alleged corruption and abuses of our Supreme Court judges.
But again, what will happen if Nevers is called to account for his claims against the Supreme Court is that he will cry victimisation, persecution. That's what they do. They do wrong things, injure other people's reputations but they don't want to account for what they have done. The best defence to any such claim is truth. If what Nevers is saying is true, there is nothing one can do against him. But let him come and show that his claim against the Supreme Court is true.
In our view, it is not really what the Patriotic Front wants from these election petitions that matters. What matters is what the MMD members of parliament whose elections have been petitioned did. If they did not engage in any electoral malpractices whatsoever, there is nothing the Patriotic Front and the courts can do against them.
But the reality before us is that electoral malpractices had become the order of the day for the MMD. Electoral malpractices were increasingly becoming the accepted way of conducting election campaigns. It had become normal in Zambia to bribe or corrupt the electorate. It had also become normal or acceptable to slander opponents in an election campaign, and this is why Nevers has difficulties accepting that an election could be nullified on account of slandering an opponent.
There is no doubt that Dora and her agents did slander their political opponents for the sole purpose of making them unelectable.
Dora is a liar who went around telling lies about her political opponents. And Dora's lies were brought to court. She could not deny them. And Kajimanga could not deny that Dora lied about her political opponents with the aim of discrediting them so that they are not elected and she is elected. This is an electoral malpractice that is not permitted under our electoral laws. Dora violated this and no fair court can ignore this fact and allow it to go unpunished. Dora is paying for her dirty, filthy and deceitful mouth.
There is need for our politicians to respect truth and their political opponents. Our courts of law have a duty to teach our politicians decent politics in this present atmosphere of fierce competition and character assassination. Election campaigns must be carried out in peaceful and honest ways, devoid of violence and slander of opponents. All must be guided by truth, integrity and justice.
Whatever the deficiencies some of the election petition judgments may have, what cannot be taken away from all these election petitions is the fact that our electoral system is being cleansed by the Judiciary. For this, our Judiciary deserves a lot of credit. There is no electoral malpractice that should be tolerated. We need zero tolerance to electoral malpractices.
And whatever motivation the Patriotic Front might have had in initiating these election petitions, they also deserve credit because our electoral system wouldn't have been subjected to this cleansing without their actions.
Nevers says the nullification of some opposition seats will create a one-party state. This is nonsense. What is he talking about? Does Nevers know what a one-party state is? And what did Nevers do to dismantle the one-party state that was in this country? Challenging electoral fraud through legitimate actions in the courts of law is not creating a one-party state. What is dangerous to our democracy is the perpetration of electoral fraud. And Nevers' party led the worst and most corrupt election campaigns ever known in the history of this country. They went too far and probably that's why even the election petitions against them have followed them that far.
We know Nevers and his friends are becoming desperate. Their numbers in Parliament, which they tried to use to protect their criminal behaviour, are no longer there. The only thing that will now save them is doing the right thing and sticking to the truth, and not insulting Supreme Court judges whose judgments they don't like.
Labels: DORA SILIYA, NEVERS MUMBA, SUPREME COURT
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Supreme Court settles all land issues
Tuesday, 11 January 2011 21:24 Top Stories
Herald Assistant News Editor
THE Supreme Court has settled all legal issues raised in the constitutional applications regarding land acquisition that were still pending in the superior court, Chief Justice Godfrey Chidyausiku has said.
Officially opening the 2011 Legal Year in Harare on Mon-day, the Chief Justice said 17 out of 31 constitutional applications filed with the Supreme Court, were referrals from the magistrates’ courts across the country where mainly white farmers were resisting eviction from the gazetted farm land.
He said constitutional applications regarding land matters had been settled with the handing down of the Supreme Court judgment SC8/10 of November 2010.
In this case, the Commercial Farmers Union and nine others were challenging the constitutionality of the Government’s acquisition of land for resettlement.
The union had also argued that they were being discriminated against on the basis of race, as only white farmers were being prosecuted for refusing to vacate gazetted farms.
[Why would that be again? - MrK]
“This judgment (SC8/10) has had the effect of determining virtually all the Constitutional issues raised in the Constitutional applications relating to land acquisition pending before the Supreme Court,” said Chief Justice Chidyausiku.
Most white farmers who refused to vacate State land were arrested and prosecuted.
They were charged under section 3 (2) of the Gazetted Lands (Consequential Provisions) Act, for allegedly remaining on acquired land without authority.
Section 3 of the Act criminalises the continued occupation of acquired land by owners or occupiers of land acquired in terms of section 16B of the Constitution beyond the prescribed period.
The Supreme Court decision in case Number SC8/10 sets out the legal position on the land matters.
It says former owners and/or occupiers whose land had been acquired by the acquiring authority in terms of section 16B of the Constitution cannot challenge the legality of such acquisition in a court of law.
The jurisdiction of the courts has been displaced by Section 16B (3)(a) of the Constitution.
The ruling is very explicit that anyone who remains in occupation of State-acquired land without lawful authority will be prosecuted.
In this regard, all Zimbabweans have to comply with the law as provided in the Act because prosecutions for contravening the Act are constitutional and lawful.
“A former owner or occupier of acquired land who without lawful authority continues occupation of acquired land after the prescribed period commits a criminal offence.
“If the former owner or occupier continues in occupation in defiance of the law, no court of law has the jurisdiction to authorise the continued use or possession of the acquired land,” said the Chief Justice in the CFU ruling.
Litigants who breach the law on land matters cannot approach the courts for relief until they have complied with the law.
The 2005, Constitutional Amendment (Number 17) Act stopped legal challenges to land acquisitions.
In that Act, the only setback is the eviction of former owners through the Gazetted Lands (Consequential Provisions) Act which is cumbersome, as many cases end up in court.
