A WITNESS yesterday told the Lusaka chief resident magistrate Joshua Banda that former Defence minister George Mpombo allegedly falsified three receipts when he was asked to retire imprest.

And magistrate Banda yesterday ordered that trial should proceed even when the accused’s lawyer Wynter Kabimba was not present in court yesterday because he was in court when his client’s matter was adjourned to yesterday’s date.

Mr. Mooya Haalwindi, a soldier who was Mpombo’s ADC in 2008, testified that he got the receipts from a named Ndola man to produce the three receipts amounting to K18 million and paid him K250,000 as a token of appreciation.

He said the man gave him one receipt for Luangwa Lodge in Eastern Province amounting to K10 million, another for Ndola’s Chabanga Lodge worth K5 million with the last for Kanjaba Lodge worth K3 million.

This is in a case in which Mpombo is charged with theft by public servant contrary to Section 277, forgery contrary to sections 342 and 347 and uttering a false document contrary to Section 352 of the Penal Code Chapter 87 of the Laws of Zambia.

Mr. Haalwindi said it was not in order for Mpombo, 57, a farmer of house number 4 Katonte Farm, Ndola Rural to falsify information when trying to retire the imprest.

Mr Haalwindi said in 2008, Mpombo received a letter from the then permanent secretary reminding him to retire imprest and he called him (Haalwindi) and asked him why he did not manage to retire his imprest.

He was then given some receipts which he also handed over to Marble Mangala, Mildred Mulawo and Idah Shabwanga, all from Defence Ministry’s accounts department to retire the imprest on his behalf.

Mr Haalwindi said Mpombo then directed him to call a Mr Ignatius Lungu who was then his protocol officer while in Ndola who also in turn directed him to a named man whom he met the following day with Mpombo at Chabanga Lodge in Ndola where he produced three receipts from various lodges.

Magistrate Banda has adjourned the matter to July 1 for cross-examination because Mpombo’s lawyer Kabimba was not in court.

Mpombo informed the court when the matter came up for cross-examination in the afternoon yesterday that his lawyer could not be present before the court because he had travelled out of the country for a funeral.“My lawyer received an unexpected bereavement in the United Kingdom and he flew out of the country last night, so he cannot be before this court,” said Mpombo.

Mpombo told the court that his lawyer’s law firm was in the process of preparing a notice of adjournment.

When asked by the State prosecutor when his lawyer would return, Mpombo said his lawyer would be returning at the weekend.

Particulars of the offence are that Mpombo jointly and while working together with other known persons, being a public servant as minister of Defence, stole K18 million which came into his possession by virtue of his employment.

The offence is alleged to have been committed on unknown dates but between June and September 2008 in Lusaka.

Magistrate Banda adjourned the matter to July 1 for cross-examination.
[ Times of Zambia ]

Three children of Mulenga Township in Kitwe are admitted to Kitwe Central Hospital after an acid tanker crushed into the house they were sleeping in Monday night.

Kitwe Central Hospital Spokesperson Grey Chishimba told ZNBC News that one of the children sustained a fractured skull while the other two are reported to be fine.

The three children were all rescued from the debris of the extensively damaged house.

Mr. Chishimba named the three as Regina Chisenga aged two years, Theresa Chisenga, 11, and Sara Chisenga one year and five months old.

The accident happened after the acid tanker hit into a truck which had broken down and then careered off the road and landed on the house where the children were sleeping.

By Tuesday morning the acid tanker was still parked at the damaged house while the other truck was parked along the Kitwe Ndola Dual Carriageway.
[ ZNBC ]

Another pastor has been arrested by the Drug Enforcement Commission (DEC) for possessing five million kwacha of counterfeit notes.

On Sunday the DEC arrested two clergymen for being in possession of Seventy thousand US dollars of counterfeit notes.

DEC Public Relations Manager John Nyawali says Pastor Quicny Edmond Kakompe from Tabernacle of Influence Church in Lusaka was arrested for being in possession of five million Kwacha of counterfeit notes.

Mr. Nyawali has disclosed that Quincy Edmond Kakompe aged 30 years was arrested within Long Acres area with counterfeits in fifty thousand kwacha notes.

He says Pastor Kakompe was also carrying a Bible and has been arrested together with Francis Mwela, a freelance Cameraman.

This arrest comes few days after two other Pastors from Bethel City Church in Lusaka were arrested for being in possession of counterfeit notes.

Mr. Nyawali says the Commission is saddened with clergymen who are perpetuating criminal activities.
[ MUVI ]

By Elias Munshya wa Munshya

A Mr. Milton Phiri, who is described as a former ambassador in the Chiluba regime has written the Chief Justice of Zambia alleging that President Rupiah Banda breached the provisions of Article 34 (3) (b) when he claimed that both his parents were citizens of Zambia by birth or descent. Mr. Phiri claims that Rupiah Banda’s father, Mr. Bwezani Banda, Snr. was born in Nyasaland. He then came to Northern Rhodesian town of Fort Jameson (now Chipata) in the 1930s to work at a farm there. From Chipata he moved to Gwanda (Rhodesia) where he sired several children including Rupiah Banda. Mr. Banda Snr. then returned to Nyasaland in 1962. However, between 1963 and 1964, Mr. Bwezani Banda came back to Fort Jameson where he settled until his death.

Assuming that these facts were correct as presented by Mr. Milton Phiri, I will argue that the relevant laws currently applicable in Zambia do not rob Mr Bwezani Banda Snr of Zambian citizenship by birth or descent. The relevant laws to help in this interpretation is Article 34 itself as interpreted in the Supreme Court cases of Lewanika and Others v Chiluba, Zambia Democratic Congress v Attorney General, and Mushota and Katyoka v Kaunda. I will attempt to show that Mr. Milton Phiri’s interpretation of Article 34 is flawed.

