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Wednesday, 30 September 2009

CIVIL SOCIETY ORGANISATIONS ON ACQUITTAL OF DR CHILUBA

Press Statement on the Acquittal of Dr. Frederick Chiluba and the general justice system in Zambia delivered by 17 Civil Society Organisations on 30th September 2009

Theme: One Land, One Nation and One Law is our Cry

1. INTRODUCTION

Members of Press, invited guests, ladies and gentlemen.

NGOs want Chiluba back in court

The past few weeks have been defining moments for Zambia. We have seen the conclusion of some of the corruption cases against former President Frederick Chiluba. We have all had occasion to listen to Government’s reaction to the acquittal of Dr. Chiluba and most importantly, we have all witnessed the reaction of the former President himself. We have also seen solidarity marches and other public events in support of the acquittal.. As Civil Society Organisations, we have taken time to analyse the different issues at play and gauged the public dissatisfaction with the judgement and calls for restoration of the immunity of Dr. Chiluba. This press conference has been called by a consortium of Civil Society Organisations to state their position on matters of governance and justice in Zambia and in particular on the recent acquittal of former President Dr. Frederick Chiluba. What we present to you is our common and united position and we address specifically the following issues – 1) the judgement by the Presiding Magistrate in this case, 2) the events surrounding the appeal and 3) the registration process of the London High Court.
Additionally, we do comment on calls for restoration of Dr. Chiluba’s immunity and we end by stating our course of action in our continued advocacy for fair justice for all anchored on the theme – One Land, One Nation and One Law is our cry..