Labels: LAND REFORM, SUPREME COURT, WHITE FARMERS
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Supreme Court throws out white farmers’ application
By Daniel Nemukuyu
THE Supreme Court has dismissed an application by white former commercial farmers who were challenging the constitutionality of Government’s compulsory acquisition of land under the land reform programme.
Nine members of the Commercial Farmers’ Union filed the application in which they argued they were being discriminated against on the basis of race. They said only white farmers were being prosecuted on land issues and were not being considered in the land redistribution programme.
It was argued that only land owned by whites was compulsorily acquired and they wanted leave to stay on the farms.
Chief Justice Godfrey Chidyausiku dismissed the application with costs saying the applicants had failed to prove or cite any black farmers who were in breach of the same law.
"They cannot be heard to complain that only white commercial farmers are being prosecuted.
"What is the Attorney-General supposed to do if it is only white farmers who are breaking the law?
"It is an abuse of court process for the applicants to approach this court seeking an interdict against the AG in these circumstances," said the Chief Justice.
He said the farmers should simply obey the law by vacating acquired land.
"If they have any legal claim to the acquired land, or arising from the acquired land, they can launch proceedings after vacating the acquired land as is required by law.
"I, therefore, find that the applicants’ complaint has no substance," he said.
The court ruled that the Minister of Lands was the acquiring authority and had the legal power to issue permits and other relevant documents.
Chief Justice Chidyausiku emphasised that issuance of an offer letter, permit or lease was a clear expression by the acquiring authority of the decision as to who should possess or occupy the land.
The Chief Justice reiterated that the Supreme Court’s decision was final and was not bound or influenced by the Sadc Tribunal.
The issue of it being bound by the Sadc Tribunal or any other courts defeated the idea of it being the country’s highest court, he noted.
Although inadequate proof was proffered in court to buttress claims that the farmers’ movable equipment was acquired, the Chief Justice ruled that the seizure of such equipment — if it did occur — was unlawful and contrary to the Acquisition of Farm Equipment or Material Act.
The Minister of Lands and Rural Resettlement, the Justice Minister, the Police Commissioner-General, the Auditor-General, the Finance Minister, the AG and the chairman of the compensation committee were cited as respondents.
Labels: AFRIFORUM, LAND REFORM, SUPREME COURT
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Supreme Court dismisses white farmers' application
By: TH-TZG
Posted: Friday, November 26, 2010 11:17 pm
THE Supreme Court of Zimbabwe has dismissed an application by white former commercial farmers who were challenging the constitutionality of Government’s compulsory acquisition of land under the land reform programme.
Nine members of the Commercial Farmers’ Union filed the application in which
they argued they were being discriminated against on the basis of race. They said
only white farmers were being prosecuted on land issues and were not being considered in the land redistribution programme.
It was argued that only land owned by whites was compulsorily acquired and they wanted leave to stay on the farms.
Chief Justice Godfrey Chidyausiku dismissed the application with costs saying the applicants had failed to prove or cite any black farmers who were in breach of the same law.
"They cannot be heard to complain that only white commercial farmers are being prosecuted.
"What is the Attorney-General supposed to do if it is only white farmers who are breaking the law?
"It is an abuse of court process for the applicants to approach this court seeking an interdict against the AG in these circumstances," said the Chief Justice.
He said the farmers should simply obey the law by vacating acquired land.
"If they have any legal claim to the acquired land, or arising from the acquired land, they can launch proceedings after vacating the acquired land as is required by law.
"I, therefore, find that the applicants’ complaint has no substance," he said.
The court ruled that the Minister of Lands was the acquiring authority and had the legal power to issue permits and other relevant documents.
Chief Justice Chidyausiku emphasised that issuance of an offer letter, permit or lease was a clear expression by the acquiring authority of the decision as to who should possess or occupy the land.
The Chief Justice reiterated that the Supreme Court’s decision was final and was not bound or influenced by the Sadc Tribunal.
The issue of it being bound by the Sadc Tribunal or any other courts defeated the idea of it being the country’s highest court, he noted.
Although inadequate proof was proffered in court to buttress claims that the farmers’ movable equipment was acquired, the Chief Justice ruled that the seizure of such equipment — if it did occur — was unlawful and contrary to the Acquisition of Farm Equipment or Material Act.
The Minister of Lands and Rural Resettlement, the Justice Minister, the Police Commissioner-General, the Auditor-General, the Finance Minister, the AG and the chairman of the compensation committee were cited as respondents.
Labels: AFRIFORUM, GODFREY CHIDYAUSIKU, LAND REFORM, SUPREME COURT, WHITE FARMERS
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Sue the president, insania mera
By: Itayi Garande
Posted: Friday, November 26, 2010 9:31 pm
MDC-T leader Morgan Tsvangirai has added one more incident to the growing list of gaffes by 'suing' President Mugabe whose position was placed beyond the reach of judicial direction, in the exercise of his constitutional, statutory and political powers.
Tsvangirai wants the Supreme Court to rule on what he terms the "violation" of the Global Political Agreement (GPA).
Under Section 20.1.3 (p) of Amendment No. 19, President Mugabe appoints ambassadors "in consultation with the Prime Minister, (and) makes key appointments the President is required to make under and in terms of the Constitution or any Act of Parliament".
The Amendment is silent on reassignments.
If the president decides to reshuffle or reassign ambassadors, he does not need to consult the prime minister as these are not (new) appointments.
In any case, as the law stands, the Supreme Court will not entertain a suit seeking a ruling directed at a sitting President.
In some countries like the US, suing a sitting president could be done through a venerable little-known method of judicial control over executive action, called "nonstatutory review."
Courts in that country could use this form of suit to review executive branch behaviour in a few instances; but this procedure only exists where there is a clear misuse of executive authority.
