ACC DG in Contempt of Court: Who will watch the Watchman?

By Isaac Mwanza

Introduction

In the last few weeks, the Anti-Corruption Commission (ACC) has come under spotlight, with some sections of society calling for its disbandment or reconstitution after a witness is alleged to have said Health Minister Chitalu Chilufya didn’t commit an offence, according to a report in News Diggers. This is in a matter where Dr Chilufya is facing four counts of possessing property suspected to be proceeds of crime.

This discussion is NOT about the merits or demerits in the case of Dr. Chilufya, which is before the court. The discussion is entirely about the Anti-Corruption Commission’s inexplicable and unconscionable action in suspending its staff, one Chipampe Manda, from duty because of the testimony he gave in court which, according to the ACC Spokesperson “was contrary to the position of the Commission”. The article is about the position of the law with regard to protection of persons who give testimony before court.

In the case under discussion, ACC Investigation Officer Chipampe Manda, in his witness testimony, told the court that his conclusion after investigations was that the total value of assets the accused was alleged to have acquired through proceeds of crime was less than that of his known legitimate income during the indictment period.

Dr Chilufya is facing four counts of possessing property suspected to be proceeds of crime involving more than US$200,000 but the ACC investigator, according to the Mast Newspaper, exonerated Minister Chilufya by testifying against the commission’s position. Failing to deal with a backlash from the public, the Commission suspended the State witness over the testimony, an act which has been described by the Young African Leaders Initiative as contempt of court. Wow, so much to discuss!

Some facts the public must know about criminal prosecutions

Sometimes the general public needs to be helped in appreciating the courtroom Catch-22 situation which prosecutors and defence teams, who usually are legal practitioners confronting each other on opposite sides of a case, are faced with when prosecuting or defending criminal matters. As a general rule, among others, both sides and witnesses are required to give the court nothing but the whole truth, even if the truth meant disclosing information which may result in an unfavourable outcome against what you contend. This principle is summarised in Rule 36 of the Practice Rules for Legal Practitioners contained in Statutory Instrument No. 51 of 2002. The relevant provision reads:

“Rule 36 (b). [Conduct of work at court]
A practitioner when conducting proceedings at Court shall ensure that the court is informed of all relevant decisions and legislative provisions of which the practitioner is aware whether the effect is favourable or unfavourable towards the contention for which the practitioner argues and shall bring any procedural irregularity to the attention of the court during the hearing and not reserve such matter to be raised on appeal.”

Secondly, in almost all common law jurisdictions, it is recognised that public employees like the suspended ACC officer are protected from retaliation when they testify in court even against their own employers. The United States Supreme Court, in the 2014 case of Lane v. Franks, unanimously ruled that public employees who are called to testify are protected by the First Amendment just as other citizens are and should not have to choose between “the obligation to testify truthfully and the desire to avoid retaliation and keep their jobs.”

In Zambia, the (Acting) Director General who suspended the officer on the basis of the evidence the officer gave in court, under oath, is clearly in violation of this principle. Indeed, the Director General’s foremost duty is to protect witnesses, and not to intimidate them or, God forbid, to punish them for speaking what they believe is the truth before the court, as in the instant case (of Chipampe Manda).

If witnesses in future cases, are to feel secure when they come forward to help the Court and the Commission in dispensing justice, such action as was taken against Chipampe Manda are unconscionable and should not even be contemplated because they fly in the face of the law itself, which offers protection to anyone who assists the court, as witnesses of fact and truth, in dispensing justice.

To emphasise this point, I would draw the reader’s attention to our own laws, in particular, Section 69 of the Anti-Corruption Act No. 3 of 2012 which prohibits the action such as has been taken by the Director General against the Investigation Officer. Section 69 reads, in part:

“Section 69 [Protection of whistleblowers, victims, experts, etc.]
(8) (a) An action or proceeding, including disciplinary action, shall not be instituted or maintained against a witness, expert, victim or other person in respect of assistance given by the witness, expert, victim or other person to the Commission or the court

(9) A person who contravenes this section commits an offence and is liable, upon conviction, to a fine not exceeding two hundred thousand penalty units or to imprisonment for a period not exceeding two years, or to both.”

