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Saturday, October 31, 2020

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

Columns 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.

40 COMMENTS

  1. I enjoy the legal mind in you ISAAC and the objectivity that comes. You don’t move just after because of the public winds

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    • IN A COUNTRY WHERE EVERYONE IN LEADERSHIP POSITIONS IS BUSY STEALING FOR THE FUTURE!!!
      CRY MY BELOVED ZAMBIA….
      BA POMPWE MUSHIBILA NSALA !!!!

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  2. Only those who read and comprehend can understand what is being said here. I fully agree now. ACC is in contempt of court.

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  3. The witness refused to be used by the upnd and he spoke the truth. Because it favours the pf then that ACC becomes useless? It’s this type of political thinking which creates an impediment to progress. The opposition decided that chilufya was guilty even before the trial for political reasons. They forgot that one has to be proven guilty. Things didn’t go their way now they are throwing the toys out of their prams like little babies. Grow up you baby hyenas

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  4. Something wrong with the manner ACC is behaving. Organisation needs to be reorganized. First step is to have acting persons replaced, in my view.

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  5. What evidence was used when ACC decided to issue an arrest for the accused Minister? Was this based on the testimony given in court by the suspended ACC officer? There is much more to this than meets the eye!

  6. In fact the issue isn’t about the value of total assets of Dr Chilufya exceeding the value of the assets he’s alleged to hv acquired in a suspicious manner so as to attract the ACC’s investigation. It’s a matter of cashflow. I can own an asset but if it is not generating cash, it follows I cannot hv cash to pay for something in future. The ACC needs to establish that there’s no evidence of the assets Dr Chilufya owned generating enough cash to acquire more assets. That’s the prosecution’s job and not Dr Chilufya and his defence. Knowledge of cashflow accounting is at play here.

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  7. @Nemwine, you discussing the merits and demerits but the person has avoided to discuss that but focused on the illegal suspension of the officer for testifying differently from what the Commission believes.

  8. The Observer, I know wht it takes to make your case in financial crime prosecution. It’s different from prosecuting a case of burglary or murder.

  9. Ngoma Yamaanu, good point. But it’s also about the income and non-cash assets Dr Chilufya earned and owned, whn he acquired them, how he acquired them and how he paid for them, the records that were generated to account for this income and asset acquisition and the cashflow those assets hv generated for him. The issue of living expenses to provide for his family also comes in. Surely not all income from parliament and ministerial office was pumped into asset acquisition. An investigator who’s up to the task would examine such things. I can go and buy an expensive car tomorrow but wht will be left to buy food, pay school fees etc?

  10. I still dont think ACC would have issued an arrest for the Minister based on what the suspended ACC officer said in court. This also explains why the judge in court wondered why the Minister was in court if ACC had no evidence of wrong doing. So it seems what this ACC officer said in court surprised even the ACC too… what happened here is a circus.

  11. The other point that needs refuting is the argument that if you own assets that exceed the value of the asset u’re alleged to hv stolen then it’s not possible that u stole. I say no, no no, as Amy Winehouse once sung. People with expensive clothing hv been known to steal from supermarkets. So if a security guard at a supermarket sees someone wearing expensive shoes shoplifting a loaf of bread they must leave them alone because their shoes alone are worth more than the bread?

  12. kaizar zulu your mouth is full of upnd. just join them so that you can fill good.you can never write an article without mentioning the word UPND,oh soon you will defect to UPND.

  13. Well said and written Issac. I had hoped tho u would discuss the merits in that testimony by the witness. Hope u do that in next move

  14. YALI, is it possible for you to register an agricultural organization and start growing food in view that our leaders have failed. I am just trying to see where you can add value than always being on the side of a failed government in governance and economic affairs. Ever since your cases of failing to account for donor funding…..

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  15. 1. ACC is a government institution and the government is PF 2. This analysis should go to ACC and Government other than parading it here 3. ACC is being used by PF politicians to against each other, in other words, these are just PF internal wrangles and power struggles but unfortunately using ACC 4. UPND or indeed any other opposition party has nothing to do with this case . I fail to understand why some LUNA..TICKS… are bringing in UPND (@AUGUSTINE and that former LAB TECH KAIZER)……… To HUNGRY ISAAC MWANZA , dont bore us with academics here. This case is in court and must be left to ACC and the COURTS to decide. PERIOD..What you are doing is CONTEMPT (But since you are are PAID PF cadre , you will get away with it – But TIME will come for you to ACCOUNT)

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  16. That ACC chap was giving testimony as a Prosecution officer from the ACC but because of the corrupt money he received from Chitalu Chilufya he changed his statements to favour Chitalu. It is so annoying in Zambia that the corrupt elements are praised. ACC is on film ground to suspend its officer and further to investigate him for corruption.

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    • But you know most of these NGOs can not even pass the basic and barest minimum integrity test. But things are hard, they have to eat. You will see most lazy ones like this NGO just praising government in order to eat.