This "nonstatutory review" allows for the creation of remedies against unlawful government action and allows courts not to wait for Parliament to create statutory remedies.
The Zimbabwean situation is very different. There is no such legal recourse.
Reassignment of ambassadors and reappointment of governors cannot be categorised as "unlawful government action"; and there is no statutory remedy available for matters involving the implementability of the global political agreement.
Debates to this effect are purely academic in nature and are mere moot points.
Zimbabwe's constitution stipulates that a sitting president cannot be sued, and cannot be the subject of any civil or criminal proceedings; besides the GPA itself being an unenforceable political agreement.
Section 30 (1) of the Constitution stipulates: "The President shall not, while in office, be personally liable to any civil or criminal proceedings whatsoever in any court."
The resultant effect of this provision is that a sitting President will not be sued for "things done or omitted to be done by him before he became President; or things done or omitted to be done by him in his personal capacity during his term of office as President".
This also means that the President shall not be brought before the courts, or any enforcement body, for any debt or liability, incurred or accrued before or during his term of office. Any such debt or liability shall be suspended during his term of office as President.
Mr Tsvangirai and his advisers have erred in their desire to bring the President before the courts.
Unfortunately, the move is of no consequence (legally or politically) and this adds to a litany of MDC-T and Tsvangirai's political gaffes and missteps and legal blunders.
The move calls into question Mr Tsvangirai's political judgement and leadership capabilities; especially his suitability for occupying the Office of the President.
Mr Tsvangirai's move, however, is merely a cynical game of political one-upmanship. He wants to play the judicial branch against the executive branch to benefit his party's political prospects at the next election.
It's unclear who in the MDC-T, apart from the most rabid anti-Mugabe critters, would support such a move; unless it creates enough crisis to warrant another boycott of the election and thereby extend Tsvangirai's relevance in Zimbabwean politics.
* Comments and suggestions to: itayig *** hotmail.com
Labels: GLOBAL POLITICAL AGREEMENT, MORGAN TSVANGIRAI, SUPREME COURT
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Lawyer asks Supreme Court to declare death sentence unconstitutional
By Mwala Kalaluka
Sat 11 Sep. 2010, 12:00 CAT
THE Supreme Court has been asked to declare as unconstitutional a section in the Zambian Constitution that provides that anyone convicted for aggravated robbery while armed with a firearm should be given a mandatory death sentence. And the Supreme Court has directed the State to file their response in the matter through submissions, given the constitutional nature of the death penalty.
This is in a matter where Alex Njamba, who was sentenced to a mandatory death sentence by the Lusaka High Court on November 21, 2008, has appealed against his sentence arguing that the sentence was arbitrary and unconstitutional. Njamba has also argued in his memorandum of appeal that the mandatory death sentence imposed on him was a degrading and inhuman punishment.
Lusaka lawyer, Abraham Mwansa, who is representing Njamba in the matter stated in his heads of argument submitted before Deputy Chief Justice Ireen Mambilima sitting with Supreme Court justices Dennis Chirwa and Hilda Chibomba in Ndola, that Njamba’s death sentence was an arbitrary deprivation of life.
Mwansa submitted that the sentence was a denial of the appellant’s rights to a fair trial and also the usurpation of the inherent sentencing power of the court.
“Thereby depriving the Judiciary of an essential judicial function in clear violation of the constitutional principle of separation of power,” Mwansa stated.
“Having found the Appellants guilty of the offence of aggravated robbery whilst armed with firearm, the court below did not feel compelled to consider the circumstances of the offender and the offence.”
Mwansa stated however, that the appeal was not a challenge to the death penalty per se.
“It is important to clarify at the outset that the issue advanced by the Second Appellant is not about the death penalty as such, but rather about the mandatory requirement of death penalty,” Mwansa submitted.
He stated that it was Njamba’s contention that not everyone convicted of aggravated robbery whilst armed with a firearm deserves to die.
Mwansa submitted that refusing or denying a convict facing death sentence to be heard in mitigation when those facing lesser sentences are allowed to be heard in mitigation was clearly unjustified.
He quoted further that by reason of its compulsory and automatic application, a mandatory sentence could not be subject of an effective review by a higher court.
Mwansa stated that it was his client’s prayer that the Supreme Court declares that section 294(2) of the Penal Code, to the extent that it provides for mandatory sentence of death on anyone convicted for aggravated robbery while armed with a firearm, is unconstitutional.
The Supreme Court sitting in Ndola adjourned the matter to its next sitting to allow the Attorney General and the state file their submissions in the matter.
Labels: DEATH PENALTY, SUPREME COURT
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If donors praise you, then there’s something wrong with you - Chiluba
By Kombe Chimpinde and Joseph Mwenda
Mon 30 Aug. 2010, 14:20 CAT
If donors don’t say something bad about you, then there is something wrong with you, former republican president Frederick Chiluba has charged.
Talking to journalists at the Supreme Court this morning shortly after the adjournment of his wife, Regina’s case, Chiluba said donors had identified their puppets in the country whom they used as surrogates to divide the nation.
“Look at every nation, particularly the third World countries, they (donors) look at countries to identify their puppets whom they use as surrogates to divide the nation,” he said.
Chiluba said donors were in the habit of attacking Pan-Africanists who defend the principles of sovereignty.
“And they also identify true genuine nationalists and Pan-Africanists whom they must attack, because in Pan-Africanism, we espouse the ideas and principles of sovereignty, independence and autonomy which puppets can’t,” Chiluba said.
“And naturally those that espouse those virtues, principals and rights of the African people become enemies of the donors.”
He said one did not need to commit murder in order for donors to hate them.
“You don’t have to commit murder for them to hate you, you just have to be a dwelling genuine nationalist, a real Pan-Africanist and that’s the crime you commit. If you are praised, or if donors praise you, or they don’t say something bad about you, go and check yourself, there is something wrong with you,” he said.
