Part I: About Wrongful Convictions: A case of Katele Kalumba

By Sean Tembo – PeP President

1. So yesterday after l wrote an article about why l believed the upholding of the conviction of Faustine Kabwe and Aaron Chungu by the Supreme Court of Zambia was misdirected, someone shared with me the full court judgement. I have read the entire 81 page document and there are certain findings and conclusions made by both the trial court and the appellate court in this matter, that l deem to be outright unsound and potentially dangerous to our case law. It is common knowledge that financial crimes are often difficult to prosecute because they tend to be disguised in multiple layers of complexity. As someone who has more than 20 years of experience as a forensic auditor with the requisite qualifications; MBA, BAcc, FCCA, FCPA, FZICA and who has testified in multiple financial crimes cases as an expert witness, l feel duty-bound to challenge some of the findings and conclusions that were made by both the trial Magistrate’s Court and the Supreme Court in this matter.

2. In looking at a case such as this one, the context really matters. Without appreciating the context, it would literally be impossible for anyone to arrive at the correct conclusions. My considered view is that the courts did not appreciate the context in which the transactions in question took place. The entire case is premised on 13 payments amounting to about $66 million which are said to have been processed by the Ministry of Finance and submitted to Bank of Zambia for onward payment to a Zambia Security Intelligence Services (ZSIS) Zamtrop Account that was maintained at ZANACO London branch in the United Kingdom. ZSIS was to forward the payments from their Zamtrop Account to two United States based security companies namely; Wilbain Incorporated and Systems Innovations. The contracts were for undertaking security upgrades at certain Government installations such as Lusaka High Court premises, Kenneth Kaunda International Airport, Ministry of Finance etcetera. The allegations against Katele Kalumba and Stella Chibanda are that they overpaid the Zambia Security Intelligence Services by approximately $20 million and that in return ZSIS gave kickbacks to the two individuals. The allegations against Faustine Kabwe and Aaron Chungu are that they facilitated the Zambia Security Intelligence Services to pay kickbacks to Stella Chibanda and another person called Professor Mweene.

3. Specifically, the case against Katele Kalumba is that while he was Finance Minister he received $4,000 cash from ZSIS. Katele Kalumba admits receiving the money but explains that in addition to being Finance Minister, he was also a ZSIS secret agent and that the $4,000 cash payment which he received from ZSIS was for purposes of entertaining some guests and paying and informant in the course of doing his work as a secret agent of ZSIS. An Executive Director at ZSIS testified in the trial court and collaborated Katele Kalumba’s story. However, the court found him guilty of receiving a bribe of $4,000 cash from ZSIS as inducement for him to authorize payments amounting to approximately $66 million to the Zambia Security Intelligence Service’s.

4. One of the questions which the court should have asked itself is whether someone who has authorized approximately $66 million would be given such as small amount as $4,000 as inducement, as the prosecution alleged? Like Judge Judy often says; if it doesn’t make sense then it’s not true. If indeed ZSIS wanted to give a Finance Minister an inducement for authorizing payment of millions of dollars, they would give him something much more substantial than a partly $4,000.

5. In arriving at it’s decision to convict Katele Kalumba, the Court listed a number of factors that were considered. One of the factors was that Katele Kalumba did not retire the imprest for the $4,000 as required for all Cabinet Ministers. However, the Court ignored the fact that Katele Kalumba was wearing two hats here. There was Katele Kalumba the Finance Minister and Katele Kalumba the secret agent of the Zambia Security Intelligence Services, and the $4,000 cash was given to Katele Kalumba by ZSIS, not in his capacity as Finance Minister but in his capacity as their secret agent.

6. The other finding made by the Court in convicting Katele Kalumba was that the evidence showed that security upgrades done at High Court, Lusaka International Airport, MoF etcetera as per contract with the two US based security companies were too little for the $66 million or so paid. Well, my considered view is that the Court failed to take into account the fact that it was dealing with the activities of the Zambia Security Intelligence Services and therefore everything is not as it appears. The actual security upgrades might have been done somewhere else and the High Court premises, Lusaka International Airport, MoF etcetera listed in the contract might have only been a cover story. If our intelligence services are going to generate the capacity, competence and sophistication needed to protect the country from internal and external threats, then they need to be given room to operate.

7. Take for instance the security tunnels under State House that were revealed by former President Chiluba, did the Court expect to see a contract from ZSIS saying they are digging tunnels at State House for the President to escape in case of an emergency? Of course not. Obviously when the tunnels were constructed, the contract was disguised as something else, maybe as construction of a bridge in Vubwi district. Imagine prosecuting a contractor because there is no evidence of a bridge in Vubwi district as per contract with ZSIS?

8. My point here is that it was wrong and unnecessarily overzealous for the DPP to pursue this entire case as it exposed the tradecraft of the Zambia Security Intelligence Services and consequently compromised the security of the Republic. It was even more wrong for the Court to convict the accused persons based on the intelligence activities of ZSIS, which the court has no capacity to comprehend. At the end of the day, the Court applied civilian standards of accountability to intelligence activities which is foolhardy. If the activities of the Zambia Security Intelligence Services could be fully accounted for with receipts and imprest retirements as the Court demanded, then it would be the worst intelligence agency in the world!! But given the fact that the highest Court in the land has made it’s pronouncement, albeit a wrong one, it is now up to President Hakainde Hichilema to correct the injustice done to Katele Kalumba, Stella Chibanda, Faustine Kabwe and Aaron Chungu. These four need to be pardoned immediately by the President. We do not need to wait for Independence Day or African Freedom Day or indeed any other special day. The four are victims of a malicious DPP and an incompetent judiciary. It is President Hakainde Hichilema’s duty to right this wrong.