Tuesday, May 28, 2024

About Weaponization of The Judiciary: A Case of An Unusual Verdict by an Unusual Court

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By Sean Tembo – PeP President

1. I have keenly followed the criminal case in which former Zampost Postmaster General, Mr McPherson Chanda was charged with theft of about K335 million together with two others. My interest, in this case, was largely from a professional standpoint as an Auditor, as l sought to understand the nature and extent of breakdown in internal controls that would allow a management team of an organization to siphon out so much money without being detected on a timely basis. Where was the Internal Audit department? Who slept on the job and why?

2. Surprisingly for this case, the testimony of prosecution witnesses was not significantly at variance with that of defense witnesses. It was common cause that Zampost signed an agency agreement with the Ministry of Community Development to use its retail network of post offices across the country for purposes of distributing social cash transfer (SCT). It was also common cause that the Ministry would often send money to Zampost and delay for months in submitting a list of SCT beneficiaries to whom Zampost would be required to pay the money, meaning that at any given time, Zampost would have money sitting idle in its current account at Absa.

3. An Absa employee testified that at some point, the Zampost management team decided to open a fixed deposit account for the organization, and that they would regularly transfer SCT funds from the current account to the fixed deposit account for specific periods of time, and that once interest was earned on the fixed deposit account, both the principal and the interest was transferred back to the current account. When the Ministry submits the list of SCT beneficiaries for the respective month, Zampost would then pay the beneficiaries and remain with its commission as per the contract with the Ministry, as well as the interest earned on the funds from the temporary transfer to the fixed deposit account.

4. The prosecution witnesses further testified that the three accused persons, who were senior members of the Zampost management team, did not in any way benefit from the funds, whether the principal or commissions or interest earned on the principal. Any residue funds that remained were for the benefit of Zampost. The only significant point of disagreement between the prosecution and the defence was based on the testimony of an official from the Ministry of Finance, who testified that Government financial regulations require that before any bank account in which government funds are going to be deposited is opened, the authority must be obtained from the controlling officer at Ministry of Finance. The Ministry official further testified that the Zampost management team did not obtain that authority before they opened the fixed deposit account at Absa, to which SCT funds were temporarily deposited to earn interest before being remitted to respective beneficiaries.

5. The defence countered that the said Government financial regulations did not apply to Zampost, because Zampost is an independent legal entity with independent financial regulations which are approved from time to time by its Board of Directors. The defense further submitted that the opening of the fixed deposit account at Absa was done in compliance with Zampost financial regulations. Further it was submitted that the agreement between Zampost and the Ministry did not prohibit Zampost from putting the funds in an interest-bearing account before subsequent remittance to SCT beneficiaries.

6. The defense further submitted that there was no inordinate delay occasioned on the remittance of funds to SCT beneficiaries because of putting the funds in a fixed deposit account, and that Zampost could instruct the bank to transfer the funds back to the current account at any time before the maturity of the deposit if Zampost received the beneficiary list from the Ministry and needed to remit the funds to respective SCT beneficiaries. In other words, the only delay which SCT beneficiaries suffered was that which was occasioned by the Ministry due to its failure to submit the monthly SCT beneficiaries list on a timely basis. The defence also submitted that the practice of temporarily holding SCT funds in a fixed deposit account continued at Zampost even after the accused persons were removed from the organization, but non of the current management team members of Zampost are being charged with any crime.

7. My professoinal view on the above submissions by both the prosecution and the defense is that l largely agree with the position taken by the defense. Firstly, each parastatal as a separate legal entity has its own financial regulations which will often be different from those of Government. Additionally, it is considered financial management best practice not to keep large sums of money in a current account when you can put the funds in a call account or fixed deposit account and earn some interest.

8. Therefore, l personally do not see anything wrong which Mr McPherson Chanda and his two colleagues did in the execution of their duties as Postmaster General, Head of Finance and Head of Operations. Especially given the fact that no single Ngwee of Zampost money is said to have ended up in the individual pockets of any of the three accused persons. If anything, the team demonstrated sound financial management practices by avoiding wastefulness, which you will not find in most organizations. If l had a big company, l would not hesitate to employ these three individuals. I must emphasize here that l am giving this opinion solely based on what was presented in open court in this matter. Also, l am speaking here not in my capacity as Sean Tembo the PeP President, no. I am speaking as Sean Tembo MBA, BAcc, FCCA, FCPA, FZICA a Managing Partner of an audit firm and someone who has undertaken more than 2,000 audits of different types of organizations over a period of more than 20 years in three different countries. A forensic auditor who has testified as an expert witness in several fraud cases.

