JUDICIARY ON THE CROSSROADS

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By Amb. Emmanuel Mwamba 

Hon.Dr. Mumba Malila is Zambia’s nineth Chief Justice since Independence.

In his inaugural address to adjudicators and support staff at his investiture ceremony held on 22nd December 2022, he won admiration when he spoke candidly about the challenges and difficulties of the current judiciary.

He recognised that the Judiciary has not performed as well it should be and that it stood in susbtantial discredit.

He also recognised that the Judiciary now suffered shrinking faith from citizens and has been under massive and unremitting criticism from members of the public and stakeholders.

He stated that the Zambian Judiciary was deemed failing in the pursuit of Truth, Justice, Fair Play, and Equality before the law by those that seek such sanctuary in it and recognising its sacred place in our Democracy.

WHY IS JUDICIARY IN DISREPUTE?

Dr. Malila identified factors that has placed the Judiciary in disrepute. He stated that the Judiciary suffers reputation damage and accusations that it is subject to manipulation and compromise, that some judgements are motivated by considerations that are inconsistent with the Judicial Oarth of Office.

Other criticisms included lack of pace that has substantially slowed down the wheels of Justice, long delays in delivering Judgements, and many adverse factors that have dampened public confidence in the Judiciary.

He therefore promised to carry out his responsibility without fear, favour or bias.

He said all pending disciplinary cases would be resolved.

He said that this meant that the application of laws of the land must occur, in the solemn words of the judicial oath, without fear or favour, affection or ill will and therefore, without regard to the political, religious or ethnic affiliation of any citizen of the land.

He said none of these factors should be the inspiration for any judicial decision.

He said that in the same vein, those who are perpetually underperforming or otherwise failing to deliver, or to discharge their responsibility competently, diligently and with integrity could expect to answer questions before the Judicial Complaints Commission!

He pledged to redeem the image of the Judiciary by curbing inefficiency, unprofessionalism, indiscipline even as occurring under the guise of judicial independence.

THE JUDICIARY TODAY

Sadly the state of the Judiciary continued to as he earlier feared.

No substantial changes have occurred since he took over to take it to a place of reform, efficiency or integrity.

The creation of the Economic and Financial Court and its replication at subordinate court level is a tool to achieve, not judicial or justice goals, but political ends driven by State House.

Besides, it’s President Hakainde Hichilema, in his first official address to Parliament in September 2021 that announced the creation of a fast track court to prosecute financial crimes, corruption cases and to recover stolen public assets.

So when the new Chief Justice, signed a statutory instrument and announced in January 2022 that an economic and financial crimes court as a division of the High Court, and at the level of the subordinate court, will be created, pursuant to Article 133 (3) of the Constitution and Section 3(3) of the High Court Act, for purposes of handling appeals from its subordinate court sibling, it was in full fulfillment of Hichilema’s earlier announcements and wishes and not an act of the Chief Justice.

The wanton transfers of judges and magistrates, especially as those that have occurred in Lusaka is testament that the judiciary is being shaped for political and other ends other than Justice.

RECENT CASES

1. KABUSHI AND KWACHA CONSTITUENCY

It was sad to witness the theft and day-light robbery of these two seats from the Opposition and we saw the deployment of lawfare as perpetrated by the Executive with the active participation of the Judiciary, the Police and the Electoral Commission of Zambia.

There was total disregard of court orders, conflicting judgements from the same court and deliberate prevarication especially by the Appeals Court when it was evident it has never had a role or jurisdiction in electoral disputes.

KATELE KALUMBA CASE

This is a case of utter injustice committed with the active participation of the Chief Justice.

The Appeals case of 2013 of Stella Mumba Chibanda, Dr. Katele Kalumba, Faustin Kabwe and Aaron Chungu Vs The People needed Hon. Malila and Justice Chinyama to have recused themselves.

The four were charged with offences related to the corrupt practices under the Anti-Corruption Act no. 46 of 1996.

In this case, former Minister of Finance, Katele Kalumba was accused of receiving a bribe of £4,000.00 to expedite payments to two USA based companies that had security contracts with the Zambia Intelligence Security Services (ZISS).

Stella Chibanda as Director External Resource Mobilizationand later Permanent Secretary received $28,000 and a farm as gratification to process these payments through Bank of Zambia and ZNCB -London Branch to the two USA companies.

Faustin Kabwe and Aaron Chungu as Executive Director and Chief Executive Officer of non-banking financial institution, Access Financial Services held local accounts for the Zambia Security Intelligence Services that received some money from the ZAMTROP Account from London.

