Zambian High Court judge Evans Hamaundu last week set aside an order that was granted to the Attorney General to register a London High Court judgment against second President Dr. Frederick Chiluba and seven others in which they were found guilty of stealing US$46 million public funds. Judge Hamadudu argued that there is no such provision under the Zambian laws.
From mid-2002, a few months after Zambia’s second president, Frederick Chiluba stepped down as Republican president, his successor, Levy Mwanawasa, now late, summoned parliament where he disclosed massive and systematic abuse of the national treasury by his predecessor.
President Mwanawasa called for the removal of Chiluba’s immunity so that he could face prosecution for crimes that came to be known as the plunder of national resources with which he was accused together with some of his close advisors such as former Finance Minister Katele Kalumba and former Director General of the Intelligence Service Xavier Chungu. Both men, together with others, including military commanders under him, have since been convicted for related offences.
Dr. Chiluba was last year acquitted in controversial circumstances after a seven-year long trial in which he was jointly charged with others for theft of US$500,000 from an intelligence account.
Just like his acquittal last year, the High Court decision on August 13 2010 attracted attention in the Zambian blogosphere and social networking sites such as Facebook.
According to Elias Muanshya, the London judgment was doomed right from the start because of what he calls “judicial colonialism”:
Zambians were told that the reasons why the Attorney General Hon George Kunda, SC sued Chiluba in London were to reach him where the Zambian courts could not reach. Kunda and Mwanawasa alleged that Chiluba had stashed millions of dollars outside the Zambian court’s jurisdiction. And for the government to confiscate those millions they needed to use a European Court; and England was their natural choice. They told us that once they obtain the judgment in England, it would be enforceable in the whole of Europe and as such, they would bring back Chiluba’s stolen millions from Belgium, France and Switzerland. That sounded like a very good plan.
Another reason they went to London, we were told, was that the Zambian government was not confident of getting back the money if they had used the Zambian courts. They had both jurisdictional and competency problems with the Zambian courts. They averred that Chiluba’s matrix of plunder would be too complicated for an average Zambian judge to comprehend or even handle. That was the reason why they had to look to England and not Kitwe or Chipata High Courts.
The Zambian government, Elias argues, should have trusted local courts:
….Mr. Justice Hamaundu [the judge who dismissed the application to register the London judgment] has demonstrated the fact that we would rather have injustice done by ourselves, than justice served from London. Injustice in Lusaka is rather by far more preferable than justice served from the doorsteps and the gravel of Mr. Justice Peter Smith. The London judgement was alright in so far as it was obtained to take the money that Chiluba had taken to Europe. But beyond that, it had the potential of being a tool of juridical colonization. If the Zambian government was serious about getting Chiluba’s millions in Zambia they should have commenced legal proceedings in the Zambian court system. They should have trusted the Zambian courts to come up with a fair judgment. But if they mistrusted our courts and insulted our courts and poured contempt on our learned judges why should they now turn around to try and get the same courts to recognise an imperial judgement from London? There is one old rule that says that you cannot have your own cake and eat it too.
Yes this is a betrayal to Levy. I don’t think Levy was that daft to take the court to London and spend so much money on it if he knew that it can not be basically enforced anywhere. Something fishy here. Looks like this is a real scam here involving the Head of State, the current Judges and Don Chiluba himself. Looks like the Mafias have taken over and am sure the Mafias in Sicily, Italy are clapping hands for these graduates of crime, the way they have raped Zambia. Anyway we know nobody will touch Chiluba as long as RB is in power. Time to move on, we have wasted enough money already on this non-winnable case. The mafias have invaded the system.