2.0 THE JUDGEMENT

As a preamble, we want to categorically affirm our respect for the dignity and independence of the judiciary as provided for in the Constitution of the Republic of Zambia. As Civil Society Organisations, we recognize and desire that our Judiciary remains insulated from criticism but above all, it is our fervent hope that the Judiciary discharges its functions in an unbiased manner and above any reproach. That is the Litmus test for our Judiciary – it will not help us as a people
to turn a blind eye to acts of omission and compromise by the Judiciary despite the respect that we accord this arm of government. Indeed, we do acknowledge that any court process could lead to either a conviction or an acquittal and that the reactions to any judgement will either bring about contentment or discontent as the case maybe. As Civil Society Organisation, we fall in the category of those Zambians who are saddened by the Judgement of the learned magistrate Honorable Jones Chinyama. This reaction is based on the type and quality of evidence adduced before the court, which in our view, adequately supported the case of impropriety on the part of Dr Frederick Chiluba who illegally benefitted from public funds in the Zamtrop account. We are not alone in this belief because even the Government of the late President Dr. Levy Mwanawasa SC
also strongly supported this position as evidenced by the statement made by the then Chief Government Spokesperson Hon. Mike Mulongoti when he plainly stated Government’s position on Dr. Chiluba’s defence that he had kept his personal money in the Zamtrop account when he was quoted by the Times of Zambia in its edition of Saturday, May 12, 2007, Mr. Mulongoti said “…the advice that the former president puts his personal money into a ZAMTROP account could only have been given on account that the sources were illegal and the public did not have to know about them.”
We wish to remind the public that Ms. Anna Chifungula, the Auditor General who was called by the defence to give evidence in the matter stated that one can not put private money in a government account, and in the event of this happening, the said private money is forfeited to the State. It becomes government money. And assuming that Dr. Chiluba had money in the Zamtrop account, the court should have noted the requirement for Dr. Chiluba to prove the source and ownership of the same money at the defense stage. This was not done and it leave everything to conjecture as to the source of the funds which the former President is now claiming to be his The implication of the judgement is that public and/or elected officials can now knowingly and willingly deposit their private funds in a government account without facing the consequence of the law especially if there is suspicion to the sources of the funds and the intended use. . There are a number of other points of inconsistency in the judgement which makes it difficult for us to appreciate and indeed accept the innocence that it bestows on Dr. Chiluba. This judgement attracts more questions than answers.
Against this background we find this judgement highly questionable and we are not surprised that it has attracted a lot of criticisms, with some questions to be answered by the Government of the day. It is difficult to ignore the statements by different Government leaders which all go to explain the growing political interest in these matters.
There are several aspects of this judgement which give an indication of possible political interference. Our view point has been confirmed by utterances by Hon. Mike Mulongoti that jailing Dr. Chiluba would have been costly and that some people should be able to go to jail while others remain. Hon. Mike Mulongoti further said:
“We consider the general harmony in the country. Even courts are sensitive to the political situation in the country. You cannot just say, jail everyone. No, there is forgiveness, there is reconciliation. Everything is there. So Chiluba, whether we like it or not, he was president of Zambia. Not everyone hates Chiluba. There are wrong things he did, there are also good things he did” (The Post Newspapers of Monday, September 21 2009).
2. It is such statements from high ranking government officials which convince us that this matter was handled carelessly and politicized by the Government. Hon. Mulongoti’s statement clearly demonstrates that the judgement was politically engineered as he implicitly admits that Chiluba did some wrong things but the courts of law were made to dance to the tune of the political sensitivity in the country instead of concentrating on the legal provisions.
We wish to state that we have studied the judgement itself and we have noted a number of flaws a few which include:
1. The Learned Trial Magistrate neglected to consider finding the accused of the commission of a minor or alternative offence
2. The learned trial Magistrate breached the rules of criminal procedure when he decided to exclude otherwise admissible evidence after it had been admitted by himself.
3. There is also an irregularity on the no case to answer stage or case to answer stage.
4. There are also a number of procedural issues that were not complied with.
5. The weight attached to the unsworn evidence by Dr. Chiluba.
We have done a detailed analysis of these irregularities that are contained in more than 40 pages
that all interested Zambians can be emailed to.
2.1 THE IMPACT OF THE JUDGEMENT
It cannot be denied that the case of former President Dr. Chiluba was a high profile one and the outcome of this case has several implications on the local and international levels
We wish to note the following impacts:
1. The Judgment has the potential to completely erode public confidence and trust in the justice system and judiciary in Zambia.
2. Zambia’s governance record will undoubtedly come under intense international scrutiny and our reputation as a country will be called into question;
3. The ruling by the learned magistrate that former President Chiluba was not a public servant has the potential of creating comfort zones where elected leaders can plunder public resources with impunity. It also raises unnecessary confusion on whether elected leaders are public officials or not.
4. The judgement sets a bad precedent on the utilization of public funds. This is why we welcome the stance of cooperating partners who have expressed concern to ensure that public funds that include tax payers money from their respective countries is well utilized.
3.0 THE QUESTION OF THE APPEAL
Article 56 (7) of The Zambian Constitution provides that, “In the exercise of the powers conferred on him by this Article, the Director of Public Prosecutions shall not be subject to the direction or control of any other person or authority..”
3. Contrary to this Article, Vice President Hon. George Kunda who is a member of the executive was quoted confirming that government would not appeal against former president Chiluba’s acquittal saying, “It will amount to professional misconduct for the DPP Chalwe Mchenga to appeal against Frederick Chiluba’s acquittal because the case has no merit.” He further said that, “on Chiluba, it would be unprofessional, in fact, professional misconduct for the Director of Public Prosecutions to appeal knowing well that the case is frivolous and of no merit whatsoever for him to go ahead and lodge an appeal.” (The Post Newspapers, 23rd September 2009)
The statement of Hon. Kunda that government would not appeal amounts to directing the DPP not to appeal contrary to Article 56 (7) of the Constitution. As such it is our considered view that the DPP was intimidated by Hon. Kunda. Hence, the DPP’s withdrawal of the appeal confirms that he is towing Government line in a political decision which is unconstitutional.
Against this background, we civil society organizations are of a strong and united view that the office of the DPP was interfered with and that the right course of action by Mr. Chalwe Mchenga, our DPP would have been to allow the appeal succeed and let the due process of the law prevail.
Therefore we are of the strong view that the withdrawal of the appeal amounts to conspiracy to subvert the course of justice.
We wish to reiterate the reality that Mr. Mchenga misled the public by purporting that he needed to grant fresh permission to the prosecutor to appeal. It’s an extremely unfortunate position the DPP took because according to precedent set by High Court Judge M S Mwanamwambwa’s judgement of June 5, 2008 in The People Vs Julius William Banda,- in that Judgement, it was said a prosecutor has power of immediate appeal to the High Court. According to this judgment’ and we quote, “the language of Article 56 (4) of the Constitution and sections 87 and 321 (A) of the Criminal Procedure Code are clear. Applying the plain meaning rule, I hold that Article 56 (4) and sections 87 and 321 (A) do not require the Director of Public Prosecutions to issue a statutory
instrument specifically authorizing a police public prosecutor to lodge an appeal under section 321(A). Just as much as a police public prosecutor can institute and undertake criminal proceedings in the subordinate court on behalf of the Director of Public Prosecutions, he can lodge an appeal from such proceedings to the High Court, right away. I hold that the delegated authority of a police public prosecutor under Article 56 (3) (4) and (6), and section 87 of the criminal procedure code to institute and undertake criminal proceedings on behalf of the Director of Public Prosecutions, extend to lodging an appeal from an acquittal in the subordinate court to the High Court, when the need arises to appeal. There is no need for a fresh mandate.”
The judgement went on to reaffirm and we quote, “this equally applies to a legal practitioner who represents the Director of Public Prosecutions in criminal proceedings before any court”. Mr. Mchenga has thus betrayed public interest by withdrawing the appeal from the higher court especially that the grounds for appeal have merit. In fact the position of the Law Association of Zambia (LAZ) is clear that there were enough grounds for the DPP to appeal. As civil society organizations we strongly endorse the action of the public prosecutors to appeal which was withdrawn in questionable circumstances by Mr. Mchenga.
4. We therefore disagree with the Minister of Justice Hon George Kunda who said the case had no appellable merits. It seems Honorable Kunda has forgotten that he was the one as Justice Minister and Attorney General during the Mwanawasa era who on behalf of the Zambian government took Dr. Chiluba to court and articulated himself very well about the merits of this case. These unfortunate events in the history of judicial system have eroded credibility of the office of the DPP and that of the Minister of Justice. It is crystal clear that these two public officers have failed to protect and uphold the Republican Constitution.