The companies; Systems Innovations and Wilbain Incorporation received about $25million under an MOU and security contracts for the supply and installation of communication, security systems and equipment.

The two companies also installed steel fencing at State House, Vice President, Ministry of Defence, Cabinet Office, Ministry of Finance, and International Airport, ZSIS and the Supreme Court and High Court grounds.

The allegations were that the quartet participated in corrupt practices which resulted in overpayment.

The DPP, Lillian Shawa-Siyuni didn’t support this prosecution that was done by her predecessor Mutembo Nchito SC when he was prosecutor and later as DPP.

She said there was no evidence of any overpayment for the works done and systems installed and this was confirmed by almost all witnesses.

She also submitted that the payments and accounts were under the jurisdiction of the Director General of the Intelligence, Xavier Chungu whose duty it was to pay the money as per prescribed contracts.

She also submitted that by virtue of Katele Kalumba and Stella Chibanda submitting to court that they were also secret agents of the Intelligence could therefore be remunerated by the agency and the payment in cash or kind was normal as agents were not on payroll. 

She also stated that this did not constitute bribery or an act of corruption as public officers could receive payments from other ministries or agencies for the work they render as experts in whatever field.

She stated that the earlier convictions were flawed as elements of the offences were not proven beyond reasonable doubt.

The court chose to disregard the DPP’s submissions, this is owing, not to flawed arguments, but the bias I have alluded to.

When these matters started in 2003 driven by President Levy Mwanawasa in a controversial and highly politically charged environment against his predecessor, Dr. Frederick Chiluba, he established a Taskforce on Corruption, fired the Director of Public Prosecutions, and hired a private prosecutor and caused transfers and selection of magistrates to handle the cases.

Hon. Jones Chinyama was a magistrate transfered from Mansa to Lusaka Chikwa Courts while Edward Musona, who convicted the quartet came from Kitwe.  

At the time, Hon. George Kunda SC was both Minister of Justice and Attorney General. This Mwanawasa later changed in 2006 when Hon. Dr. Mumba Malila was appointed Attorney General (2006-2009) and participated in rendering opinion in the prosecution of these matters. 

He also continued a matter in which the Attorney General sued Dr. Chiluba and six others in the London High Court to recover money processed through the intelligence account (ZAMPTROP) held at the Zambia National Commercial Bank in London in the case; Zambia Vs Meer Care and Others were Dr. Chiluba, two London law firms, Faustin Kabwe and Aaron Chungu were sued.

(Update: On 31st July 2008, the Court of Appeal overturned the High Court judgment against Iqbal Meer and Naynesh Desai. It found that Iqbal Meer did not dishonestly assist or conspire to defraud or launder money from the Zambian government. Naydesh Desai, who had been held vicariously liable by the High Court, was also cleared by the Court of Appeal).

In his own official CV, the Chief Justice, Dr. Mumba Malila cites his experience during this period in this manner.

“Was in the frontline in the fight against corruption waged by President Mwanawasa’s administration, led a team of local and foreign lawyers in legal proceedings against high profile individuals, concluded high level agreements on behalf of the Government to the recovery of looted assets.”

As Senior Resident Magistrate, Hon. Jones Chinyama handled a similar cases where the former President Frederick Chiluba, Faustin Kabwe and Aaron Chungu were the co-accused. 

Hon. Chinyama, as Magistrate, found the two business executives, guilty of theft and possession of public funds and were each imprisoned for three years while Dr. Chiluba was acquitted.

Clearly the two judges should not have sat to hear and determine this case as they were largely prejudiced and biased because of their previous roles in these matters.

THE JUDICIAL COMPLAINTS COMMISSION

Headed by Hon. Vincent Blackskin Malambo SC the JCC as seen from the recent cases they have handled, has become a tool that threatens the independence of the Judiciary and security tenure of judicial officers.

JUCIAL CONFERENCE IN LIVINGSTONE

A retreat for judges was held at Avani Hotel in Livingstone.

The Guest of Honour was President Hakainde Hichilema. We think this decision to invite the President was poor.

The President meets the Chief Justice during official opening Parliament and this is acceptable.

We recently saw Judges at State House at a celebratory luncheon on the abolition of the death penalty.

It is imperative that these interactions are stopped and a distance is created so that the doctrine of the Separation of Powers is seen and also practiced.

CONCLUSION

The Chief Justice must live up to the words spoken during his inaugural address to the adjudicators and support staff.  He must ensure that the Judiciary is distant from the Executive and engages in activities that restore confidence from the citizens.

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