Is Kaaba Covering Corruption? An Open Letter to O’Brien Kaaba

Dear Kaaba,

I have just read a statement attributed to you in which you are explaining why you entered a consent judgement with Marshal Muchende, the Solicitor General of the Republic of Zambia, who, according to what you recently told us, is corrupt.

As you know, I was among those who had wondered why you consented to the withdrawal of the case in which Marshal had sued you for defamation when, according to what you told us, you had evidence of his corruption. I stated that if Marshal wanted, for whatever reason, to discontinue the suit, he could have done so without your consent by simply filing a notice of discontinuance. On your part, you could have simply insisted that you had evidence to prove your assertions and left it to him to discontinue the matter on his own volition. This way, the public would have concluded that the defamation case that Marshal brought against you was nothing more than an intimidation tactic. By agreeing to end the matter through a dubious and pointless consent judgement, you called into question your own character. In the absence of a clear explanation from you, I concluded that the implication of what you had done is that you:

(i) did not have evidence of corruption against Marshal and were simply being malicious;

(ii) were talked out of the issue of exposing Marshal’s corruption by Marshal himself, President Hichilema, or/and other senior leaders who may have felt that a court trial would expose the extent of the rot and embarrass the President, government, or the ruling party;

(iii) had been intimidated by President Hichilema who has shown extraordinary determination to protect the Solicitor General; or

(iv) have finally been compromised and co-opted into the corrupt network so that you, too, can eat with the group.

I felt that whatever it was out of these four possibilities that informed your decision, none reflects very well on your reputation, as the outcome presents you as an unprincipled person of a shady character and a coward who trembles in the face of intimidation or pressure. I am glad that you have now come out to put it on record that your decision to embrace a Solicitor General you told Zambians is corrupt had absolutely nothing to do with public interest – the platform on which I thought you had originally stood – but was motivated by private considerations including your desire to make “personal amends and assurances” to the same State official whom you now ‘respect’. To avoid misinterpreting what you said in the statement, it is worth quoting your remarks in full:

“STATEMENT ON SETTLEMENT WITH MR MARSHAL MUCHENDE SC

I have received numerous questions about the consent to discontinue the defamation suit between the Solicitor General, Mr Marshal Muchende, SC and myself, particularly, 1) If I was intimidated by State House to discontinue the matter, and 2) If the settlement amounts to an admission of wrong doing on the part of Mr Muchende.

I would like to state categorically that State House has not been involved in either our dispute or our out of court settlement which culminated in the Consent Judgment to discontinue the matter.

It can neither be said that I was coerced into agreeing to terminate the dispute especially that I was not the Plaintiff in the matter nor can it be said that the settlement amounts to admission of guilt on the part of the Solicitor General.

The decision to settle the matter was arrived at voluntarily, magnanimously and conscientiously by the Solicitor General and myself under the aegis of our respective lawyers and indeed our collective interest, mutual respect for each other, as well as my personal amends and assurances.

It is my sincere hope that the pain and inconvenience that this unfortunate episode has caused to both of us can be put behind us. I wish the Solicitor General well.”

O’Brien Kaaba (Dr)”

I note from this statement that you have neither withdrawn your earlier declaration that the Solicitor General is corrupt nor retracted your assurance that you have evidence in support of your assertion, evidence which you had pledged to present before the court after Marshal, on whose behalf you are now even speaking, sued you for alleged defamation. I further note the revelation that you have not been intimidated by anyone and your newly developed ‘mutual respect’ for the same person you told us is corrupt only a few days ago.

Arising from this context, I have a few questions that are informed by public interest, a subject that is entirely missing from your statement. These questions relate to what you intend to do with the evidence you claimed to have marshalled of Marshal’s corruption – the same evidence in your possession that you had planned to use to ‘demonstrate before court the truthfulness of your assertion’ that he is corrupt. Are you going to use this evidence to lay a complaint of corruption against the Solicitor General before the Acting Director General of the Anti-Corruption Commission (ACC) Monica Mwansa? If the answer to this question is YES, is it possible to let the public know when you plan to do so, so that we, members of the public, may subsequently urge the ACC to treat the matter with the urgency it deserves, given the sensitivity of the public position occupied by the person you would be reporting for corruption? In addition, if the ACC fails to act on your complaint, are you willing to file a complaint of criminal behaviour against the Solicitor General before the Magistrates’ Court so that Marshal can be summoned to explain why he was, in your words, receiving kickbacks?

If, for whatever reason, you have no plans of reporting the Solicitor General to law enforcement agencies or to lay a complaint against him before the Magistrates’ Court, are you willing to share the evidence of his corruption which you had pledged to present before court so that those interested can use the same evidence to report him to the ACC and, if need be, institute private prosecution against him? As you know, one can only report a corrupt activity to the ACC or file a complaint before the Magistrates’ Court if they have evidence showing that a person has committed a crime. I would imagine that part of what you mean when you say you are wishing the Solicitor General well includes seeing to it that the man you have told us is corrupt clears his name before a competent tribunal. The propositions I am suggesting would not only help achieve this desire but also promote justice. As it stands, no one can be blamed for referring to Marshal as corrupt based solely on what you told us – a statement you have not withdrawn.

