Dr. Chiluba being interviewed by reporters

By Elias Munshya wa Munshya

Myth 1: Judge Hamaundu’s Verdict Reversed the London Judgment

Reality: Judge Hamaundu’s verdict did not deal with the substantive issues of whether Chiluba was liable or not, or whether Judge Peter Smith was right or not. Instead, all Judge Hamaundu ruled on was on whether the Government could serve Chiluba with the London High Court papers so that he recompenses Government for what Judge Smith said was Chiluba’s liability. Judge Hamaundu ruled that the law Government relied on in its application to register the London judgment was insufficient. However, Hamaundu stated, that the Government could have relied on common law, but that was not his responsibility to tell them how they should have sought to register this judgment. The courts cannot make up for the legal recklessness of a party to a lawsuit.

Myth 2: After Judge Hamaundu’s ruling the London High Court ruling loses its effect

Reality: As a ruling which was obtained in the jurisdiction of England and Wales, the London High Court is still an effective ruling, unless it is appealed or overruled by the higher courts of England. The Government of Zambia can still serve it on Chiluba within England or European jurisdictions. The question, therefore, should be how much of the verdict has actually been effected within its own jurisdiction? The Zambian government cannot make up in Lusaka what it has failed to do in London.

Myth 3: The London High Court judgment was supposed to be recognized by Zambian courts based on international laws

Reality: There is nothing in international law that obligates a sovereign jurisdiction to recognise or effect judgments from another sovereign jurisdiction. International law is not a set of laws that nations mandatory abide by; rather it is a complex mix of conventions and agreements that nations agree to voluntarily. But the London High Court ruling is not part of international law unless there is an Agreement of Legal Reciprocity between the jurisdiction of England and Zambia. From the look of things, there is no legal framework for the reciprocation of judgments between England and Zambia. And that is the reason why after Shansonga ran away from Zambia’s legal jurisdiction to England, the Zambian police could not even attempt to ask England to extradite Shansonga! Similarly, in the case of contempt involving the Post Newspapers and Fred Membe, one of the co-accused Sam Mujuda could not be served with court papers from the Zambian magistrate courts because he was outside its jurisdiction in England. When Professor Muna Ndulo faced the same “Comedy of Errors” predicament, he was quick to answer that the Zambian magistrate court could not reach him in the comfort of the United States of America!

On the other hand there are some courts, on the principle of jurisdictional sovereignty and equality, which the international communities have set up such as the International Courts of Justice (ICJ) and the International Criminal Court (ICC). All these courts are specialised courts that deal with particular issues in matters of its members or those that have signed their constitutive acts. Similarly, the International Criminal Tribunal is a specialised international court that tries cases of crimes against humanity and genocide. It should be noted that the London High Court is not an international court in the fashion that the ICJ or the ICC is.

Myth 4: The London High Court is superior to the Lusaka High Court

Reality: This is unfortunately believed by some very well-meaning people. The Zambian court systems are not subservient to the English Courts. Both English and Zambian courts are sovereign courts in their own rights, and are effective within their own jurisdiction. The Zambian High Court is not obliged to follow or obey London and neither is London obliged to follow Lusaka. However, the legal judgments and opinions are of persuasive value to each jurisdiction.

Myth 5: Zambia should follow English Judgments because it is a Commonwealth country which follows Common Law

Reality: Yes, Zambia as well many other countries such as Canada, Australia, New Zealand, Nigeria and the United States of America, are known as Common Law jurisdictions. These common law systems differ from Civil Law systems such as France, Germany and Quebec or hybrid systems such as Scotland, Israel, and South Africa. Common Law systems are so called because their foundation of law is based upon the English Legal Systems, and as such much of their legal philosophy is based upon the legal foundations of England and Wales. Major cornerstones of the common law system are that it is mainly based on tradition, judicial precedence, and common law judgements. However, following a common law legal system is not synonymous with being subservient to English High Court or the Supreme Court of England and Wales. In fact, even if all these countries follow the Common Law system they differ with each other on several substantive laws. Being a common law country does not mean that the current English judgments set a precedence for all the other jurisdictions to follow. In other words, London High Court or Supreme Court of England and Wales (formerly the House of Lords) do not make laws or make judgements for everybody else apart from themselves and their jurisdictions.