Earlier Chiluba who was mobbed by his praise singers and sympathisers hesitated to talk to the press, referring all queries to his press aid Emmanuel Mwamba.
“I will make a statement through my press secretary Emmanuel. I still remain president I have a secretary,” he said.
Asked about his views on the recent decision by the High Court to throw away an application that sought to register the London judgment found him liable of defrauding Zambians of US$ 46 million, Chiluba said he was happy.
“Tell them I am smiling, am smiling.. it’s a good smile, broad smile a genuine one,” he said.
And Chiluba said he was still part of State House
“Didn’t you see what happened last week to Jimmy Carter? He went to North Korea to rescue an American. He still remains part of White House. When you retire, you still make an extension of State House, and I will continue to do things to assist my government and the people of Zambia and to help you (journalist) when they misunderstand you,” said Chiluba.
Chiluba’s comments come shortly after President Banda last week castigated donors over what he termed interference into the country’s internal affairs for urging government to appeal the High Court judgment that throw out the registration of the London judgment that found the former president and others liable for theft of US $46 million of public funds.
Labels: DONORS, FREDERICK CHILUBA, SUPREME COURT
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COMMENT - What is needed is not the abolition of the Supreme Court, but a Constitution which clearly separates the branches of government - as well as separates the state, the government, and the party in government. And does so through hiring/appointments and budgets.
Abolish the Supreme Court!
By The Editor
Wed 25 Aug. 2010, 04:00 CAT
It only takes a little honesty – if a little is all one has – to see that Rupiah Banda and his friends are not interested in fighting corruption.
From the time that Rupiah took over as President, it has been clear that his government does not have any problems with those who have plundered and continue to plunder our national resources. Rupiah and the minions closest to him have made it very clear that they support these criminal elements and will do whatever it takes to protect them.
Rupiah cannot today say that his government is serious about fighting corruption. His assertion that they have passed a law to fight corruption is nonsense. We say this because laws do not implement themselves but they are implemented by people. Rupiah and his minions have ensured that they have taken full charge of the decision-making process in the implementation of the laws that are meant to fight corruption.
There is not a single professional employed in the government today capable of taking prosecution decisions in which Rupiah and some of his league are interested without his approval. We all know what happened to former chairman of the Task Force on Corruption Maxwell Nkole when he tried to push for the appeal against the acquittal of Frederick Chiluba.
Nkole was fired! And Rupiah told the nation that Nkole’s decision to appeal was a mark of indiscipline. Rupiah had decided that there was to be no appeal in this case and, therefore, Nkole’s attempt was taken as a direct challenge to Rupiah. And accordingly, Rupiah decided to show Nkole who the boss is and had him fired unceremoniously. This is the way that Rupiah relates to all those who are meant to implement the laws designed to fight corruption.
The Anti Corruption Commission is nothing short of a toothless bulldog. All muscle, but no teeth to bite. The little law that we know and the public record of the experience of the Task Force clearly demonstrates that there is really nothing wrong with the laws that are in place to fight corruption. The Task Force, although with great difficulty, was able to secure a number of significant convictions which clearly demonstrated that laws are available, but are they used?
We know that Rupiah’s government does not allow any of these institutions to operate independently. We have not forgotten what happened when the Anti Corruption Commission decided to arrest the Food Reserve Agency executive director Anthony Mwanaumo. They were basically ordered to stop the prosecution. We also know that the senior officer who drove the process of pushing this and other similar cases had her contract terminated.
And it is not difficult to see that Rupiah is a friend and protector of the corrupt because all the corrupt elements are today defending him, he is their darling. Show us one corrupt element in this country who is not today happy with Rupiah? Rupiah’s government is clearly a government of the corrupt, by the corrupt, for the corrupt.
Of course, no one can say that the corruption that we see in Rupiah’s government today started today. It did not start today. It is simply deepening under Rupiah and really taking root because the whole government system is premised on corruption. Rupiah’s government cannot survive without corruption.
This is why they have no shame in championing calls for the abolition of the law against abuse of office. It is only people who know that they are abusing their offices, and intend to continue abusing their offices, who can call for official sanction of the crime of abuse of office. This is what their calls amount to. It is mockery for Rupiah to say his government is serious about fighting corruption.
It cannot be denied that Rupiah’s government is very serious about fighting their perceived political opponents in order to retain power at any cost. In this regard, they have no shame to abuse the judicial process to try and nail their enemies to the cross. This is the only time that the nation sees Rupiah pretending to be serious about fighting crime when in reality, all he wants to do is to fight those that he considers his enemies, politically or otherwise.
Today, Rupiah can claim to be running a government that respects the professionalism of the police when he is asked about what is going to happen to Lucy Changwe, his Deputy Minister for Gender, who remains in government even though it is in the public domain that she has committed a criminal offence. Rupiah would like the public to believe that he never instructs the police to arrest people. This man has no shame and tries to lie with a straight face. In the short time that he has been President, there are so many times when he has bellowed instructions to the police, ordering them to do as he pleases. Just two or so weeks ago, Rupiah ordered the police in Ndola to release taxi drivers who they had arrested in the belief that they had breached the law by blocking George Kunda’s motorcade. Rupiah hoped that that gesture would win him the Chifubu parliamentary by-election. And according to him, he invoked his powers as commander-in-chief to release them. Isn’t this interference with the work of the police? Isn’t this giving orders to the police on who they should arrest and prosecute and on who they shouldn’t?
And who has forgotten how Rupiah had instructed the police during a State House press conference to arrest us for circulating pornography and indeed our news editor Chansa Kabwela was arrested and prosecuted according to Rupiah’s wishes.
And today, this same man wants to tell the nation he doesn’t interfere in police work.