In case you are wondering why I am focusing my energies on you, not the person you have told us is corrupt, it is because I have absolutely no faith in the ability of the Solicitor General to resign on his own accord nor in the capacity of the President of Zambia, Hakainde Hichilema, to dismiss him from public office based on what you said and other considerations. As you very well know, the ACC has confirmed that they have, since last year, been investigating the same person you have told us is corrupt on a separate matter of suspected corruption involving US$500, 000.

In a truly functioning country with a president who has the political will to fight corruption, such a public officer would have been suspended to prevent them from interfering with the course of investigations and to give or preserve some element of credibility to the investigations. In a truly functioning country with public officers who respect the people, consider public service posts as positions of trust, and possess ethical values – such as moral force of character, integrity, honesty, and the selfless pursuit of the public good, and not the selfish striving for personal gain – the affected public officer could have also resigned on their own for the same reasons. Unfortunately, Zambia is today woefully lacking on both scores, suffering from the calamity of the absence of this kind of leadership. We have no president with the courage and decisiveness that is required to drop senior government officials who are accused of, or involved in, corruption. Neither do we have a Solicitor General who, because he is being investigated for corruption, can resign on moral considerations.

As a result, we, members of the public, are at the mercy of the evidence of Marshal’s corruption that is in your possession, if we are to stop the continuation of this travesty of having a person you have told us is corrupt occupying such an important office of our Republic. Unless yours was a fight for inclusion at the looting table rather than a genuine commitment to anti-corruption; unless you are out to cover Marshal’s corruption (here, I am referring solely to the corruption you told us he was involved in), I am hopeful that you will use the evidence in your custody to report the Solicitor General to the ACC for corruption, failure to which you will approach the Magistrates’ Court for redress. Corruption stinks. In fact, it kills. I appeal to you to do everything necessary to help Marshal clear his name or bring him to justice. For the reality is that unless you act, you will, in effect, be seen to be covering corruption.

Lastly, I read that the former ACC Director General, Thom Shamakamba, has sued you for defamation based on the statement you made that he, too, is corrupt. I am sure you have the evidence even in this case, and I look forward with interest to the commencement of trial. It is very important to use your case against Shamakamba to send a strong message about the cost of engaging in corruption to the self-serving elite class at the heart of public life, including those who occupy key positions in several state institutions and are complicit in the fall from grace of Zambia, and in sustaining our state of backward poverty and extreme cultural impoverishment. As you probably are, I am outraged that we seem to have a shameless set of corruptible leaders, who are betraying Zambia to foreign commercial interests, who are pawning off the country for a few trinkets, who are accumulating through brazen theft of public resources and massive sale of Zambian land to so-called investors, and who are strutting around with self-importance when they are nothing but disposable playthings of even bigger global kleptocrats. All this is happening when poor Zambians are struggling to afford basic needs, battling with crippling power outages lasting as long as 20 consecutive hours a day, and contending with the devasting cost-of-living crisis that has been worsened by an elitist, insensitive, and out-of-touch approach to leadership, one that prioritises the needs of foreigners and the rich.

If you were neither bluffing nor taking Zambians for fools when you told us that Shamakamba is, like Marshal, corrupt, then you deserve our utmost support in your upcoming court case against him. If there is anything I can do to help, please do not hesitate to get in touch. My email address is [email protected]. I say all this devoid of any drama and out of a sincere duty of care for your reputation. As the readers know, reputation is hard to build but so easy to lose. Our country is in dire need of men and women of reputable character who are loyal to the truth – not to individuals or narrow interests – and who do not change principles based on circumstances or who they are dealing with. It would greatly disappoint many people and leave your reputation in tatters if, in addition to what you have done with Marshal, you accepted to enter another content-less consent judgement with Shamakamba, like the settlement you made with the – according to you – corrupt Solicitor General.

In case you do not know, there are many people who look up to you, some as a role model. These include the University of Zambia students whom you teach in the School of Law; the upcoming and young generation of lawyers who follow your example; the different boards on which you serve such as Laura Miti’s Alliance for Community Action and the Zambia Law Development Commission; the diplomatic representatives of foreign missions in Zambia; the journalists in both the print and broadcast media who interact with you in the sincere belief that whatever you share with them is truthful; the local civil society organisations with whom you work closely on matters of governance; and indeed members of the public who see you as contributing to a public intellectual culture and who believe that the acquisition of specialist knowledge should result in its application to causes and communities that need it most.

It is therefore very important that you do whatever is necessary to protect your reputation from harm. Any failure, on your part, to report the Solicitor General to the ACC for corruption using the evidence in your possession, or to use the same information to lay a complaint of criminal behaviour against Marshal before the courts, or to publicise the specific details that made you conclude that he is corrupt, would ruin your reputation. All those who believed in or look up to you, including the different interest groups I just mentioned, would feel greatly disappointed and never take you seriously if you left them believing that you took them for fools and were just bluffing when you said Marshal is corrupt. They will also likely feel the same way if they woke up tomorrow and discovered that you have signed another shady consent judgement with Shamakamba or retracted and apologised for your earlier statement that he too is corrupt.

Yours, in defence of public interest,

Sishuwa Sishuwa

Citizen