Is The Judiciary Still On Trial: The Case Of Dr. Katele Kalumba & Others

“Justice though due to the accused, is also due to the accuser. The concept of fairness cannot be strained till it is narrowed to a filament. We are to keep our balance true.” ~ Benjamin Cardozo, late American lawyer & Associate Justice of the Supreme Court

(Continued from last yesterday)

In the relatively distant past, Dr. Mumba Malila (as he then was) had been part of the government of President the late Levy Mwanawasa who had appointed him as Attorney-General. In that capacity he rendered opinions to the government and, as admitted by himself, had joined the rather populist anti-corruption crusade which, the course of its execution, suffered some substantial setbacks.

Dr. Malila had continued the prosecution of former President the late Dr. Frederick Chiluba, Mr. Faustin Kabwe, Mr. Aaron Chungu, the UK law firm of Messrs. Meer Care and Malik as well as two other UK law firms, in the London High Court. However, the decision of the London High Court could not be enforced in Zambia – the Zambian Courts refused to register it in the absence of a law establishing a mutual obligation on the high Court of Zambia and it’s counterpart the high court for England and Wales, to enforce the decisions of the two high courts in each other’s country or legal jurisdiction.

In 2022, it is Dr. Mumba Malila sitting as Chief Justice and one of the three judges who, almost a decade later, who confirmed the jailing of Mr. Faustin Kabwe, Mr. Aaron Chungu, former Finance Minister Dr. Katele Kalumba and his Permanent Secretary Mrs. Stella Chibanda by then Magistrate Mr. Edward Musona. This conviction of Dr. Kalumba and his fellow accused persons by the Subordinate Court was well before Dr. Malila was appointed to the bench.

As it turns out, two of the Supreme Court Judges who heard and passed the verdict to imprison Dr. Katele Kalumba, that is, Chief Justice Mumba Malila himself and Honourable Mr. Justice Jones Chinyama, were both actively involved in the earlier prosecution or sentencing of the four appellants during their trials at the subordinate court of these four appellants; Dr. Malila was the Attorney General and Mr. Justice Chinyama was a Magistrate, at the time, between 2006 and 2010.

As Senior Resident Magistrate, Hon. Jones Chinyama handled the cases where the former President Frederick Chiluba, Faustin Kabwe and Aaron Chungu were the co-accused on charges they were facing, involving the theft of US $500,000 from the government. The two business executives were found guilty of theft and possession of public funds and were each imprisoned for three years each.

On the other hand, Dr. Chiluba was acquitted on the basis that the State had failed to prove the cases against him, and also noting that Dr. Chiluba, as President of the Republic was not subject the rules which governed the conduct of public officers. He was not a public officer. The then Magistrate Chinyama had, however, found Dr. Chiluba’s co-accused, that is, Access Financial Services Limited former directors Aaron Chungu and Faustin Kabwe, guilty.

Clearly the two judges should not have sat to hear and determine the appeal, in this case as they were largely prejudiced and biased because of their previous roles in these matters. It is reasonable to extend the requirement of a neutral arbiter to a dispute, that is, that no one shall be judge is his own case, to those who had previously prosecuted or heard and pronounced themselves on similar matters against the same accused persons.

BLIND OR AGITATED JUDICIARY TO PUBLIC COMMENTS?

In Chapter IV of his 2011 article, Dr. Malila discussed the question of why the Zambian Judiciary cannot afford to ignore comments about its independence and integrity. Among all arms of Government, it is the Judiciary which must actually adopt the Voltairean principle, “I wholly disapprove of what you say but will defend to the death your right to say it.”

And when opening the 2023 Criminal Session, Chief Justice Malila urged judges to determine cases based on evidence and the law, and not to allow themselves to be influenced by external pressures and factors such as political statements or indeed their own prejudices.

While the Chief Justice is not far from the truth when he stated that there is indeed a risk of push back against the anti-corruption efforts by powerful persons and sometimes by the very individuals being called upon to account or by their proxies, the greater risk though is that of “push forward” of corruption cases even when the evidence is insufficient, is not cogent, is scanty or even non-existent, as appeared to be in one case I closely followed in the new Financial Crimes Courts.