The nation knows that Rupiah and his minions decided not to appeal against the acquittal of Chiluba. There is nothing that anybody, in government, was going to do to reverse the decision Rupiah had made. To justify the decision not to appeal, Rupiah and his circle of sycophants decided to use a claim that has now become very common, that their refusal to appeal was out of respect for the judiciary. There is only one problem with that, and that is the decision whether not to appeal was not for Rupiah to make. It was ultimately supposed to be made by the Director of Public Prosecutions Chalwe Mchenga or even a public prosecutor in charge of the matter. But Rupiah and his minions took over Mchenga’s powers and made the decision for him. And today, very few people doubt that the decision was not made by Mchenga. Everybody knows that Mchenga was merely doing his master’s bidding. And moreover, Rupiah himself made it clear that he had decided not to appeal Chiluba’s acquittal.
Again, they are saying the same thing in regard to appealing judge Evans Hamaundu’s refusal to register the London High Court judgment against Chiluba and his tandem of thieves. Rupiah’s argument is that appealing would be undermining the courts. If matters are supposed to be determined in the Magistrates' Court and in the High Court without appeal, then the Supreme Court should be abolished. But not surprising, these same characters who think appealing any court’s decision undermines the judiciary have no problem helping their corrupt friends to appeal unfavourable judgments. And they are even proposing to add another court – the court of appeal – to our existing courts of appeal. This only goes to show their dishonesty and the hypocrisy that they live with. Anyway, even Zaire’s Mobutu claimed to respect the professionalism of the police and the judiciary. But did he really respect any professionalism?
Today, Rupiah’s government is running the propaganda department for the plunderers using the state-owned and government-controlled media. They even want our people to believe that Chiluba and his tandem of thieves were reprieved by the Court of Appeal in London. Anyway, this is what criminals like to do – tell lies and, therefore, continue to cheat people out of what is duly theirs. Chiluba has never appealed anywhere. The partners of the law firm that Chiluba, Faustin Kabwe and their league of criminals were using to move money were the ones that appealed. The Court of Appeal reprieved them on the basis that it was not sure that as lawyers, they knew the criminality of what Chiluba, Kabwe and other criminals were involved in.
There is nothing in the Court of Appeal that cleanses Chiluba and his fellow crooks from all the filth that they have to carry for the rest of their days on this planet. Everything else they are saying on this score is a lie, a falsehood. Chiluba and his league know that their other lawyers in London – Cave Malik and Company – have had to pay the government of the Republic of Zambia for their part in this criminal conspiracy to defraud the poor people of Zambia of their very limited financial resources. If Chiluba is innocent, why was he scared to allow himself to be tested by cross-examination by the prosecutor in our courts so that he could explain the sources of monies that he claims to be his? No amount of propaganda, posturing will cleanse and absolve Chiluba of his crimes against the poor people of Zambia.
Labels: JUDICIARY, SUPREME COURT
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Supreme Court jails litigant, his lawyer
By Laura Hamusute
Wed 31 Mar. 2010, 04:02 CAT
Rescue Shoulders Estate Agency Limited executive director Victor Chilekwa (c) with his wife and brother Emmanuel when he and his lawyer Nsuka Sambo were sent to prison for contempt of Court at the Supreme Court yesterday - Picture by Thomas Nsama
THE Supreme Court yesterday jailed a human rights activist Victor Chilekwa and his lawyer Nsuka Sambo for three years after finding them guilty of grave contempt of court.
Chilekwa, who is executive director of Rescue Shoulders Estate Agency Limited, was jailed three years suspended for one year on all counts of contempt of court while his lawyer was jailed on one count of contempt, with a year also suspended.
This means Chilekwa and his lawyer will only serve two years in prison.
This is in a matter where Chilekwa and Sambo faced charges of contempt of court after they insulted the court following the loss of an appeal between Masiye Motel's Ltd and Rescue Shoulders and Estate Agency Ltd.
In the High Court, Rescue Shoulders Estate Agency Limited sued Masiye Motels Ltd claiming K 200 million as commission under a contract entered into by the two companies for the sale of Masiye Lodge Motel.
The High Court ruled in favour of Rescue Shoulders Estate Agency awarding them a sum of K100 million but Masiye Motel Ltd being dissatisfied with the judgment appealed to the Supreme Court and succeeded.
It is the loss of this appeal that enraged Chilekwa and his lawyer, prompting Chilekwa to write insulting letters to Chief Justice Ernest Sakala.
Chilekwa's contemptuous letters that got worse in succession were dated January 9, 2010, February 11, 2010 and February 12, 2010.
In one of his letters addressed to justice Sakala dubbed: 'Pay us our money, maintain integrity and root out nepotism from the Supreme Court' signed by Chilekwa and Moses Zulu who is an operations and administrative officer from the same organisation, read in part: "In fact, when handing us the judgment, your own officer of the court, respondent counsel with more than 15 years of legal practice who you interviewed for a High Court judge position said, 'It is a stupid judgment by stupid judges'." Chilekwa continued: "Surely do blame yourselves for attracting these words from among your own amicus curia (friend of the court). What more will the outsiders say? Running the Supreme Court of Zambia on the lines of nepotism will not help this country, as it may only turn Zambia into another Rwanda of 1994 by forcing people to start taking the law into their hands due to the courts' unreasonable irresponsibility in adjudicating cases. From your conduct, it appears it's wrong to successfully perform one's contractual obligations and the party that does not perform its part of the contract must win the case because they are related to you. Why have you allowed your relatives to benefit from their wrong of unilaterally varying the contract and refusing to pay the hard working agents?"
Chilekwa demanded that his case be reviewed.
The second letter he wrote addressed to justice Sakala and the Deputy Chief Justice titled: 'Request for an appointment within seven days with you' (Appeal number 187 A of 2007, Chilekwa asked the court why they had quashed the High Court decision accusing the lawyer for Masiye Motels, Professor Patrick Mvunga, of leaning on nepotism to twist the case.