4.0 GOVERNMENTS U TURNS ON CHILUBA’S CASES

As concerned CSOs we have also noted with dismay the high level of pretence exhibited by the Vice President, and some Ministers over Dr. Chiluba’s acquittal. It is interesting to note that the same ministers who were castigating Dr. Chiluba when the late Dr. Levy Mwanawasa was President have now turned against what they were saying at that time.
We want to remind Zambians on what Government’s position was when President Mwanawasa was alive and Hon. Mike Mulongoti was Chief Government spokesman and we quote as follows.
4.1 Times of Zambia, Saturday, May 12, 2007: Main Headline; Don’t Incite Zambians,
Mulongoti tells FJT Government has said former President, Fredrick Chiluba, should have defended himself in the London High Court than attempt to incite Zambians to rise against the Government. Chief Government spokesperson, and Minister of Information and Broadcasting Services, Mike Mulongoti said in a statement in Lusaka yesterday that Dr. Chiluba as a defendant was entitled to his opinion about the London High Court and could have argued in court if he did not refuse to defend himself.
He said he was particularly concerned with Dr. Chiluba’s attempt to summon the people of Zambia to his side but that Government has a duty to protect interests of the people when their funds are alleged to have been put to personal use by leaders like former President Chiluba whom they had entrusted to run their affairs. “Having failed to explain how much was donated and by who and considering that what was withdrawn from the ZAMTROP account followed in-flows from the Government, the judge concluded that all the money belonged to the State,” Mike Mulongoti said..
4.2 Zambia Daily Mail Newspaper of Friday November 30, 2007, Headline, Mulongoti
Challenges FTJ over allegations 5 .Mr. Mike Mulongoti castigated Dr. Chiluba and we quote,” Dr Chiluba was telling lies that Government departments had been requested to transfer their insurance policies from the Zambia State Insurance Corporation to Professional Insurance Corporation.” Mr. Mulongoti further said, “Dr. Chiluba was found liable of theft of public funds by a London Court and was still appearing in court of other cases and that was evident of how bad his regime was. Millions of Dollars were not only misappropriated by government officials but were also stolen by some former leaders who were now masqueradering as angels,.”Mulongoti said in a statement.
4.3 Zambia Daily Mail, Headline, Chiluba’s complaint baseless – Mulongoti
Chief Government spokesperson, Mike Mulongoti, says there is no basis for former President, Fredrick Chiluba, to accuse his successor, Levy Mwanawasa, of working with Britain to secure his conviction in cases of alleged corrupt practices. “I have difficulties to find any basis for Dr Chiluba to say the President has connived with Britain to secure his conviction,” he said. Mr Mulongoti said the British court had no interest in Dr Chiluba because it was merely helping Zambians to determine whether or not their complaints against the former head of State over alleged theft of public resources were justified.
In all these statements, Hon Mulongoti was very clear that former President Dr. Chiluba’s regime was involved in theft of public funds. We now wonder why he has changed position.