The internal ‘push forward’ in these cases could be motivated by the need for courts to be seen to be doing something in the so-called fight against corruption. It is not inconceivable that some in the Judiciary may want to be seen singing the same hymn with the executive under the guise of fighting corruption, by convicting persons through the use of an easy Forfeiture of Proceeds of Crime law, under which possession of property reasonably suspected to be proceeds of crime is sufficient to secure a conviction. After all, it may be reasoned that these cases do not require proof beyond reasonable doubt but just suspicion.

The role of the courts is to dispense justice in a fair, impartial manner and without prejudice. This is what we mean when we say Justice is blind. Judges and Magistrates must fairly make decisions based only on the information presented to them, rather than based on personal experiences, or who they like most. The courts are supposed to protect the rights of the people without being influenced by outside forces or the singing, grievances, and recitations by the complainants.

The moment the executive or even the top Judge himself begin to lecture Judges and Judicial Officers, asking them to open their eyes towards what is happening outside the courtroom, in the public sector, or to the public purse and telling them that they have a duty and must restore what was allegedly stolen, is the time when we asking Judges to remove their blindfold. In simple terms, it is asking judges and judicial officers to use our prejudices, likes and dislikes when hearing cases or in passing their verdicts.

It is a fair opinion to state that Chief Justice Dr Mumba Malila is clearly attempting to align the attitude of the Judiciary to the wishes of the Executive branch whose motivation in its pursuit of those accused of corruption can no longer be the conduct of fairer trials and impartial assessment of evidence but merely getting convictions for political expediency and wining international accolades.

Will we see, under the leadership of Mr. Chief Justice Malila, the Judiciary becoming the guardian of the executive branch or the Judiciary becoming the security guard of the Treasury, and not the guardian of citizens’ rights and liberties, including the right of accused persons?

But His Lordship did not forget to also sternly warn the public against what he termed irresponsible criticism, when he said:

“We will not condone baseless attacks aimed at ruining the judiciary with regard to current reforms taking place.”

Dr. Malila said the judiciary was not flattered by criticism which was vicious and irresponsible and would not condone such behaviour. He said the judiciary welcomed constructive criticism and would always adopt well balanced views regarding the performance of the institution.

It is becoming apparently clear that the three powerful arms of government are positioning to insulate themselves from vicious public criticism. The Legislature is in the habit of summoning members of the public who criticise it and subject them to reading apologies they don’t not write themselves.

When a person refuses to read such apology written on their behalf, whose wording they don’t agree with as did Hon Raphael Nakacinda, then they are told to wait for other stern action to be taken. Hon Cornelius Mweetwa suffered some suspension for refusing to apologise but Nakacinda may be unlucky because the Judiciary, which itself is warning the public against vicious criticism, may be asked to send him to prison. There may be no one to defend his right to expression.

I agree with Dr. Malila that the public must offer constructive criticism to the Judiciary. Afterall, the Judiciary is accountable to the citizenry whose judicial power they exercise. But vicious criticism is also not to flatter the Judiciary. Those who use vicious criticism are people that believe options have run out for communicating its messages or the Judiciary is ignoring public comments regarding its performance.

Among the three arms of government, the Judiciary is supposed to be a leader in protecting the right to expression as it did in the case of Roy Clarke whose sharp criticism of the executive, through satire, had earned him deportation which the court reversed. Even though freedom of expression is not absolute, the Judiciary must protect this freedom of expression to the biggest extent possible.

CONCLUSION

It is the conclusion of this author that Dr. Malila has joined the executive in grieving on how corruption cases are taking long, and is now reciting the same verse in warning public officials. Is this a subtle way of asking his carefully selected magistrates at the financial crimes courts and Judges to take note of these external factors even as they hear cases and deliver their verdicts? Is our celebrated Dr. Malila telling Judicial Officers and Judges that they must remove the blindfold?

There can be no due process, no rule of law, no justice without neutrality from our adjudicators or when adjudicators are enjoined to be part of the executive’s anti-corruption drive, largely expecting them to convict or to order that people’s properties be taken away based on the weapons we have put in the law and gifting it to the State, who have now found an easy weapon in the law which doesn’t require them to prove the real crime that could have been committed before convictions can be made and peoples properties taken away in a country with an informal economy.

[Published by the Zambia Daily Nation in three series]