9. I was therefore shocked when l learnt that Mr McPherson Chanda and his two colleagues had been convicted by President Hichilema’s newly created Financial Crimes Magistrate’s Court. I also found the sentence particularly strange; i.e two years simple imprisonment or in the alternative, restitution amounting to K350 million. In other words the court is saying that if the convicts pay back K350 million, they will not need to serve any prison term. This is a strangely lenient sentence for people who are genuinely found guilty of theft of as large an amount as K335 million.

10. I am not a psychologist, but the only possible explanation l can offer regarding this strange conviction and equally strange sentence is that President Hakainde Hichilema’s newly created court knew that the accused persons were innocent but had some unknown external pressure to convict. But again despite the undue conviction, the court was overwhelmed with the guilty of convicting evidently innocent people, and in order to compensate for that inner guilty, decided to give a strange sentence which stuck out like a sore thumb. This begs the question; has President Hakainde Hichilema weaponized the judiciary through his creation of a personal to holder court? We hope not. We do hope however that these wrongly convicted individuals will appeal their sentences, and should they do so, l will be willing to testify as an expert witness for Mr McPherson Chanda and his two colleagues. Free of charge. An injustice to one is an injustice to all.

36 COMMENTS

  1. I agree with brother Sean Tembo. In the first place this case should not have reached court. The supersivor of Mr. Chanda should have just asked him and his team to stop the practice if it was against regulations. Sham court.

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    • Deja Vu – You have a very cavalier attitude towards serious matters of this nature…its evident with your postings here on LT. You have no respect for the law it had to take the courts to force you to pay the third party when you were involved in a hit and run. I wouldn’t trust you managing a primary school tuckshop that sells sweets and scones.

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    • Iwe kolwe don’t think you know better than others. In my long experience I have discovered that that those who often accuse people of evil are actually more evil than those that they accuse.

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  2. I agree with you. Even Emerine Kabanshi is innocent. Zampost is 100% owned by government so there was nothing irregular in awarding the Company the contract to disburse money on behalf of the Ministry. It’s politics at play

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    • I don’t think the issue was awarding Zampost the contract, it was that Zampost made money from putting the money in a different account, which money was still left in the company.
      Not sure how the 13 counts of theft were sustained.

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    • 3.1, Emerine is Court for having awarded the contract to Zampost on a charge of abuse of authority just because she differed with ECL

    • Just had a look at Kabanshi’s case, her charges were willful failure to comply with law. Particularly, she extended coverage of social cash transfer to 3 provinces and two districts.
      Funny if you ask me, having more people get access became a crime, LOL.
      And I think she was fired because Lungu needed to put on an act for the donors.

  3. @2, this was my earlier comment on the issue, there was no theft there. But of course Toni (AKA Tarino, AKA Spaka will come here and disagree with no actual facts).
    Let Sean Tembo, this was a surprisingly ruling from the magistrate.

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  4. When rich thieves are arrested and jailed they come in droves to write articles about injustice …when a surviving villager steals a neighbours chicken to feed his family and is arrested jailed for 6 years none of them chaps shows up.

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  5. This is the Sean Tembo that is allegely still wanted In Botswana For forgery and stealing money …the auditor himself…anyway thieves will always defend fellow thieves as the saying goes thick as thieves!!

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  6. This article makes logic but not sense, the basic matter here is that Zampost is wholly owned by Government and therefore management needed to obtain express Authority from it before moving the Funds. All parastatals and other quasi Government agencies are required to do that before making certain decisions, those who work for Agencies such as RDA, RTSA, NRFA ETC, will tell you that this is what they are required to do when or before implementing decisions with regard to Public Funds. Also, though Mr. Tembo claims that he has written this article as a professional, he has put his foot in his mouth by mentioning HH, this has diluted his otherwise logical but no sense article, surely there must be life beyond HH.

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    • I do agree with everything you have written, the inclusion of HH at the end does ruin most of his seemingly neutral stance.
      A clarification, or perhaps addition on your statement, this matter should have been resolved internally with a minor reprimand over having registered an interest account.
      Again, I am at a loss of words for how a guilty verdict was reached.

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    • What kind of theft is that whereby there’s no loss? The genesis of this is that private tunthemba wanted that contract but Emerine Kabanshi as Minister stood her ground and gave it to Zampost. This is what angered those connected to ECL. Zampost never lost any money, so the appeal might be sustained if no one leans on the court

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    • In the penal code, theft is clearly defined, there must be permanent deprivation of property. I am scrambling my brain trying to understand how the magistrate arrived at a guilty verdict, coupled with the fact that prosecution witness agreed that none of the three got any money, they confirmed having traced the money and it was confirmed to be in the accounts.
      Was she an amateur, was this her first week? Was she influenced? But even if it’s influence, these are decisions that may keep her as magistrate and never allow her to move to High Court.