It is noted, here, that the suspended officer, Chipampe Manda, does not fall into the category of a whistleblower but a witness. The clear intention of this provision in our anticorruption law is to protect any person who gives testimony in court, from retaliation by those against whom that person gives his testimony or, as in this case, gives testimony in court which waters down the case for the prosecution. In short, no witness can be punished for telling the truth to the court during a proceeding.

No doubt, the action of the ACC Director General to suspend a witness and institute disciplinary action against that witness in respect of the assistance he gave to the Court during his testimony, amounts to an offence under the same law the Director General is sworn to enforce with impartiality. What is even more grave, is that the decision of the Director General to suspend the officer for giving evidence in court, does not only amount to a violation of the ACC Act alone but amounts to contempt of court under Section 116 of the Penal Code which reads:

“Section 116(1)(f) [Contempt of court]
Any person who attempts wrongfully to interfere with or influence a witness in a judicial proceeding either before or after he has given evidence, in connection with such evidence is guilty of a misdemeanour and is liable to imprisonment for six months or to a fine not exceeding seven hundred and fifty penalty units.”

In view of the above provisions of both the ACC Act itself and Penal Code which make the action taken by the ACC Director General an offence, the question is threefold:

(1) Was the ACC Director General acting in ignorance of provisions in the law? (2) does the Director General consider herself above the contempt of court law such that she can do anything even if the action undermines the integrity of the court, and (3) does the ACC operate on the basis that its employees who are called to testify should choose between “the obligation to testify truthfully or the desire to keep their jobs and avoid retaliation by saying what don’t believe to be truth”?

Is the ACC Director-General ignorant of the law against intimidation of witnesses?

In answering the first question, we think the ACC Director-General is not ignorant of the law but she wilfully disobeyed both the provisions of Sections 69(8) of the ACC Act and Section 116 of the Penal Code. She has wilfully committed contempt of court. Clearly, the Director General’s action was intended to ease the backlash the Commission was getting from the public who were baying for Dr. Chilufya’s blood on the basis of allegations, which have been disputed by the evidence of a suspended State witness.

We say the ACC Director-General is not ignorant of the law because no ordinary Zambian, no matter how educated they are, can ascend to the office of the Commission’s Director General unless they are qualified to be appointed as Judges of the High Court. Those who are potentially capable for appointment as Judges of the High Court would not that no one is allowed to take actions, which by law, undermines the court proceedings or are contemptuous to a competent court of law.

The current Acting Director General, Rosemary Nkonde-Khuzwayo, is a legal practitioner who is well versed in the law that protects witnesses in court proceedings, and also classifies any act to interfere with a witness, as contempt of court. In the instant case, a witness has actually been suspended or subjected to disciplinary action because of the testimony given in court as seen from here Memo dated 7th August, 2020, purportedly signed by her.

Much more importantly, the Acting Director General is aware of the implications of committing contempt of court as a legal practitioner in the manner she did. Sections 52 and 53 of the Legal Practitioners Act, Chapter 30 of the Laws of Zambia, states as follows:

“Section 52 (i) [Offences by practitioners]
No practitioner shall commit any contempt of court

Section 53. [Offences deemed professional misconduct]
Any practitioner who contravenes any of the provisions of section fifty-two shall be deemed to be guilty of professional misconduct, and the Court may, in its discretion, either admonish such practitioner, or suspend him from practice, or cause his name to be struck off the Roll pursuant to section twenty-eight”

It is quite clear from the discussion above, that the Acting Director General violated the Anti-Corruption Act which prohibits suspension and instituting of disciplinary action against witnesses, committed contempt of court punishable under the Penal Code and, further, also committed professional misconduct under the Legal Practitioners’ Act, whose result can lead to the Law Association of Zambia stripping her of her practising license. This, then brings us to reflections on the second question.