He stated that there was a cartel of conspiracy in the matter.
Chilekwa also complained that he had been blacked out from attending the Supreme Court hearing.
The letter further read: "This conduct by the Supreme Court of Zambia is very embarrassing to the MMD as a ruling party and we have a duty to reduce or totally eliminate this nauseous embarrassment because people will construe that the MMD had sunk to the lowest levels of unreasonable adjudication by the Supreme Court of Zambia."
In the same letter, Chilekwa demanded that his matter be reviewed, arguing that the Supreme Court would lose its dignified position if outsiders heard about the matter. Chilekwa in his first letter of January 9, 2010 titled, 'spiritually humble request to your lordship to maintain integrity of our Supreme Court by giving the respondents the little due to them', started by quoting High Court judge Philip Musonda.
The letter read: "When delivering an administrative Law II lecture to the second year undergraduate law students in 2007 at the University of Zambia premises, the dignified High Court judge Honourable Philip Musonda said, 'We as judges are called Lords because we are expected to be pure. People cannot worship that which is impure and this is why judges are not expected to be corruptible. Speaking for myself as judge, corrupting me is insulting my Lord Jesus Christ'."
Chilekwa alleged that Prof Mvunga lacked both facts and law to help him win the appeal but appealed 'banking' strongly on his personal relationship with the judiciary top hierarchy and its influence.
After the court received the first letter, it instructed lawyer Sambo to advise his client but they were surprised to receive a second letter that was worse than the first one.
At this point, the court decided to cite Chilekwa for contempt to show cause why he should not be punished but before the summons were finalised, they received a third letter which was more caustic.
One of the letters was co-authored by Moses Zulu against whom summons had been issued but could not be traced. A bench warrant has since been issued for his arrest.
Summons were consequently issued and served on Sambo to show cause why he should not be cited and punished for contempt for saying, “Stupid judgment by stupid judges.”
When the matter first came up, Chilekwa engaged Eric Silwamba to represent him in the matter but after reading the letters, Silwamba told the court that the letters were contemptuous.
He said he had as a result instructed his client to refrain from such conduct in future.
During the consultation with his client, it appeared Silwamba and Chilekwa differed because when the sitting resumed, he applied to withdraw from representing Chilekwa on professional grounds stating that Chilekwa would represent himself.
Chilekwa asked the court for 10 days to engage what he termed as 'a credible lawyer'. He later engaged Sambo.
In his evidence when he was summoned to show cause why he should not be cited, Sambo said he uttered the words, “stupid judgment by stupid judges” in order to convince his client that the situation was not going to change. He admitted that as an officer of the court, he made matters worse but that his client went on rampage immediately he got the judgment.
Sambo ended his testimony by apologising to the court for having failed it as an officer of the court after being directed to deal with his client.
When it was his turn to address the court, Chilekwa prefaced his testimony by asking the court to discharge Moses Zulu saying he was too young to face the heat but the court said Zulu needed to come to court to speak for himself.
He told the court that the intention of the contemptuous letters he wrote was not to insult or demean the court but to cry for his hard-earned money.
Chilekwa, instead of purging the contempt, rubbed it in by accusing the judges of corruption and ruling in favour of their village mates or relatives. He alleged that judge Marvin Mwanamwambwa was a bit too much on the line of corruption while judge Hildah Chibomba was too much on the side of judges from Eastern Province.
Chilekwa said there was a clique of judges who came from the same village and that they ruled in favour of their relatives while those outside the circle did not stand a chance.
He asked the court to play a CD containing conversations between himself and his lawyer saying his lawyer had uttered disparaging words about the judiciary that he believed 100 per cent hoping that if they listened to it, something in the judge's spirits would be stirred.
Chilekwa cited the clique coming from the same village as President Rupiah Banda, Chief Justice Ernest Sakala and Professor Patrick Mvunga.
He said Prof Mvunga was justice Sakala's brother-in-law and the judge Anderson Zikonda who handled the matter in the High Court was an easterner just like Prof Mvunga and that both of them had been teaching at the University of Zambia.
Chilekwa said judge Zikonda and Prof Mvunga were lucky to get 50 per cent of the money he claimed in the High Court as the two had negotiated the amount.
He told the court that his lawyer Sambo told him that he lost the case because of the relationship between Prof Mvunga and the Chief Justice.
Chilekwa even questioned the capability of Prof Mvunga as Professor saying his submissions in the High Court were below par.
Asked by the court whether he was aware that the court had presided over matters involving even fellow judges, his reply was that he was yet to witness “that interesting scenario”.
Chilekwa was also not aware that even the MMD he alleged would be embarrassed by the Supreme Court judgment had lost several cases in court.
He testified that his lawyer had told him all the aforementioned stories and that even when they met after the judgment, the lawyer added fuel to the whole scenario by describing the judgment as a 'stupid judgment by stupid judges' and telling him that judges Mwanamwambwa and Chibomba were too much on the side of corruption and negativity therefore could not withstand the mighty approach of the Professor.
Chilekwa told the court that his lawyer had no kind words for the bench, was bitter and even encouraged his clients not to take cases to court because of what he termed as “the foolishness of the court in twisting things to favour friends and relatives”.
On being reminded that Sambo had applied to join the bench, Chilekwa told the court that Sambo was found to be a lame duck on a constitutional discriminatory clause of him being a Jehovah's Witness.
In passing judgment yesterday, Deputy Chief Justice Ireen Mambilima said the court found as a fact that Sambo uttered the words attributed to him as he would have denied it.
Justice Mambilima said Chilekwa admitted having written the three letters and it would appear that together with his lawyer, they discussed at length and came up with beliefs expressed in the three letters.