Myth 6: Judge Peter Smith ruled that Chiluba was a thief

Reality: Ruling that someone is a thief, in its legal sense, is the responsibility of a criminal court. Of course, in informal ways people label any one they want as a thief, but that does not make a thief before the law. Judge Peter Smith only ruled on a civil case in which he held that Chiluba was liable to repay the Zambian government monies which the Judge felt Chiluba had either misappropriated or misused. There is a distinction between a civil case and a criminal case. A civil case is one in which one part sues the other party for compensation over civil liability. This may happen usually between private individuals or companies. As an example, a civil case is usually brought to have the respondent pay compensation to the plaintiff. On the other hand a criminal case is brought by the State or in the case of England by the Crown, against an accused or a defendant who is charged by the prosecution with a crime, such theft, murder, treason, and contempt of court. Theft is a crime and as such, only the prosecution (that is the Crown or the State) can bring a matter against the accused. In London, the Zambian government could not have instituted a criminal case against Chiluba unless the Crown so decided.

The Zambian government on the other hand, decided to charge Chiluba with a crime of theft in the Zambian court system. In a criminal case, it is the responsibility of the prosecution to prove to the court beyond all reasonable doubt that the accused committed the crime he is charged with. In a civil case it is incumbent upon the plaintiff to prove on a balance of probabilities that the respondent wronged him or broke the contract as the case may be. When Chiluba was charged with theft in the Zambian courts, it was incumbent upon the Zambian prosecution to prove beyond all reasonable doubt that Chiluba had stolen. For the accused to be guilty of theft the prosecution must prove several elements, first it must be proved that the accused appropriated property, second that property belonged to another, third that the accused had the intention to permanently deprive the other of the property, and fourthly that the accused was dishonest. The prosecution in the case of Chiluba needed to prove all these elements for Chiluba to be convicted. On the other hand if the accused convinces the court that just one of these elements is not true then he cannot be convicted of theft. That is exactly what Chiluba and his lawyers did in the criminal case here in Zambia. All they argued was that the money Chiluba was accused of appropriating was indeed his money which he put in the ZAMTROP account. To support this evidence they collected the Zambian Supreme Court’s judgment in the presidential petition between Mazoka and others v. Levy Mwanawasa. That evidence was enough to create doubt in the Court’s mind, as such Chiluba was acquitted.

Myth 7: The Zambian Courts had the Responsibility to Jail Chiluba

Reality: The Courts can only jail a person who is guilty of a criminal offence. As stated above, before the courts try a case, it is up to the State to make their minds on which offense they will charge the accused. In the case of Chiluba of all the charges they could have brought against him the State chose to bring the charge of theft. Now theft in complex matters such as Chiluba’s case was going to be difficult to prosecute because of the many elements the prosecution needed to prove. All Chiluba needed was clever lawyers that would discredit the prosecution’s case on just any of the many elements. The reason why the Mwanawasa government decided to go for the theft charge is still a mystery when they could have pursued other charges which had some chance of success. The charge with the most success could have been the charge of the abuse of the authority of office, under the Anti-Corruption Commission Act. In fact, most of Chiluba’s compatriots have been convicted under this Act, but in the Zambian prosecution’s sovereign decision they went for theft. And what Magistrate Chinyama ruled on, was great embarrassment to the Zambian clever prosecutors. The courts cannot make up for the inefficiency of the prosecution. If the State decides to charge Chiluba with theft and they fail to prove theft, the courts cannot make up for the State’s foolishness. Please leave Chiluba alone, he is not sorely responsible for this legal mess we all are!

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39 COMMENTS

  1. that s.tupid ruling was made in the coutry of our colonial masters UK. we surrendered our freedom to our colonizers. how do you allow a former head of state to be tried in foreign land like the international court of justice. number one war criminal is george w bush and tony blair. can UK allow blair to be tried in zambia or iraq, hell no. thanks judge hamaundu for preserving the national heritage

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  2. In Simple Languange, Chiluba is still a Thief as found by the London court.

    It was just a few Months ago George Kunda was saying those fermenting elections violence can be taken to the Hague, international Court of Justice to face trial. Today the same Insane MMD is saying foreign courts cant rule on US Zambians. Comedy.