5.0 THE LONDON HIGH COURT JUDGEMENT

As Civil Society Organisations, we fully recognise that the process of registering the London High Court judgement is before the courts of law and it is not our intention to be contemptuous by commenting on this process. However, we would like to register our concern about the inordinate delays that this process has encountered.. We would want to encourage the Judiciary to expeditiously complete this process. We wish to serve notice as well that we are keenly following this process and eager to see the final outcomes. . We know that the London High Court Judgement is in extent of $400 million if you put all the defendants together and we do note that Government through the Taskforce has already started recovering some of the money from other defendants apart from Dr. Chiluba.
We commend the Task Force for some of the recoveries made so far against Mr. Attan
Shansonga, one of the co defendants. Former Taskforce Chairperson, Mr. Max Nkole confirmed to the nation that Boutique Basili who was making the shoes and suits for Dr Chiluba has since paid back the funds that the Boutique received.. We are happy as CSO’s that others have started paying back these funds and we look forward to the completion of the London judgement. In short, the London judgement confirms that Dr. Chiluba still has outstanding cases which need to be concluded accordingly.. It is in the best interest of all Zambians to ensure that Government must recover all public funds.
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6.0 CHILUBA’S IMMUNITY
The Task Force still has several cases, which are still outstanding – this is a point that cannot be disputed or ignored We therefore wonder why Dr. Chiluba expressly wrote to the Speaker of the National Assembly requesting the restoration of his immunity. The Task Force has publicly confirmed that they are investigating him on a case involving 20 million United States Dollars for the arms that were not delivered. Other matters still outstanding involve the Carlington maize saga involving $US8.5 million, (apparently Mr. Chiluba claims the similar amount of US$8m as personal money in the Zamtrop account whose sources are unknown).
The criteria of restoring Chiluba’s immunity has already been said not to be in existence in the Constitution. We would like to strongly appeal to the Speaker of the National Assembly not to entertain Chiluba’s request to restore his immunity. If Dr. Chiluba strongly thinks that he is innocent of any wrongdoing, we wonder why he is in a hurry to have his immunity restored.

7.0 DEMANDS

In the light of the above, we demand the following:
1. That the Minister of Justice, Hon George Kunda and the Director of Public Prosecutions, Mr. Chalwe Mchenga must step down from their offices for failing the Zambian people.
2. That the Judge in Charge of the Lusaka High Court and if necessary the Chief Justice must exercise supervisory jurisdiction and call the case record in the Chiluba case and review it.
3. That Government Ministers including the Republican President must stop intimidating Zambians who have totally refused to accept the acquittal of former President Dr. Chiluba.
Our rights should not be violated simply because Government are more interested in
maintaining general harmony than promoting the rule of law; We find it annoying that
Government finds the actions of those of us who are opposed to this acquittal as causing anarchy and yet Government is quiet when cadres march in solidarity with Dr. Chiluba. We will not accept these double standards any more.
4. That the Judiciary should rise to the occasion and ensure that judicial system is not biased and compromised to serve narrow political interests of the Governors. We demand for one justice system for all Zambians- rich or poor.
5. Dr. Chiluba should stop abusing Gods name in this case as Hon. Mulongoti clearly stated that his regime stole money.

8. WAY FORWARD

1. We shall petition the Speaker of the National Assembly not to entertain Dr. Chiluba’s request for restoration of his immunity and we will picket Parliament if need be for a number of days to make our views known on this matter. In much the same way that we picketed at Parliament demanding for the lifting of Dr. Chiluba’s immunity, we will mobilize the general public to demonstrate against the restoration of the immunity – not until all cases are concluded

2. We shall immediately embark on nationwide campaigns to demand for the appeal process against the acquittal of Dr. Chiluba to go head without any hindrance. Our nationwide campaigns will equally sensitise the Zambian people to guard our justice system jealously and ensure that it is not compromised for political gain.
3. We are devising several strategies to involve the Zambians who want to make a contribution to cleaning up this country of corruption and other malpractices. For a start, we shall adopt some of the strategies which worked very well during the anti-third term campaign including honking and whistling to show support for the calls for the appeal and fight the ugly spectacle of corruption that this country is witnessing. We call upon all Zambians who love this country and are worried about corruption to wear black and honk or whistle every Friday at 17:00 hours for 10 minutes. We call upon all Ministers and Senior Government officials who hate corruption to join in this campaign.
We stopped Dr. Chiluba from going for a Third Term, we are determined to use the same system to advocate for this appeal to be heard. This is not about causing anarchy as Government would want the people to believe, this is a fight for justice.

9. CONCLUSION

This entire case is a clear testimony of the current Governments lack of political will to fight corruption. The lack of political will has unfortunately exerted a lot of pressure on our judiciary to start making political instead of legal judgements. We want Zambia to have one land, one nation, and one law which is our cry and not two laws one for the poor and another for the rich and powerful.
God Bless Zambia and we thank you all.