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  17. The suspended officer was in the dock representing ACC not himself or his convictions. If he was not comfortable with the ACC’s official position, he should have excused himself from the case and NOT do dont Kubeba on his institution. Please Zambians DONT celebrate corruption and impunity. Read the violent post independence history of nigeria, ghana, liberia, sierra leonne. Examine the root cause and relate to what is obtaining in Zambia.

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  18. We are not short of drama under the PF regime in Zambia. Here is an ACC prosecution officer prosecuting himself and the ACC in the process!

  19. Its just all rubbish by Isaac why is he even doing such a long write up ?? How can a prosecutor go and present to court contrary to what he submitted to successfully prosecute a case? it is assumed at the time that the PROSECUTING TEAM takes the matter to court they are convinced among themselves that they have sufficient evidence to prosecute the case. A public prosecutor is thus not like an ordinary witness. Why isn’t Isaac looking at the matter as the prosecutor having been possibly bribed by the corrupt gang? And it is also very suspicious that YALI always issue statements that strengthen any argument ECL seems to bring to public discourse. If the Courts rule against ACC it will set a very bad precedence and will now encourage the corrupt who amass immense wealth to tempt prosecutors…

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  20. Ngoma and the rest of your fellow cohorts, what has this got to do with pf. The ACC is an independent body with it’s now mandate. If ACC has failed you as a citizen why should pf get the blame? You are too political you chaps and lack any objectivity. Go and question ACC and put them to task for letting you down.

  21. Ngoma and the rest of your fellow cohorts, what has this got to do with pf. The ACC is an independent body with it’s now mandate. If ACC has failed you as a citizen why should pf get the blame? You are too political you chaps and lack any objectivity. Go and question ACC and put them to task for letting you down. Kaizar who is currently planning his weekend. What is everyone doing?

  22. @FORMER_LAB_TECH u right. These are internal pf battles, moment they stop using these Institutions to fight each other is day the party will not have trouble with acc. But its good also for the opposition when they are fighting each other, painting a bigger picture of the rot.

  23. Kaizar, you are not even able to observe that not all comments are saying ACC has failed in this case. You cant see that we are arguing against Isaac’s persecution of the ACC for suspending an ACC prosecution officer who didnot present the evidence ACC had for arresting the Minister of Health. It is PF leadership who dont allow the ACC and similar independent governance institution to succeed. Time will come when some PF leaders will be out to task and questioned for letting down citizens and mutilating independent governance institutions.

  24. @Kaizer, the ACC as an institution has no problem whatsoever and must be encouraged to fight corruption and so professionally. What the problem is is that the institution has been hijacked by staff who drive some political agenda. Something must be done to clean it up.

  25. Kwena wabralila mambala.
    ACC chaps need more education.
    What s+up!d abuse of office.
    A clear orchestrated witch hunt this sounds.
    Refresher Courses for ACC please.

  26. No, the ACC is correct if the charges are ‘possesion of stolen property.’

    The testimony given seems designed to throw the case by contradicting the foundations of the charges. That is to say, the witness gave evidence to support the person being prosecuted by ACC. You can’t charge someone then give support statements to help his case. Which side was witness on?

    We all need to stop making wild statements on this matter. Being in possession of stolen property is a serious crime for which both the Thief and consequent Purchaser (whether purchased through ignorance) IS GUILTY, even if it’s proven the purchaser has enough money/earnings to purchase that stolen property. You need to check proper ownership before you buy from people!

  27. Imwe ba kambwanga, who intimidate or bought who? Thats why the minister should have been suspended. Where did you see an officer being investigated remain in office? Do you know the power the minister wields in contrast to the DG ACC? Whom will the boy be scared of the most?

  28. Issac, you one of the few brains that really devot yourself to understanding issues in question. As a legal mind and your senior, am proud of you. I may not agree with you that ACC DG cannot face contempt due to immunity clauss, she can and she is in contempt of court. However the politics in Zambia won’t allow her to face contempt. She is not above the law tho

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  29. The truth is that no contempt proceedings can be brought against ACC, that is the position of the law. This article leaves out so many points in terms of interpretation of the law, Eg 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.” it says any person who attempts wrongfully to interfere with the witness. ACC did not interfere wrongfully with Manda, they have all the evidence with them and based on that, Manda was suspended.

  30. What a well articulated article devoid of favour or bias. Edgar Lungu was right, this anti-corruption circus is a witch hunt against political opponents. Reform is inevitable. Start with ZP.

  31. Beautiful article. You should have asked Diggers to publish it but they wouldn’t because they don’t like to hear what you say these days until you begin to speak against Govt.

  32. Apparently, the ACC officer who was suspended can also claim the same immunity conferred on the DG to have his suspension overturned.

  33. I trust that the ACC have the evidence which their so called witness Manda didnot use in court. This Manda was not wrongly suspended by ACC. If Manda feels he was wrongly suspended, let him take the ACC to court. It will be interesting to hear why Manda presented different evidence from the evidence ACC had for this court case. This may be the opportunity to give the public whose resources were stolen, the correct evidence ACC had for arresting the Minister.

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