By Charles Ngoma
There is a story Bible about a man called Zacheus. Zacheus was an employee of the government of the day and worked at the colonial Tax office. The local people deemed anyone who worked for the government a traitor. Not only that, Zacheus was also corrupt and abused his office by getting more money from the citizenry than they were liable. As a result of his illegal activities he became very wealthy. One day, he heard the rumble of a crowd outside his office. He ran out to see what was going on but he couldn’t make out because the crowd was too big. He decided to take advantage of the height of a sycamore tree. He climbed it and saw the reason for the crowd. A popular Sage was passing through the city! Suddenly the Sage stopped under the sycamore tree and looking up, said, ‘Zacheus, come down. I am going to have dinner at your house today.’ Zacheus must have been used to hosting dignitaries, but this was going to be different. Excitedly, he got down and loved it to lead such a man to his house for dinner. While there, something changed in Zacheus and he decided to give away half of his wealth to the poor, and repay whomsoever he had defrauded four times over!
This essentially is the Law of Restitution. Imagine if Zacheus had simply been arrested and thrown into jail. It could have satisfied many who were injured by his corruption, but it would not have changed their financial status.
What I would like to advocate through this short article, is simply this. Unless a corrupt act or abuse of office directly harms a person’s life, it should be tried under civil jurisprudence rather than criminal. Why do I say so?
For primarily three reasons:
- As long as cases are brought under criminal law, the burden of proof is on the State and to convict a person there must be enough evidence beyond reasonable doubt. This tends to be a very expensive and convoluted process. At the end of it all, the State may have got its man, but the people that suffered as a result of the corrupt practice are no better off. I am aware that there is the Forfeiture and seizure of proceeds of crime legal instrument by which the State can recover the stolen assets. But, the State cannot get to this point before conviction in the first. There are people who are advocating the lowering of the burden of proof in cases of corruption. I don’t think that is a good idea. We would end up with the kind of conundrum we had with un-bailable crime of motor vehicle theft.
- Under civil litigation, one can be convicted purely on the balance of probabilities. If that is the case, they may not go to jail, but a fine may be imposed and all the property that they corruptly acquired may be retrieved.
- Every person in public office essentially enters a contract with the public to which they owe service. When people abuse their office and are corrupt, they breach that contract. Therefore it can be shown easily that the officer, including the Head of State is under legal duty to act in a particular manner. If he failed to act in an expected manner and as a result of his action or inaction the public suffered loss, then he should be liable under Tort law.
In the case of the former President Dr FTJ Chiluba, the London High Court convicted him and others over the $48 million that was mis-appropriated. The Zambian Magistrate court could not convict him over theft of $500,000! There are many theories about Magistrate Judge Chinyama’s judgement. I am yet to see any clear reasoning against that judgement that the then DPP refused to appeal. So, we can all just speculate about who did what. The point is that a civil court easily convicted over a vast amount of money, but a criminal court didn’t over far much less. Sit back for a moment and imagine how much better off every Zambian would have been if it had all ended with the London High Court! I beg to move.
Disclaimer: I am not a Lawyer
