PART 3: QUALITY OF THE SUPREME COURT JUDGEMENT
By Sean Tembo – PeP President
1. According to paragraph 5.1 of the Supreme Court judgment, Faustine Kabwe and Aaron Chungu, who were the 3rd and 4th accused respectively in this matter, were convicted on two counts under section 29(2) of the Anti Corruption Act No. 46 of 1996. In upholding these convictions, the Supreme Court restated the evidence against the accused persons in paragraph 8.1 to 8.5 of the judgement. Out of interest, l decided to look at the exact wording of section 29(2) and cross-reference it to the evidence aduced against the accused persons and see whether the evidence as presented is sufficient to sustain a criminal conviction.
2. Section 29(2) of the Anti Corruption Act No. 46 of 1996 states as follows; “any person who by himself, or by or in conjunction with any other person, CORRUPTLY GIVES, promises or offers any gratification to any public officer, whether for the benefit of any public officer or of any other public officer, as an inducement or reward for doing or forbearing to do, anything in relation to any matter or transaction, actual or proposed with which any public body is or may be concerned, shall be guilty of an offence”. Please note above that the capitalization of the term “CORRUPTLY GIVES” is entirely mine and is for emphasis only, as it will form the basis of my arguments below.
3. Now, when you GIVE something to someone, it means that you are transferring ownership of that thing from yourself to the other person. If l give you K1,000 it means that l have transfered ownership of that K1,000 from myself to you. If l go to a mobile money booth and l give K1,000 to the mobile money agent so that he can send that K1,000 to your mobile money account, it is me who has given you the K1,000 and not the mobile money agent. The mobile money agent has merely facilitated the transaction. In other words, you cannot GIVE something that you do not own. The mobile money agent cannot be said to have given you K1,000 because he did not own the K1,000. I owned the K1,000 so l am the one who has given it to you, using the mobile money agent as a facilitator.
4. Therefore, in the context of section 29 (2) of the Anti Corruption Act No 46 of 1996, a person cannot be found guilty of corruptly giving gratification to a public officer if that gratification did not belong to that person and the person was merely acting as a legitimate and bonafide facilitator. In other words, if l go to a mobile money agent and send a bribe of K1,000 to a Police Officer, it is me the owner of the K1,000 bribe that would have committed an offence under section 29(2) and not the mobile money agent.
5. In the case of Faustine Kabwe and Aaron Chungu, according to paragraph 8.1 to 8.5 of the Supreme Court judgement, the Court says they used their company; Access Financial Services Limited to pay for Professor Mweene’s cottage in the first count, and to pay for Stella Chibanda’s farm in the second count. However, the Court acknowledges in the last sentence under paragraph 8.2, page J18 of the judgement that the payments were made from funds belonging to the Zambia Security Intelligence Services (ZSIS). The Court further acknowledges in it’s judgement that Faustine Kabwe and Aaron Chungu’s company; Access Financial Services Limited was a duly registered financial institution under the Bank of Zambia (BOZ) and that the Zambia Security Intelligence Services was it’s client. Access Financial Services Limited executed payment instructions from ZSIS from time to time, as any financial institution would do with regard to it’s clients.
6. Under the circumstances above, it is my considered view that the evidence against Faustine Kabwe and Aaron Chungu was not sufficient to support a conviction under section 29 (2) of the Anti Corruption Act No 46 of 1996. Convicting the two individuals is the equivalent of convicting a mobile money agent for sending a money on behalf of a cleint. Money which is later established to be a bribe. A mobile money agent is in the business of sending money, and it is not his business to investigate the purpose for the money being sent. Just like Access Financial Services Limited was in the business of executing payment instructions on behalf of clients, provided such instructions are duly authorized.
7. The question then is why did the Supreme Court issue such a flawed judgement? The answer partially lies in the composition of the bench. It is my considered view that two of the three justices should not have been part of the panel that considered this matter because they were fundamentally conflicted. Justice Chinyama convicted two of the appellants when he was still a Magistrate and Chief Justice Mumba Malila prosecuted this matter in the London High Court when he has still Attorney General. Therefore, for reasons stated above, the two justices could not have possibly adjudicated this matter fairly and objectively.