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  3. Chiluba will forever be a thief, unless of course, he gives some of this monies back to the poor people of zambia. $50M is a lot of money!

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  4. I f Chiluba is a thief why have failed to prove it with your dull lawyers. State facts and prove them don’t just pander to membe who is the judge and jury of this Country. But for some of us we can see through a lot of things including Membe

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  5. I just saw in the Post Laz is pealing for Suprem court, Laz has also fallen finto membe’s demands net. Please learned people analise issues objectiviely, don’t act based on someones demands. i know the power of the pen and we are fearing to be destroyed but lets just state facts and counter argue. Membe is not the all wise one

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  6. Todos estamos un poco raro y la vida es un poco raro, y cuando encontramos a alguien cuya rareza es compatible con la nuestra, nos unimos con ellos y caer en rarezas mutua y lo llaman amor.
    (We are all a little weird and life’s a little weird, and when we find someone whose weirdness is compatible with ours, we join up with them and fall in mutual weirdness….)

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  7. Law is funny! Awe nshibile nsendele fye! Chiluba had clever lawyers. If anything our gutter press in Zambia has done more harm than good to Chiluba’s alleged offences with their little knowledge in law. And perhaps state house was ‘leaking’ information to them (press) to help them build a case against Chiluba. It must have embarrassed a lot when Judge Smith dismissed their ‘matrix of plunder’ as mere fiction and branded their star witness, one Hamunjele as dangerous. Now, after all is said and done, can the learned lawyers enlighten the general on the London judgement and the Lusaka High court’s decision not to Register it in Zambia in a professional manner devoid of emotions or hatred and politics. LAZ can sponsor a debate on TV, may be1

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  8. Chiluba is a theif. We nrrd to restart the prosecution next year and make it fast to save resources and jail him!

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  9. Chiluba is a theif. We need to restart the prosecution next year and make it fast to save resources and jail him! He must go in just like richard Sakala and most of his men went in!!

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  10. Chiluba is a theif. We need to restart the prosecution next year and make it fast to save resources and jail him! He must go in just like richard Sakala and most of his men went in! Kabwalala uyu!!

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  11. Thief or no thief is a stupid technicality. The court in London (with enough details and having given Chiluba a chance to explain himself) said Chiluba had taken money belonging to the people of Zambia. He should pay it back. Failure to register the judgment in Zambia just means that any property he has in Zambia cannot be taken but that in Europe (where most of it is) can be taken by the government if there is the will to do so, but clearly there isn’t. Meanwhile there are people in this country who are owed pensions by government and other monies who have died penniless waiting for payment while the little thief is now saying he has been vindicated.

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  12. Those who deprive the poor in order to gain wealth will perish…..the riches of the wicked withers

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  13. We have read the london judgement #9 Attorney general of zambia vs Meers Desai. Any man that launders money using lawyers from one source to another is a thief . Why do you think Chiluba can conduct or own bank accounts legitimately in the UK, why don’t you ask his fellow plunderers in the UK on how the UK is clamping down on them. Whats strange about this whoile chiluba issue is that I have heard NOT ONE LEGAL argument but just an endless ramble of noise. If chiluba is so innocent how come his co defendants admitted guilt, if he is so innocent why doesn’t he appeal to the Uk supreme court and get millions? If he is Innocent why doesn’t he rebuke each proven accusation with fact. Any time any man attacks you because you exposed him and doesn’t address the actual accusation then that…

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  14. Chiluba is a theif and hiding behind legal glitches and flawed laws will not help what he did is morally unaccepatble. You can’t have a head of state defrauding a poor people like Zambians. With crippling poverty in his background, it’s unimaginable that the head of state was busy entertaining ideas of shortchanging the citizenry.
    I ve seen both Judgments by Hamaundu and Chinyama’s….I ve serious problems with Chinyama’s. they are a couple of flaws that even a Layman could point out…..that judgment was dubious and should ve been appealed.

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  15. You Zambians talk too much and forget to follow detail! Go to school, become a lawyer and then you can stand in court and prove that Chiluba stole! Personally I have no proof to call Chiluba a thief! I learned about FTJ being a thief from the Post News paper! I have no other sources that I can point to for this. Guys legal matters are complicated! In America I have been called upon to be a juror on a simple fact that I was not expossed to a case at hand thru media or rumors! If the Judge finds out that U have prior knowledge of the case, you will not sit as a juror! Woke up Africans!!!!

