FORMER President Frederick Chiluba says the case in which he is charged with theft should be dismissed because it appears to be novel and mere fiction.Chiluba said this in his final defence submissions filed in court by his lawyers, Robert Simeza and John Sangwa on Friday.
This is in a case where Chiluba is jointly charged with defunct Access Financial Services Limited (AFSL)) directors Faustin Kabwe and Aaron Chungu for theft of public funds amounting to US$507,886.7
Chiluba is facing six counts of theft by public servant, contrary to Sections 272 and 2777 of the Penal Code, Cap 87 of the Laws of Zambia.
He says his case appears to be ill-conceived and intended to achieve political motives.
Chiluba has argued that no evidence was led from any factual witness to show what he did to warrant theft charges against him.
“Investigators appear to have had a predisposition from inception as they proceeded on a presumption of guilt. They presumed frauds and jumped to conclusions on legitimate transactions without taking into account explanations from the person who was knowledgeable about the transactions,” Chiluba says.
The thrust of the prosecution case is that Chiluba stole Government money, which left the Ministry of Finance through the Bank of Zambia into the Zamtrop account, an operational account of the Zambia Security Intelligence Service (ZSIS).
The account was operated and regulated by the ZSIS Act number 14 of 1998 and the 1970 Finance Charter.
Chiluba says as an MMD policy, the ruling party raised money from well-wishers and it was used to meet party needs.
He says the money he received for personal and party projects was to be managed by the ZSIS and that whenever he had a need to be met in from of payment, such payment would be met from the money held in the intelligence’s account.
Chiluba says the Zamtrop account has been subjected to three forensic audits all of which established that the account received a total of US$8.5 million from private sources.
He says his money is still in Zamtrop and he will demand it after the proceedings.
Chiluba says he used to send money for his children’s school fees in London to Zanaco and the money was initially kept as cash in the bank and credited to a miscellaneous ledger.
He says statements from two bank officials were that Zamtrop received other payments, which then ZSIS director-general Xavier Chungu advised that they were meant for Chiluba.
“The statement of Mrs Beauty Kaluba confirmed that some money was received for the President and put in Zamtrop but described this money as non Zamtrop because it was meant for the President,” Chiluba says.[quote]
He says the weight to be attached to his testimony should be dependant on whether there is any competing evidence from the prosecution on the matters he testified about.
Chiluba says where there is no evidence to the contrary contradicting his statement, his unsworn testimony should be believed, especially that there is evidence from both the prosecution and witnesses called by the defence, which corroborates matters upon which he was called to testify.
He says the charges brought against him for acts or offences allegedly committed while acting in his official capacity are legally incompetent as he is not amenable to criminal jurisdiction of any court in Zambia.
Chiluba says the National Assembly was clear when it clearly stated that Chiluba would only be amenable to the court’s jurisdiction in respect of acts done in his personal capacity while he held Presidential office.
He says the charges brought against him relate to acts purportedly done while he was performing the functions of his office and that his whole prosecution is unconstitutional and legally wanting.
Chiluba says as Republican President then, he did not qualify to be called a public servant and the charge against him under Section 277 of the Penal Code is legally wanting.
He says in count two where it is alleged that he stole US$125,000 on cheque number 6119, the evidence from the prosecution shows that the money was paid to DH Kemp & Company.
Chiluba says in count three where the charge is that he stole US$148,030 cash, the evidence from the prosecution witness is that the money was transferred by AFSL to E Florence in Scotland, adding “there is no evidence to the contrary.”
Chiluba said in count seven it is alleged that he stole US$123,980.25 in Lusaka but evidence from the prosecution shows that the money was paid to University of Hertfordshire and Christchurch College (for his children’s fees.)
Chiluba says in count eight he is alleged to have stolen US$27,906.48 cash in Lusaka on October 14, 1999 but evidence from the prosecution shows that the money was transferred to Cambridge Centre in London.
He says the prosecution has lamentably failed to prove that he took the money he is alleged to have stolen on all the counts as no evidence of the taking was led.
As regards the allegation that he fraudulently converted US$123,980.25, US$27,906.48 and US$33,000 for the benefit of his children, Chiluba says there is no evidence to show what role he played in the transactions involving payments to universities and colleges, and cash collected by the children.
He says the fact that Chiluba had private funds in the Zamtrop is beyond dispute and it would appear that the prosecution’s contention is why private funds were banked in a government account.
“However, this is ignoring the fact that he did not decide by himself to use the Zamtrop account for his personal monies but was advised to do so by the mandate holder of the account, who was also controlling officer in his department,” Chiluba says.
He says the prosecution’s refusal to produce the Finance Charter was certainly not intended to advance the cause of justice.
“The prosecution deliberately suppressed evidence which would have showed that in fact the whole case, which arises from payment of monies out of the Zamtrop to private individuals, is unwarranted considering the peculiar nature of the account from which the monies were paid,” Chiluba argues.
He submits that investigators proceeded on the premise that all monies in Zamtrop were government funds and picked selectively transactions from the account, without regard to the fact that the account also banked monies belonging to him from private sources.
“Zambia prides herself in upholding the old tenets of justice and surely this is one case where the prosecution, despite the number of witnesses called, has clearly failed to prove their case beyond reasonable doubt. The natural consequence of this failure is that the case against me be dismissed with costs,” Chiluba argues
[Zambia Daily Mail]