Is ACC Director-General above the law and courts?

The Director-General and all staff of the Commission enjoy immunity similar to that enjoyed by the President in exercise of their functions. In particular, Section 17(1) of the ACC Act reads:

Section 17. (1) [Immunity]
No proceedings, civil or criminal, shall lie against the Director-General, Deputy Director-General, Directors, Secretary, an officer or member of staff of the Commission for anything done in good faith in the exercise of the officer’s or member of staff’s functions under this Act.

The question arises, whether the Acting Director General considers herself to be above the law of contempt of court, professional misconduct and can wilfully breach Section 69(8) of the ACC Act, without repercussions. It makes for a quite strange conclusion; one is at pains to imagine that the Director General and or ACC officers can place themselves above the law and the courts.

However, the immunity enjoyed by the ACC Director General and staff, including Chipampe Manda, are only enjoyed for things done in good faith. Surely, the Director General’s action in suspending an officer for testimony given in court, while being aware of the law which protects the officer as a witness and also as a serving officer of the Anti-Corruption Commission, can only be read as an overt act of contempt of court or as an attempt to influence the course of the trial. It cannot be said to be an act done “in good faith”.

A desire for truth or job?

Finally, our last question to reflect on is whether the ACC operates on the basis that employees who are called to testify should choose between the obligation to testify truthfully and a desire to keep their jobs and avoid retaliation by giving evidence they don’t believe to be truth. In confirming the suspension of Chipampe Manda from duty, as reported by The Mast newspaper, the ACC public relations manager Mr. Timothy Moono is reported to have said:

“Yes, I can confirm that he’s been suspended on account that the evidence he gave in court was contrary to the commission’s position. He’s been suspended pending disciplinary hearing.”

In other words, what the ACC is saying is that the officer who testified as a witness should not have told the court about his findings but should have lied in order to advance the Commission’s prosecution of Dr. Chilufya regardless of, or by discarding the truth as concluded by the officer from an investigation? This is very worrying and extremely troubling: that ACC is directing its employees to only give witness testimonies that are not contrary to the employer’s position and not necessarily one that should advance the cause of justice. This, in some way, explains why the ACC is being seen as a vehicle being used to target politicians than deliver justice.

Conclusion

As seen from the above discussion, this author would suggest that the Acting Director General is in contempt of court for interfering with a witness in a judicial proceeding after he has given evidence. The Acting Director-General has also violated the provisions of the very Anti-Corruption Act, which forbids any action, including disciplinary action, against a witness like Chipampe Manda in respect of assistance he gave to the court.

Otherwise Chipampe Manda would have refused to give that help to the Court, resulting in a gross injustice being done to the accused because evidence which is favourable to him has been wilfully and intentionally withheld in order to make the accused person guilty in the eyes of the court and leading to a gross miscarriage of justice. It is the duty of our courts to hear all sides of the story and not what suits an employer and our courts have performed this duty so well and diligently.

In a criminal matter, withholding evidence in order to secure a conviction results in an innocent person being convicted and deprived of their liberty, irreparable damage to their name and reputation and mental anguish.

A further question arises, which is this: since we also know that the Director General enjoys immunity under the ACC Act, can she commit an act which amounts to contempt of court and rely on the immunity provision of the ACC Act to escape from being accountable to the Courts? If so, it would mean that now, Zambian employers would have two separate laws: one that allows the ACC personnel to commit contempt while enjoying immunity, and another group of employers where employers who commit similar acts in contempt of court, would face the wrath of the court because they do not enjoy immunity.

This would be unacceptable, as all are equal before the law. The suspension of the officer by the Director General, who is fully aware of the law, cannot be said to have been done in good faith. Surely, it is only logical that consequences must follow, the first of which, ought to be lifting the suspension of Chipampe Manda and the termination of any disciplinary process instituted against the innocent officer who was only carrying out his duty to the court: to the truth, the whole truth and nothing but the truth.