Another reader calling himself viva justice writes:
Bane (colleagues) the case is over. The same useless evidence was brought before a criminal court in Zambia and at the end of it all Chiluba was charged with theft of only 500,000 dollars! Now surely if the London High Court claims the man stole 45 million dollars why did Mutembo (Nchito, private prosecutor for the state) fail to prove that amount of money in a proper criminal court? That’s because the burden of proof in a criminal case is higher and must be beyond reasonable doubt whereas in a civil case like the UK one it is just on the basis of balance of probability. I don’t understand why the LAZ (Law Association of Zambia) does not educate people on these matters…
Trigo says that Chiluba remains a thief despite the failed attempt to register the London judgment:
Though the high court of Zambia has failed to register it, Chiluba still remains a THIEF in the eyes of the world. When ever he is obtaining a visa or when he is signing certain documents overseas when there is a question HAVE YOU BEEN CONVICTED OF ANY CRIME OR TAKEN TO COURT BEFORE the answer he will fill in is YES. He can pretend to be free in Zambia but his not in the WESTERN COUNTRIES. The actual judgment was in U.K.
Malaika argues that Chiluba has in fact never been found guilty of anything:
Chiluba has not been found guilty of anything, he was only found liable in the London court. In civil courts there are no guilty verdicts unlike in criminal courts. Chiluba was found not guilty in a criminal trial in Lusaka. In legal terms, and despite what people believe, Chiluba is not a criminal and has no criminal record.
Reacting to a story that Transparency International Zambia (TIZ) wants the registration of the London Court judgment to go all the way to the Supreme Court, Kibakimani says that he is not sure if the case against Chiluba is conducted in the interest of the Zambian people:
This topic is a difficult one and the reasons are:- 1) Chiluba abused his Presidency and most of the allegations that have been raised against him hold alot of water, so all in all, Chiluba need to be taken to task.2)However, the pipo charged with ensuring that Chiluba is taken to task again abused their privilaged position to settle scores that may have nothing to do with the common citizens’cry of wanting accountability from Chiluba. As revalations are comming, these guys were just as crooked as Chiluba.
Therefore, while we would want to really push the matter as far as possible, can we really be sure that what is being done is been done in our interest? Was spenind all those millions, in many cases breaching procurement procedures, using underhand methods really helpful to the cause of the commoner’s plight?
Is it not ironic that pipo like Kunda donot seem to have a possition on this matter?
On another website, the Zambian Watchdog, ZWA!1! wrote under the story Chiluba Wins London Judgment Case:
I really don’t understand all these complaints!!! WHY ARE PEOPLE SURPRISED AND COMPLAINING?? This was EXPECTED. Let us just forget about fighting corruption in Zambia. We have failed miserably. If we forget about fighting corruption and stop talking about it, that will be even better for (our) own health. There is no point talking about corruption when you are doing nothing about it. This has proven (to) our neighbours: there is nothing special about Zambia. The truth is that MWANAWASA was a special person, very special person compared to the rest of us. I would rather we actually got rid of the Anti-Corruption Commission because it is serving no purpose. The Auditor General’s Office is also a waste of money. We are still too backward to grasp the essence of these sophisticated systems. PERIOD.
Another reader signing himself as Ku Masangalatoni wrote:
George Kunda (Vice President and Minister of Justice) has a lot of explaining to do as Minister of Justice and Attorney General at the time. If he had known, or he pretended not to know, that a British judgment was unenforceable in Zambia, or (all) he wanted to do was to please his boss, Levy Mwanawasa. If Rupiah is genuine in his mission to uplift Zambia, he should fire Kunda for wasting the nation’s resources and time pursuing a matter that was not going anywhere right from the beginning.
I have also looked at the implication of the High Court judgment for next year presidential election. Will the High Court judgment help the current president?:
Chiluba’s fortunes changed after the death of Mwanawasa who died in August 2008 and Rupiah Banda took over as president and the two have been very close from the time Banda took over. Chiluba has also been publicly campaigning for Banda at every opportunity.
Whether Chiluba’s absolution of both the criminal and civil cases of plunder will endear President Banda to the citizenry remains to be seen.
It is too early to tell whether the handling of Chiluba’s cases will have a bearing on the election results especially on President Banda who is accused of interfering with the judiciary to seek favorable outcomes for his newly founded friend. Chiluba has publicly announced to be a special political consultant for President Rupiah Banda.