She said in alleging corruption against the two judges, Chilekwa was courting a fourth count of contempt in the face of the court. Justice Mambilima observed that to justify the loss of their case, Sambo and Chilekwa came up with an equation of looking at the origin of the Chief Justice and his relationship with Prof Mvunga.
She said the court could see Sambo's jaw drop as his client recounted what he had allegedly told him ending by saying that he believed his lawyer 100 per cent.
Justice Mambilima noted that Sambo watched in awe as his client dismissed his apology to the court as cosmetic saying his lawyer had said more disparaging things about the court.
She described as bizarre, a situation where a lawyer and his client could sit to reduce to record through CD untruths aimed at demeaning and disparaging the court.
Justice Mambilima said if Chilekwa had rationally considered what his lawyer had told him, he would have discovered that Prof Mvunga had lost many cases in court and that there was no constitutional provision that prescribed that a Jehovah's Witness cannot be appointed to a higher bench.
She said Chilekwa's own lawyer failed to inform him of the hearing date.
Justice Mambilima said through out his testimony, Chilekwa showed no remorse by making further allegations of corruption against judges.
She disclosed that it was the court's view that Chilekwa from the outset proposed to write letters and made wild allegations under the mistaken impression that he could intimidate and force the court to change the verdict in his favour.
Justice Mambilima said there was no doubt, through Chilekwa's insolent letters, that he and his lawyer were attacking the integrity of the court. She advised that a line had to be drawn between bonafide criticism, outright insults and insolent language.
Justice Mambilima said Sambo's statement, “stupid judgment by stupid judges”, could not by any stretch of imagination qualify to be criticism made in good faith as it was an outright insult.
She described as preposterous the argument by Sambo that the words were not intended to insult the court.
It is against this background that the court found Sambo guilty of grave contempt.
Justice Mambilima ruled that there was no doubt that Chilekwa in his letters and testimony before the court used insolent language and made serious allegations of improper conduct and corruption, which he tried to justify on the ground of tribal origin.
She said corruption was a criminal offence severely punishable under the law and any person had the right to invoke the criminal justice system against any adjudicator whom they suspected of corruption by reporting to the Anti Corruption Commission (ACC).
Justice Mambilima asserted that wild unsubstantiated allegations of corruption against any member of the bench could not be condoned.
She found Chilekwa guilty on all counts describing his conduct as unacceptable.
Justice Mambilima said Sambo was an officer of the court by virtue of Section 85 of the Legal Practitioners Act CAP 30 of the Laws of Zambia.
She lamented that Sambo abandoned his role and was actually the fuel that propelled Chilekwa to write insulting letters.
Justice Mambilima revealed that never in the history of the country has such an insult been publicly uttered by a lawyer against a court.
The court found Sambo guilty of grave contempt which required a stiffer penalty of a custodial sentence, saying the judgment or proceedings would be handed over to the Law Association of Zambia (LAZ) to mete out appropriate sanctions under the Legal Practitioners Act.
Justice Mambilima then proceeded to pronounce the jail sentences for Chilekwa and Sambo.
In an interview after judgment, Chilekwa said he expected the judgment because he was fighting abuse of office.
Earlier, Chilekwa who said he had a law degree, explained that every person was born a lawyer and the lawyer in them came out when they were aggrieved thus going to court. He said even mothers in homes knew what constituted justice.
Chilekwa said law was not like witchcraft or shrines that had to be kept secret, that was why it was called administrative law to control the exercise of constitutional power.
Asked to comment on the judgment, Chilekwa's wife said she had no comment.
Labels: SUPREME COURT, VICTOR CHILEKWA
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Supreme Court reserves ruling on Sata’s election petition case
Written by Mwala Kalaluka
Wednesday, February 18, 2009 7:53:39 PM
THE Supreme Court has reserved ruling on an application by Patriotic Front (PF) leader Michael Sata's lawyers seeking a vote recount of ballot papers from the October 30, 2008 presidential election. And Sata has said the decision by acting Inspector General of Police Francis Kabonde to deploy police officers during hearing of the preliminaries of the presidential election petition is an intimidation of the court officers.
Deputy chief justice Ireen Mambilima - sitting with other Supreme Court justices namely; Judges Marvin Mwanamwambwa, Sandson Silomba, Peter Chitengi and Dennis Chirwa - set March 11 for ruling on the matter after listening to arguments from both parties.
This is in a matter where Sata has sued President Rupiah Banda, as the first respondent, the Electoral Commission of Zambia (ECZ), as the second respondent and the Attorney General, as the third respondent.
Sata's lawyer, Bonaventure Mutale submitted that there had been a lot of uncertainty from President Banda's lawyers over the application seeking a recount of all manner of ballot papers relating to last year's presidential election during the court's previous sittings.
He said the uncertainty from the defence stemmed from whether the court had jurisdiction to entertain an application of that nature.
Mutale said he would have wanted to walk the court through a number of High Court decisions that had dealt with the issue of recount in previous parliamentary elections.
However, he said the case would be spared such an exercise because President Banda's lawyers had already acknowledged in their affidavits of opposition to Sata's application, that the court does have jurisdiction to entertain such an application.
Mutale quoted from one of President Banda's lawyers, Christopher Mundia's affidavit, where he said an application for a vote recount could be entertained provided there was sufficient evidence to support the application.
Mutale submitted that unlike the presidential petition of Anderson Mazoka and others against Levy Mwanawasa and others of 2002, the application for a recount that was before the court had sufficient evidence backing it.
"Now the question that this court has to determine is whether or not the petitioner has adduced any evidence in support of his application," he said. "I will attempt to highlight some of the areas that [are] important...the petitioners have three categories of complaints arising out of the October 30 presidential election."
Mutale said the first set of violations relates to the use of persons that were not authorised to supervise elections and consequently had no legal mandate to play the role.