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  16. LAZ is a leading double standards why among so many cases that have gone through the courts they have an interest in this one? There is that female minister who has the same case like Mpombo have they written to the DPP? Their fellow lawyers were over paid for doing nothing let them act on that. If they are saying that they will pay for the appeal then let them go ahead not tax payers money these lawyers in Zambia have made too much money out of this Chiluba nonsence. Let that case be move on!

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  17. I want someone on here to state the source of their knowledge on Chiluba being a thief and stole $46 M. Can someone stand up and affirm to the rumors that RB is stealing….come on lets talk sense not the Post Newspaper one man editorial news. If you can prove then stand up and meet FTJ in court so the guy can be sent to prison. You had George and Levy as lawyers and the two boys didnt know what to do with Chiluba. Dont use hatred for your enemies as a means for judicial investigations! Avoid embarrassing yourselves Africans.

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  18. I forgot to write this;

    Myth: Chiluba is innocent.

    Reality: An accused in only innocent when people appeal to the Supreme court and the supreme courts clears him or her. As fro Chiluba, as long some people like Rupiah MuBwezeni Kumunzi Banda and Shikapwasha stops the DPP to appeal against Lazo.

    Myth: Chiluba has won this case by his innocence.

    Reality: As long Chiluba continues campaigning the RB, RB will pay back by protecting Lazo.

    Myth: Chiluba Is a free Zambian.

    Reality: Chiluba will always be a thief in the minds of Zambians especially those who are suffering because of his BuLazo.

    Myth: Chiluba is Postor and cannot steal from Zambians.

    Reality: Chiluba is the worst thief who has ever lived in Zambia.

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  19. #20 A lot of people on this site are lawyers,Solicitors, Barristers paralegals etc in the same countries chiluba was found guilty in. A lot of people are speaking from an informed perspective on the matter not an emotional one. There is a damn good reason why people are angry and dismayed by this finding. Chiluba’s whole theieving scheme was laid to bare in the UK. From how he stole who he stole with, their names addresses, the dates , which zambians helped him and how the money moved. Now with all this evidence there hasn’t been not one rebuttal to the evidence only anger . If chiluba was innocent theres a platform for him to prove it but the way he is responding to the UK EVidence is PROOF HE IS GUILty

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  20. It amazes me how people who where DIRTY POOR before getting into positions of influence can suddenly claim to be so rich only a few years in those offices (positions). If a civil servant, on a civil servant’s salary, all of a sudden becomes a millionaire, are people really wrong to suspect theft or abuse?

    Chiluba was “as poor as a church mouse” before he became President, so for him to suddenly amass so much wealth without a lucrative career to point to, or generous donors to fatten his personal bank account to the tune of millions is simply too obvious. And this is why FTJ will have a tough time convincing most Zambians that he is not a thief!

    The courts and lawyers can keep dancing their ‘legal ballet’, but in the court of public opinion, Chiluba will always remain a thief!

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  21. #24 Well said could not say it any better myself. The damning evidence brought out in London has not been rebutted. #20 search the net , find the London Judgment, then come back here and tell us he is saint Chiluba.

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  22. I asked a fellow accusing me of being a chiluba hater, if he had heard of a law firm called Cave Malik or Meer Care and Desai. He answered in the Negative. I asked if he had read the london judgment , he said the document was to bulky. I realised most of the people who agree that Chiluba is being persecuted have drunk his Kool Aid and have refused to learn the facts.

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  23. :)
    ;)

    Whatever u say, Chiluba is still a LAZO, but big up to the judge for not registering that rubbish from London..

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  24. I always had the theory that Levy did not really want Chiluba to be jailed, all he wanted was people to see that he was not a puppet of Chiluba and gain support of certain people including donors. Can you believe that Levy actually wanted Chiluba behind bars? If he wanted to so do, he would have chraged him with something that would stick. That was the esence of his apology in his will.