8. As a matter of fact, when you critically analyze this Supreme Court judgement, you will realize that there is a concerted effort to unduly assign culpability on the accused persons. For example, paragraph 18.13 on page J55 of the judgement says “Additionally, if the 1st Appellant truly got a loan, and genuinely bought the farm, and she was remitting the money to AFSL, there would have been no need to mask her ownership under the company name”. Really your Honors??? Since when did buying a property under a company name amount to masking your identity and constitute evidence of corruption? As a matter of fact, all my properties except for one, are under company names. I also encourage my clients to purchase properties under a company name because they’re certain tax incentives that you enjoy under a company which you cannot enjoy as an individual.
9. If you are going to send people to prison for five years with hard labor, then at least do it on a sound basis. You cannot deprive people of their liberties and your only evidence of wrongdoing is that the person bought a property under a company name instead of their individual name? And to think that such a shallow judgement is coming from the highest Court in the land; the Supreme Court, really sends shivers down my spine.
10. In the premises above, it is my humble submission that President Hakainde Hichilema should consider pardoning the four convicted persons; Katele Kalumba, Faustine Kabwe, Aaron Chungu and Stella Chibanda. There is no sound evidence to sustain their conviction and continued incarceration. The reason l insist that people must be treated in a just, fair and equitable manner is because when our turn comes, we too would want to be treated in a just, fair and equitable manner. In Eastern Province we say; “chaona mzako chapita, mawa chili pa iwe”.
Unfortunately your opinion will change nothing. We all have opinions at the end of the day, the honorable members of the court delivered the judgement.
Done and dusted next case please…..
This silly boy ST doesnt know how to choose his battles its no wonder he gets zero votes…I mean do votes care about arresting chaps who had access to Millions of dollars via a slush fund account.
….do voters………..
Pardoning them still means their conviction stands.
It was wrong for Malila a d Chinyama to sit on the bench to hear this case
Access Finance was set up by ZSIS for the purpose of money laundering, therefore its directors are culpable. They are all part of ZSIS. Now let us arrest Xavier Chungu! He is the only one whose evidence could have set these minions free. No head of Intelligence was as powerful as Xavier Chubgu nder Chiluba. Chungu became a god because of the deals he had done with Chiluba and others in MMD including the late Sata.
Arresting someone who was as powerful as Xavier is tricky as the chap is sitting on a pandora box of unspecified evils and criminality that occurred during FTJ’s era…he knows too much…Russians have a swift way of dealing with such people!!
ST……..
You can not be more knowledgeable than the whole 4 past GRZ governments…….
There is more evidence that past GRZ have………
Stop waffling nonsense
My comment is awaiting moderation. You will see it after moderation.
Sean, prima facile, you seem educated enough to understand that some of your arguments are no-brainers but surprisingly you choose to embarrass yourself anyway! So, according to your mobile money analogy, is it wrong to punish a bank for facilitating the transfer of illicit (drug-related) funds just because the transfer is duly authorized by a long standing client? Sometimes, it is okay to keep quiet even if the person convicted is your benefactor or personal friend.
Actually banks are duty bound to report suspicious transactions.
Its this shameless boy ST he still continues with his drivel ati opposition President really laughable!!
Actually banks are duty bound to report suspicious transactions.
It was wrong for Malila a d Chinyama to sit on the bench to hear this case
The president HH was right when he said a lot of people on death roll should not have bn there. He was telling us about flawed judgements that have sent people to prison.
If its one thing zambia has in abundance in law brains………
We have law professors, street lawyers , tarven lawyers , armchair lawyers …….there are lawyers everywhere……
There is noway a high profile case like this can pass as miss carriage of justice for so long………….
Zambians are very well read in law, even more than the owners who created English law………….
So ST , you are just waffling………
Zero tembo you can write up to part 15,16 or 17 the thieves will still remain convicted.
Mediocre judgement from the highest court.
IF TAKING KABWE AND CHUNGU TO PRISON IS THE ONLY MEAN THE GOVERNMENT CAN USE TO AVOID LOSING HUGE MONEY BECAUSE OF THE WAY THE Access Financial Services Limited WAS TAKEN OVER BY BOZ FROM THEM. THEN EITHER DEMONS OR ANGELS WILL SURELY BE RESPOSIBLE FOR THE FINAL JUDGEMENT…SOMEONE WILL SURELY PAINFULLY PAY. HE WHO HAS EARS LET HIM HEAR WHAT THE SPIRIT SAYS ” UKWALI INSOKE TAKWAFWILE BANTU”