He named the constituencies where this allegedly took place as Chisamba, Mwembeshi, Muchinga, Serenje, Milenge, Nakonde, Mbala and Senga Hill.
Mutale said the names of these electoral officers did not appear in the Gazette Notice number 455 of 2008, relating to the appointment of returning officers in the said presidential election.
"That gazette notice will confirm that the returning officers who presided over the named constituencies were not duly gazetted and therefore not appointed to perform those functions," he said.
Mutale said President Banda's lawyers acknowledged the above error in their affidavit opposing the application but that their responses to the issue were startling.
He said President Banda's lawyers said in the case of Chisamba, the returning officer died prior to the election and that another was duly gazetted to replace him.
But Mutale said they had looked at all the gazette notices prior and up to October 30, 2008 but that they had not come across any name that was gazetted to replace the deceased returning officer.
"The only obvious inference to be drawn is that the Chisamba election was conducted by an unauthorised person," he said. "As regards Muchinga and Serenje in Serenje district and also Senga Hill and Mbala, the respondents have averred a startling defence by stating that the names were merely transposed. So that again is a demonstration that a serious error was made...it totally invalidates what was done by these persons."
Mutale said in Mwembeshi Constituency, the name that was gazetted was a James M Siame but the documents from the ECZ forms indicate that James Malupande performed the functions.
He said President Banda's lawyers argue that this is one and the same person.
Mutale said the second category of complaints relates to the averment by President Banda's lawyers that some polling stations in Sikongo and Sinjembela constituencies voted on October 31 and November 1, 2008, which were not prescribed polling days for the presidential election and contrary to the electoral Act.
He said according to a statement by ECZ chairperson Judge Florence Mumba on November 2, 2008, the respondents acknowledged that voting was indeed extended in four polling stations in Sikongo and one polling station in Sinjembela due to a breakdown of three vehicles.
Mutale said looking at the statement by Justice Mumba, it was clear that there was no question of extension and the argument by the respondents that they acted within the law could not hold water.
In the third category of complaints, Mutale said these related to the manner of processing of the documents during the presidential election, which he said had notable discrepancies, as compared to the affidavit opposing the application filed by the ECZ.
He said the discrepancies could be noted in the variances in the tally of polling results when read in figures and in words.
Mutale cited the case of Nkana constituency where Sata's tally of votes was recorded as 12,323 in figures and in words it was reading 12,303, saying the discrepancies brought into doubt the authenticity of the results.
"What is important to note is that the first respondent won this election by a minute margin; a very minor margin of about 35,000 votes," he said. "Our contention in that respect is that in the event of a recount being entertained, there is a likelihood of that minor margin being totally obliterated."
He urged the court to grant the application in the interest of justice and to safeguard a credible election process.
Sata's lawyer, Mumba Kapumpa, said the postponement of elections in the four polling stations in Sikongo and Sinjembela should have been gazetted and widely publicized in the media before they were sanctioned.
But Solicitor General Dominic Sichinga, who led the arguments for President Banda said the application by Sata should be dismissed with costs because it was misplaced.
He said all the issues raised by Sata's advocates had been adequately explained in the affidavit from the ECZ.
Sichinga said there was no sufficient evidence before the court to grant the application in favour of Sata's lawyers.
He said apart from the lack of evidence to justify the granting of the application for a recount of votes, there were no witnesses that had adduced evidence before the court.
He said the presidential petition case involving Anderson Mazoka and others against Levy Mwanawasa and others adequately dealt with the issue of recounts.
"The third respondent [Brigadier General Godfrey Miyanda] had like in this instance before you applied by way of summons for an order of vote recount of the presidential election of December 27, 2001," Sichinga said.
He said the Supreme Court's ruling on the matter was there.
He also said the application should not be allowed because Sata's lawyers tabulated only about 24 constituencies out of the 150 constituencies and a few polling stations, as places where a vote recount was required.
Another of President Banda's lawyers Christopher Mundia received giggles and mild heckles from some PF cadres sitting in the court's pews when he wondered why the PF candidate was the only one who had issues with the electoral figures when there were other presidential candidates.
"This application is not only misconceived but frivolous," said Mundia.
Professor Patrick Mvunga said the complaints by Sata's lawyers show that there were controversies in the election that would only be resolved by a trial.
He said the reliance by Sata's lawyers on information gathered before the trial was no more than hearsay, which could not justify a recount.
Prof Mvunga also wondered why Sata's lawyers wanted a recount of votes they had rendered invalid in their submissions.
In response, Kapumpa said Mundia's arguments that only a timetable should be gazetted in an event of a postponement of an election, were totally misplaced.
Sata's lawyer, Wynter Kabimba, said the matter at hand was a presidential election petition, which was governed by article 34 of the Constitution, as read together with article 41 (2) and further read with section 21 (3) of the electoral Act of 2006.
He said the law was not restrictive in this case and that it cast a very wide net as to the jurisdiction of the court in a presidential election.
On the argument by Sichinga that all the issues raised by Sata's lawyers had been dealt with, Kabimba said it was up to the court to determine the way forward.
He said the petition that was before the court focuses more on the administration of elections than the margins between the respondent and the petitioner.
He said in the interest of justice it would be important for the court to grant the application so that the administration of elections by the ECZ is brought under scrutiny and a firm stance is taken in that regard.
Kabimba said failure to grant the application for a vote recount would render the presidential petition case an academic exercise.
And later Sata, who advised his cadres not to fight with the police since they were also suffering like any ordinary Zambian, said Kabonde was hell-bent on protecting his contract.
He said there was no law that bars people from partaking in proceedings in an open court.
"They are just trying to send a message to the judges," said Sata, as he urged his cadres to peacefully disperse from court premises and return on March 11.
Labels: ELECTIONS, SATA, SUPREME COURT
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