  7. Mr. Tembo, before you comment on this issue, please go and clear yourself of the allegations of fraud and theft with the government of Botswana.

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  8. More wisdom shown by comrade SET than the entire upnd. These are cases which HH is demanding are sent to court for personal vendetta. Persecutions of anyone who had any relationship with pf officials.

  9. More wisdom shown by comrade SET than the entire upnd. These are cases which HH is demanding are sent to court for personaI reasons. Fuseke

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  10. More wisdom shown by comrade SET than the entire upnd. These are cases which HH is demanding are sent to court for personaI reasons. Fuseke you chi hh

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  11. ZAMBIAN YOUTH ITS TIME FOR REVOLUTION…..TIME TO OCCUPY STATE HOUSE…ENOUGH IS ENOUGH….ENOUGH LIES….ENOUGH BLAH BLAH BLAH…START MOBILIZING AND KICK ALL POLITICIANS OUT OF OFFICE NOW….ZAMBIA ARMY…ZAMBIA POLICE PLEASE STEP ASIDE

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  12. Instead of you debating on productive issues, you are wasting your time discussing Fraud.ster Auditor himself, Why doesnt he explain his audit reports done to Botswana government, that he has been evading up to now?
    Some of you are even going to an extent of inciting anarchy, which is a prosecutable case, and you can get locked up…….just .for the love of Sean Tembo`s sh!t ????
    I call it sh!t, simply because, at the beginning of his article, Sean Tembo claims he is writing this from a professional perspective, which was good, but in reality, he shows his true motive in his concluding paragraph/point 10, which is political and therefore disqualifies this whole nonsense.

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  13. They stole the money and then handed it to PF campaign for a cut. McPherson is brother to Sunday Chanda. Both are PF cadres. PF Government ignored the complaints from the public until the Western donors of the said funds intervened.

  14. UPND has found out that it’s not easy to rule a country and so their blind supporters are just cheering them and can’t distinguish sense from nonsense and wrongs from right, Deja vu it happened when Chiluba took over from UNIP and when Sata took over from MMD; so it seems we don’t learn lessons from the past. I expected a lot from this current crop of politicians considering the fact that some of them they are seasoned politicians.

    • All 13 counts are about theft Toni, AKA Kaizar (not sure how you have kept up with this for so long).
      All 13, once again, concern the transfer of money from one account to the other.
      We know you support HH, you took up the Kaizar name after that chap was fired and I didn’t think it would go on this long.

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  15. Why can’t Sean tembo visit Botswana ????

    Most of you will say he is innocent and the tswana authorities are crazy over zealous….

    It is the bending of rules to operate in gray areas which is a speciality of PF and their supporters………..

    To them operating in gray areas and pushing the limits of what is acceptable practice is a good thing……….

    One step either direction of those gray areas is a crime , but the PF theives and their supporters see that as a challenge and cheer it other on……….

    Typical of them, operating in gray areas to the just outer limits of criminality is being clever……………

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  16. This is the main problem zambia faces in its quest to be developed………..

    The tribal supremacists and their supporters who are mostly PF supporters waiste 70% of their working time on thinking of how to get rich quick by bending rules or out right theft…………

    They sit in big offices thinking of how to gain unexplained , unaccounted for wealth the whole day………….

    Production is left too Only 20 to 30 % of working Zambians and foreigners……..

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  17. I agree with brother Sean Tembo on this case. Why should Mr. Chanda and two others be sent to jail for using initiative to raise money for the corporation. They made money for Zampost though not using correct channels. It is a sham judgment. Aquit them now. The board should have ratified their actions and advised the ministry of finance accordingly. I remember the late president Sata did this for Lusaka City Council when he was governor.

  18. Again , typical of the PF supporters………

    Instead of the postmaster general concentrating all his efforts of productivity of the Post office and efficiency………….

    He was busy looking at how to cream interests and commissions by operating in gray areas……………

    Typical , that is what the PF and their supporters specialise in , get rich quick schemes…………

    Production there is no…………

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  19. Even if I don’t know , I can bet you that…….

    While chanda was busy looking at making money that way , efficency and productivity was dropping at zampost

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  20. “……..Sean Tembo the PeP President, no. I am speaking as Sean Tembo MBA, BAcc, FCCA, FCPA, FZICA a Managing Partner of an audit firm…….”

    I am Fyonyo……fyonyo……..fyonyo………

    Yet the cunt does not know the state of ZAMPOST while this was happening,….

    What were the productivity and efficiency numbers of ZAMPOST …….??

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