The Law, Authority & Public Interest...Who Prevails..Youths or the Powerful?

Mchenga fails to see damn good grounds of appeal

Written by Editor (Post Newspaper)

There is need for the nation to continue to reflect and meditate over Frederick Chiluba’s acquittal by magistrate Jones Chinyama. There is also need to deeply reflect over the manner in which the government of Rupiah Banda has handled the Chiluba case. And here, it is important to analyse the reasons they have given for refusing the matter to be appealed and decided upon by the High Court. This should be looked at in light of how they were quick to accept and celebrate Chiluba’s acquittal even before the reading of the judgment was completed. Last week, Chalwe Mchenga, the so-called Director of Public Prosecutions, out of desperation, gave some reasons why he collaborated in the decision to ensure that Chiluba goes scot-free.

Mchenga said there was no good case for appeal because the grounds were not sustainable, were weak. He went further to say the money that Chiluba is purported to have stolen was his own money that he had deposited in the government’s Zamtrop account. This is what Mchenga said in trying to justify his criminal decision not to appeal. But let’s closely look at his claims. Can Mchenga really claim that there was no ground strong enough to sustain an appeal? Our answer is a categorical no. The grounds that the Task Force had put in that appeal are not frivolous; they are very solid. And moreover, Mchenga is not a judge to decide matters in his chambers.

If this was his approach, which we don’t think is, there would be very few cases that would be going to court today because his own chambers is losing so many cases in our courts; their success rate cannot be said to be anywhere near 100 per cent. And we have matters in court right now that Mchenga has sanctioned which even a layman can see that there is no case here; but nevertheless, Mchenga has sanctioned the prosecution of such hopeless cases. And examples of these are many. The truth is Mchenga is not being truthful over his decision to withdraw the appeal against Chiluba. And Mchenga’s decision to withdraw that appeal has nothing to do with law, with the merits or demerits of the case. It has everything to do with the wishes of his political masters who tell him what to do. And we are not being malicious in saying so because this is the way Mchenga operates. He operated in this way with Chiluba over the Mactribuoy issue. And he prostituted himself in the same way with Levy Mwanawasa and George Kunda over the Kashiwa Bulaya case.

Today, Mchenga is doing the same thing over the Chiluba case with Rupiah and George. Clearly, this is not a matter of law; it is a matter of criminal dishonesty on the part of Mchenga who has surrendered constitutional responsibilities of the Director of Public Prosecutions to Rupiah and George. Today, these powers are being used to allow criminals who are their friends to go scot-free, to escape justice. We are being brutally frank with Mchenga because he has pushed his luck too far. We did not go for him in this manner over the Bulaya case but now we feel the truth has to be known by all our people because Mchenga’s abuses are threatening everything this country has achieved over the last 44 years. For Mchenga, pleasing George and, through George, Rupiah is more important than fighting corruption. Mchenga has never refused to do anything no matter how wrong it is for George. Unlike Caroline Sokoni who sacrificed her job by refusing George’s evil and corrupt manipulations, Mchenga went on to sign a nolle prosequi for Bulaya – a thing Caroline had refused to do and as a result lost the opportunity to be confirmed as Director of Public Prosecutions. Mchenga would rather betray the Zambian people than tell George that he is wrong. This is the person who is managing our public prosecutions.

Mchenga is a pathetic person, a danger to our national security.We shouldn’t forget the abuses that the office of Director of Public Prosecutions has been exposed to over the years. It is the likes of Mchenga who have been used to persecute innocent people whilst turning a blind eye to real crimes and criminals. Mchenga and his type have had the courage to stand in court and prosecute or persecute Chiluba’s political enemies just ‘to teach them a lesson’. We have already talked about Mactribuoy. That unfortunate fellow who is now deceased was prosecuted for all sorts of things just to teach him a lesson that you don’t flirt with Chiluba’s wife and get away with it. Chiluba even changed the law and made theft of motor vehicle a non-bailable offence so that Mactribuoy could be kept in jail, all this because Chiluba suspected that Mactribuoy was having an affair with his then wife. Whilst Chiluba was doing this to Mactribouy, he had taken over Regina, who was Mwanza’s wife at the time.

There are many innocent people Mchenga and his type prosecuted on behalf of Chiluba. Princess Nakatindi Wina, the late Dean Mung’omba, Rajan Mahtani and indeed Dr Kenneth Kaunda suffered detention, humiliation and physical and psychological torture because Mchenga and his friends could not tell Chiluba that there was no case against these people. And yet today Mchenga is telling us that he stopped the appeal of the Chiluba case because it was weak. When did Mchenga become this professional in his dealings? If we had not looked at the appeal ourselves and did not have the opportunity to follow the evidence the way we have, maybe Mchenga could have cheated us. Even with the rudimental law that we have learnt from the law school and through ZIALE, Mchenga is not making sense; Mchenga is simply trying to cheat using the law. As it is said, you can fool some people sometimes, but you cannot fool all the people all the time. We have taken time to look at the grounds of appeal.

It is not possible for any honest lawyer to say they lack merit. What lacks merit is Mchenga’s decision to withdraw that appeal. We know that for Mchenga and his political masters, the appeal lacked political merit because it was going to undo what they have obtained by the dint of deceit. If they were very clear that there is no case for appeal, they would have been the first ones to push for an appeal so that the case is permanently rested and their names are cleared of collusion in Chiluba’s acquittal. But they know very well that given an honest judge, the High Court would reverse Chiluba’s acquittal. And this is something they can’t take a risk on. That is the only reason that they stopped the appeal. We say this because that appeal wasn’t going to take long in court – it was going to be cleared in one or two sittings. Let’s now turn our attention to the seven grounds of appeal that were put up by the Task Force.

