By Charles Ngoma
There is a story Bible about a man called Zacheus. Zacheus was an employee of the government of the day and worked at the colonial Tax office. The local people deemed anyone who worked for the government a traitor. Not only that, Zacheus was also corrupt and abused his office by getting more money from the citizenry than they were liable. As a result of his illegal activities he became very wealthy. One day, he heard the rumble of a crowd outside his office. He ran out to see what was going on but he couldn’t make out because the crowd was too big. He decided to take advantage of the height of a sycamore tree. He climbed it and saw the reason for the crowd. A popular Sage was passing through the city! Suddenly the Sage stopped under the sycamore tree and looking up, said, ‘Zacheus, come down. I am going to have dinner at your house today.’ Zacheus must have been used to hosting dignitaries, but this was going to be different. Excitedly, he got down and loved it to lead such a man to his house for dinner. While there, something changed in Zacheus and he decided to give away half of his wealth to the poor, and repay whomsoever he had defrauded four times over!
This essentially is the Law of Restitution. Imagine if Zacheus had simply been arrested and thrown into jail. It could have satisfied many who were injured by his corruption, but it would not have changed their financial status.
What I would like to advocate through this short article, is simply this. Unless a corrupt act or abuse of office directly harms a person’s life, it should be tried under civil jurisprudence rather than criminal. Why do I say so?
For primarily three reasons:
- As long as cases are brought under criminal law, the burden of proof is on the State and to convict a person there must be enough evidence beyond reasonable doubt. This tends to be a very expensive and convoluted process. At the end of it all, the State may have got its man, but the people that suffered as a result of the corrupt practice are no better off. I am aware that there is the Forfeiture and seizure of proceeds of crime legal instrument by which the State can recover the stolen assets. But, the State cannot get to this point before conviction in the first. There are people who are advocating the lowering of the burden of proof in cases of corruption. I don’t think that is a good idea. We would end up with the kind of conundrum we had with un-bailable crime of motor vehicle theft.
- Under civil litigation, one can be convicted purely on the balance of probabilities. If that is the case, they may not go to jail, but a fine may be imposed and all the property that they corruptly acquired may be retrieved.
- Every person in public office essentially enters a contract with the public to which they owe service. When people abuse their office and are corrupt, they breach that contract. Therefore it can be shown easily that the officer, including the Head of State is under legal duty to act in a particular manner. If he failed to act in an expected manner and as a result of his action or inaction the public suffered loss, then he should be liable under Tort law.
In the case of the former President Dr FTJ Chiluba, the London High Court convicted him and others over the $48 million that was mis-appropriated. The Zambian Magistrate court could not convict him over theft of $500,000! There are many theories about Magistrate Judge Chinyama’s judgement. I am yet to see any clear reasoning against that judgement that the then DPP refused to appeal. So, we can all just speculate about who did what. The point is that a civil court easily convicted over a vast amount of money, but a criminal court didn’t over far much less. Sit back for a moment and imagine how much better off every Zambian would have been if it had all ended with the London High Court! I beg to move.
Disclaimer: I am not a Lawyer
That is why the London judgement could not registered in Zambia because our judicial system is different. Why take a Zambian citizen to British courts, just because of low level of burden of proof? If cant produce proof you are essentially convicting innocent poeple and the London judgement has much questions in it. Where did Chiluba get 48 million dollars from when the country’s annual GDP at the time was only 3 million dollars. They said most of Chiluba’s asserts where in Eroupe, the London judgement can enforced through out Europe, go and get the assets….zero upto now.and even if you enforce it in Zambia, Chiluba’s assets won’t reach that much. How does someone still that which never existed?
A GDP of $3m ? Man, are you a comedian or just a dumb a$$?
Your suggestion for civil as opposed to criminal proceedings in corruption will not achieve the deterrent and punitive effect of leaders helping themselves to public resources.
We are generally afraid of going to prison than being slapped with a fine no matter how big that fine
In fact we can pursue both criminal and civil actions against leaders who abuse their authority, immunity and are corrupt.
Its better to spend $10million in order to recover a stolen $2million because we will strengthen our democratic institutions and will instil a sense of deterrence and accountability.
A crime and conviction knows no boarder. A thief in Zambia will not clease themselves as innocent if they steal and got convicted in another country.
zambians themselves need to fight corruption. wherever you are ask yourself how much you have contributed to corruption. you may say the people in higher post are the ones involved in it but every citizen could be in it. whatever you do for these people gives them the courage to continue. recently a friend of mine came home to collect her dues for voluntary placement she asked for many years, the people in the offices were not even ashamed to ask for money before they could release the cheque. even going to the point of saying ‘everyone drops some money, if you don’t the cheque will not be issued” this is not acceptable.
This article sounds more from kangaloo camp. armstadam
@Hey,u are right . Almost everyone in Zambia is corrupt especially civil servents. Zambians change yo altitude please. U can build mansions and buy any dream car in the world thru corruption but one day the very corruption will make u make lose all.
Zambia is a poor country. To spend $10 million to recover a few cents and send a person to prison where he is again looked after by the State doesn’t help anyone but a few haters. Prison has not deterred corruption at all. Zambians are more corrupt today than ever before. Kapoko is now a free man enjoying the loot he got from the Ministry of Health. The case collapsed, but he could easily have been convicted under civil law. Dr Bulaya did forfeit his assets when he was convicted, and that was well argued by Mr Nchito, but it was after the criminal conviction. I think, we can make it easier to recover what is stolen by a simpler court process. The shame of being known as a thief thereafter, will be enough prison.
Great arguments Dr. Ngoma, but here one is dealing with deep hatred. RB has to go in olo chinkhale bwanji, that is the issue. Nothing else counts baba.