Article 34 (3) (b) of the Constitution of Zambia, reads: A person shall be qualified to be a candidate for election as President if “… both his parents are Zambians by birth or descent…” The electoral laws of Zambia do require that every presidential candidate file an affidavit with the returning officer attesting compliance with these provisions. All presidential candidates, since 1996, have had to swear this affidavit. These candidates would include: Chiluba, Mung’omba, Mwanawasa, Sata, and Mumba among others.

While it is true, as held by Mr Phiri, that the constitution is the supreme law of the land, the courts of law have the competence to interpret it. It is also true that the courts of law cannot strike down the constitution. They can only provide an interpretation of the contentious issues found in the constitution. As such, unlike secondary legislation, which can be struck down by the High Court, constitutional provisions are sacrosanct. They can only be repealed by the people through parliament.

It is prudent when reading laws that after you have read a law or a constitutional article, you must ask yourself whether there is any relevant case law that has expanded or interpreted the meaning of the said law. In this case then, we must ask ourselves whether there is case law in existence that has interpreted the said Article 34 (3) (b). The rule of stare decisis states that where the courts have ruled on a matter, that ruling must stand and it must be followed in the subsequent cases, unless the new case can be distinguished from the original case.

It was in the case of Lewanika and others v Chiluba where the Supreme Court interpreted Article 34 (3) (b). The case of Lewanika and Others v Chiluba, was a presidential election petition in which the petitioners challenged the election of one Frederick Chiluba as president of the Republic of Zambia in 1996. They presented several grounds for the petition. One ground that is relevant to this article concerned their argument that Chiluba, did not satisfy Article 34 (3) (b) of the constitution since both his parents were not citizens of Zambia by birth or descent. They argued that Chiluba’s parent may have been a Mr. Kafupi who they claimed was a Congolese citizen at the time of Chiluba’s birth and that Chiluba was himself born at Chibambo CMML Mission Hospital in the Congo. They also argued that Chiluba’s parentage was at most questionable and as such did not satisfy the said constitutional provision.

In its ruling, the Supreme Court proffered the most far reaching interpretation of citizenship for those who were born before Zambia’s independence in 1964. First, the Supreme Court held that there were “no persons known as citizens of Zambia prior to 24th October, 1964.” What the Supreme Court did here is that Article 34 cannot be sued to demand that people like Mr. Bwezani Banda Snr, Reverend David Kaunda or even Kafupi Chabala be Zambian citizens. This provision of the law would only apply to those to whom it applies: that is citizens of a definite republic of Zambia after 1964.

Secondly, it does not matter where these old people were born. If they had enjoyed protection under the British Crown as people belonging to Northern Rhodesia, they became citizens of Zambia at independence. The question, therefore, would be did Mr. Bwezani Banda Snr belong to Northern Rhodesia? Since he lived in Northern Rhodesia, then the answer would be yes he belonged here. It does not matter that he was born in Nyasaland or was born in Congo as the case was with Mr. Chabala Kafupi. According to Mr. Phiri’s own account Mr. Bwezani Banda Snr lived in Northern Rhodesia for a number of years and in fact settled in Chipata from 1963. In the case of Mushota and Katyoka v Kaunda, the Supreme Court again ruled on the matter. It did not matter that Kaunda’s father was born in Malawi nor that Kaunda himself was born in Malawi, if he was ordinarily resident in Zambia and belonged to Northern Rhodesia then he qualified as citizen.

Thirdly, the Supreme Court in interpreting Article 34 even went further to declare in the words of Justice Ngulube that even an ethnically Chinese baby adopted by a person who belonged to Northern Rhodesia would satisfy the requirements of Article 34. From the judgment: “…the provision would not disqualify for example a person born in Northern Rhodesia or in present day Zambia 35 years ago of Chinese parents (say who died) who has since been adopted by Zambian parents who are Zambian by birth or by decent.”

Fourthly, the Supreme Court then held that the expectation that for a person to qualify under Article 34 they ought to be indigenous to Zambia is just not in the constitution. Article 34 does not say so. Judge Ngulube continued, “We doubt if the framers of the amendments had these problems in mind. If the aim was to provide for indigenous presidents only as suggested by counsel, then quite clearly the language of the amendments actually employed did not and could not achieve this.”

This, therefore, brings us to the obvious question, what did Chiluba and his cohorts want to achieve when they introduced these amendments? Wasn’t it their motive to deny Kenneth Kaunda the right to stand as presidential candidate? This presents the greatest paradox in law. When judges interpret legislation they do not go to the motives of the framers of the law. Judges are not mind readers. They cannot discern what were Chiluba and his parliament’s motive. They can only interpret written intent. Intent in judicial interpretation is never identical to motives. Regardless of what the motives were, the judges interpreted intent of the constitutional amendment following the literal rule. And so, if Chiluba and his parliament had the motive to disqualify Kaunda, the courts did not read those motives at all. As such, by the ruling of the court Kaunda could stand as president and so can anyone from places like China or India.

Mr. Milton Phiri’s act of writing to the Chief Justice instead of commencing legal proceedings against Rupiah Bwezani Banda just goes to show that it is not law that he is interested in. Rather, it is politics. And we have seen the politics of citizenship played against many leaders. It was played against Kaunda (Malawi), then against Chiluba (Congo and Mozambique), and then against Sata (Tanzania) and the latest victim is Rupiah. Zambia must put to rest its ghosts that keep haunting us concerning citizenship.

If it is a game of politics, Milton Phiri is welcome to play. But if it is a game of law, he has already lost the battle.