In the first ground, the Task Force argued that it was wrong in law for Chinyama to fail to convict Chiluba having found as a matter of fact that money from the Ministry of Finance was used for Chiluba’s personal and unlawful benefit. After having found this as a matter of fact, Chinyama clearly failed to apply the law and accordingly convict Chiluba. What is weak about this ground?In the second ground, the Task Force argued that even if Chinyama’s argument that there was some other money in the Zamtrop account which could have been Chiluba’s money, according to him, were accepted, where did this other money come from? Did Chiluba explain the sources of this money? Was Chinyama satisfied that this money was not a product of crime? Chiluba never testified under oath to be cross-examined. But how then did Chinyama resolve this issue? In the case of Faustin Kabwe and Aaron Chungu, he convicted them for failing to explain the sources of monies they were playing with. Why was Chiluba different? Chiluba, like Faustin and Aaron, having failed to explain the sources of the monies he was using, should have been convicted under Section 188 of the Criminal Procedure Code. This is the law we learnt from law school and ZIALE, not the law Chinyama is applying.

Having failed to apply and contradicted himself within the same judgment, the state has a good basis for appealing Chiluba’s acquittal. Even on this ground alone, an appeal could be sustained. On the third ground, the Task Force argued something that makes a lot of sense even in simple logic. They were saying that Chinyama was wrong in law when he claimed that he was not convinced that Chiluba did not have private monies in a government account. How can a court of law say that a person can have private monies in a government account when Section 7 of the then applicable law the finance, control and management Act, clearly stipulates that monies deposited in a government account are government monies? If Chiluba had kept his private monies in such an account, he would be required to account for it, to show receipts, which he did not; or even proof of any previous attempt to claim that money from the state. For seven months after leaving State House, Chiluba never claimed any money from the Zamtrop account as personal money. How then can Chinyama say that he was not convinced Chiluba did not have private monies in a government account whilst convicting his accomplices? Such duplicity demonstrates serious defects in Chinyama’s acquittal of Chiluba, opening solid basis for an appeal. This same Chinyama, according to the grounds of appeal, had demanded that there was need for clearer evidence of the sources of the alleged private monies when he found Chiluba with a case to answer. Suddenly, he doesn’t need clearer evidence for Chiluba. All it took was an unsworn claim by Chiluba who refused to be cross-examined.

In the fourth ground of appeal, the Task Force argued that it was wrong for Chinyama to suggest that reimbursement of stolen monies is a defence to a charge of theft. The law we learnt tells us that Chinyama was wrong when he decided in that way. Claiming that after someone took government money, depositing private funds is a defence is simply wrong in law. Again, this is a good ground of appeal for an honest lawyer. It’s only dishonest lawyers like Mchenga who can’t see the merits of this ground. In ground five, the Task Force aptly argued that Chinyama was wrong in law when he decided that an unsworn statement can be relied upon where there is no evidence contradicting it when the law on unsworn statements is that such a statement is not evidence and cannot by itself prove any fact. This is such a legally significant ground of appeal that it is difficult to imagine that an honest lawyer, one occupying such a high office like the Director of Public Prosecutions can ignore.

Anyway, it is understandable that corruption and dishonesty make even wise men blind to the truth and prevent them from being honest in their dealings. Chiluba, knowing that he had a lot to explain, chose to give an unsworn statement which he used to make political pronouncements. He did not address the charges against him and yet Chinyama chose to accept his claims that he had private money in a government account. The law we know and the procedure we learnt from ZIALE tells us that Chinyama had no basis in law for accepting Chiluba’s evidence in the way he did. Even if he could have accepted that nonsense, Chiluba was required to explain the source of that money in terms of Section 188 of the Criminal Procedure Code. He did not. Chinyama should have convicted him and yet he acquitted him. And now we have Mchenga saying there are no good grounds of appeal.

What nonsense! What dishonesty is this? What lie is this? Ground six is so easy to understand that as we have said before, it is only dishonesty that keeps Mchenga from accepting it as a good ground. In this ground, the Task Force argued that Chinyama was wrong in law when he failed to find as a fact that private money can never be kept in a government account and where this purportedly happens, such money becomes government money anyway. This is what Section 7 of the finance, control and management Act provided at that time. Why did Chinyama have a problem with this clear provision of law? Why is he being joined by Mchenga in this blindness, or is it blindness? Even a person on the street will tell you that no honest person will go and keep their money in a government account. But when Chinyama and Mchenga accept such nonsense, then we know there is something seriously wrong somewhere.In ground seven, the Task Force argued that Chinyama is not entitled to interpret the Constitution. When he did that and found that Chiluba was not a public servant, he clearly exceeded his jurisdiction as a magistrate because this is a matter for the High Court and the Supreme Court to decide. Is it possible that Mchenga does not know this? The answer is very simple: he knows but he has chosen to become Chiluba’s defence counsel in aid of his political benefactors. These are damn good grounds of appeal which no honest Director of Public Prosecutions can dismiss the way Mchenga has done. Only a hired mercenary Director of Public Prosecutions can say the nonsense Mchenga is saying about these grounds of appeal. Again, we say Chiluba has not been cleared by the law, he has been acquitted and protected from going to jail by a collusion of Rupiah and the likes of Mchenga. Anyway, they can have their day but another time will come when they will have to account for all these criminal acts of theirs.