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  25. Do you guys honestly think Levy & Kunda with huge leag experience started something they knew could finish.I don`t think so.Proscutors who are paid by the state will do as they are told.And in this case they were told how this case should i end.Sadly am one of them.What you foolish zambians need to learn is that as long as you remain docil in the name of peace, they can never be political will in this country.No politcal will to send thieves to jail,when all of us know that they have stolen.Chiluba is free becasue of Docil Zambians who choose to remain silent when the contry is going to the dogs.eventually we shall turn into dogs.just barking everyday like we are doing on this site.I am a proscutor paid by the state.only you can control the state but you choose not to.so leave chiluba alon

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  26. No.31 thank you, please leave Chiluba alone and it seems LAZ is now on the side of the post why have they failed to write the DPP about that female minister who has committed an offence like that of Hon. Mpombo? More over their fellow lawyers were paid big sums of dollars for doing nothing let them follow up on that one, do not take Zambians for fools – let the Chiluba case be leave him alone!

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  27. I have always said that law is manupilatable! Following this case and the happentance in the courts & its proceedings, you wonder what precedenc we have set forth for similar cases to emerge? Common law will always depend of judicial precedence no matter what and in cases where no consesus is reached-it is up to the prosecutors, based on analog,state of the case and anything surrounding the same, will make judgment, that will reflect a fair picture for both parties invloved. However, it remains a doubt that after all the resources used ,by the same persons executing this judgement-everything comes to null and no futher appeals are granted at all. There is just a lot of ruses from both FTJ & the state. We have just been lammed under our black urgly noses. PEACE

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  28. So, Mr. Legal, what is your response to Auditor General’s evidence that any monies deposit in a government account becomes miscellaneous income for government and anyone withdrawing from such funds for private use commits an offence. in addition Judge Hamaundu allowed direct registration of a foreign judgement (from South Africa), when there is no reciprocal agreement between the two countries; Re: Reefcor Ltd Vs Les Generals Des Carriers Et and Des Mines Exploitation Gecamines.
    Other parties to this matter have either refunded the money (the tailor), while some properties were seized on the strength of this same London judgement in Belgium. None of these has contested the judgement. So where does that leave Kafupi? it is clear that the state is an accomplice in the legal gymnastics…

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  29. pansaka tapabula cipuba….what u hv wriiten number 20 shows that u ar the one.hw can u say there is no proof that chiluba stole money?and hw can u advise those who ar commenting to go and study law for them to comment?if i may ask u every topic that u comment on hv u studed it?think not thot!!!

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  30. ONE SQUEALER @34, I feel your side of reasoning and would haste to say that we have just been lammed as a nation byu our own leaders. Amongest themselves and its a pity that even our churches have been messed up by this thievery or whater other learned bloggers may call it.Before our eyes, we have seen LAZ rant aimlessly when they should have been the ones to save us this s.h.i.t.We have seen one GK, even attempting to change law(abuse of office clause to suit himself & the many fellow culprits in govt. We have seen one judge chinyama’s reasoning get to his pants & he is nor more. They come and go. I for one thinks, we have let ourselves as zambian. We would rather sit in thde confines of our own created freedoms and conforts & choose to look away when the nation-so beautiful is being…

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  31. am concerned about the confusion some papers have caused and for those who are following the case closely too much contradictions some of you are saying judges and lawyers are being paid dollars that is to say they imperfect your own judges are but men corrupt fallible men that someone said they shoul go back to school if that is the case leave the matter to God the righteous judge of all men concerning ba chiluba if indeed he did what you people say he did the he will stand alone before his maker let us say that money was recovered will that improve your lives we now have the current president who took vows to be our leader let us see how he will perform i would love to say much but time can not allow lastly i would like to say that righteousness only will exalt the nations of this world.

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  32. SQUILER PLEASE HELP ME WITH THIS CASE! , You referred to in your posting to this ” Squealer says:
    August 21, 2010 at 11:24 amSo, Mr. Legal, what is your response to Auditor General’s evidence that any monies deposit in a government account becomes miscellaneous income for government and anyone withdrawing from such funds for private use commits an offence. in addition Judge Hamaundu allowed direct registration of a foreign judgement (from South Africa), when there is no reciprocal agreement between the two countries; Re: Reefcor Ltd Vs Les Generals Des Carriers Et and Des Mines Exploitation Gecamines.

    Where do you find the information with regard to the REEFCOR LTD V GECAMINES Case?, have you got a case number and court where this case was heard in South Africa?

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