President Rupiah Banda's government yesterday withdrew the
against former president Frederick Chiluba's acquittal.
Director of Public Prosecutions (DPP) Chalwe Mchenga in a Notice of Withdrawal
of Notice on Intention to Appeal stated "to the clerk of court whereas, Dr
Frederick Jacob Titus Chiluba, Faustin Mwenya Kabwe and Aaron Chungu were on the
17th day of August 2009 acquitted by the Subordinate Court of the First Class of
the following offences: 1. Dr Frederick Jacob Titus Chiluba, 6 counts on the
offence of theft by public servant contrary to Sections 272 and 277 of the Penal
Code Chapter 87 of the Laws of Zambia and 2. Faustin Mwenya Kabwe and Aaron
Chungu, three counts of theft contrary to Section 272 of the Penal Code Chapter
87 of the Laws of Zambia. And whereas on the 24th day of August 2009 a Notice of
Intention to Appeal against the said acquittals was purportedly lodged on my
behalf by a public prosecutor: Now these presents I, Chalwe Farai Ralph Mchenga
State Counsel DPP of the Republic of Zambia do hereby give notice of the
withdrawal of the said Notice of Intention to Appeal".
This comes barely
a day after President Banda fired Task Force
on Corruption chairman Max Nkole following his appeal against Ndola High
Court registrar Jones Chinyama's acquittal of Chiluba on all counts of
embezzling public funds amounting to US $500,000.
The state appealed
against Chiluba's acquittal on eight grounds following instructions by Nkole to
- Ground one stated that the learned
trial magistrate erred in law when he failed to convict the respondents of theft
having found as a matter of fact that the monies to procure Roma and Kabulonga
properties and in the case of the first respondent, to pay his children out of
the Zamtrop account could be traced back to the Ministry of Finance.
- Ground two stated that learned trial
magistrate erred in law when he failed to convict the respondents of receiving
or retaining any chattel, money, valuable security or other property whatsoever,
knowing or having reason to believe the same to have been feloniously stolen,
taken, extorted, obtained or disposed contrary to section 318 of the Penal Code,
Chapter 87 of the Laws under counts one through nine of the indictment having
found as a fact that monies from the Ministry of Finance were used to pay for
the Roma and Kabulonga properties and in the case of the first respondent, to
pay his children and having convicted the second and third respondents in the
court below under counts eleven and twelve, pursuant to section 188 of the
Criminal Procedure Code, Chapter 88 of the Laws of Zambia.
- Ground three stated that the learned
trial magistrate erred in law when he acquitted the respondents on the basis
that he was not convinced that the first respondent did not have monies in the
Zamtrop account in the face of evidence showing that the first respondent had no
monies in the Zamtrop account at the time the subject offences were alleged to
have been committed and in the absence of any evidence showing that the first
respondent had any monies in the Zamtrop account and having earlier determined
in his ruling at the case to answer stage that clearer evidence on the sources
of the allegedly private monies was required to be furnished.
- Ground four stated that the learned
trial magistrate erred in law when he held in effect that reimbursement of
monies stolen is a defence to a charge of theft.
- Ground five stated that the learned
trial magistrate erred in law when he held that an unsworn statement can be
relied upon by the court where there is no evidence contradicting it when the
law on an unsworn statement is that such a statement is not evidence and cannot
prove facts that are not otherwise proved by evidence.
- According to ground six, the learned
trial magistrate erred in law when he failed to find as a fact that private
monies cannot be kept in a government account and that where monies are
deposited in a government account same become government monies.
- On ground seven, the learned trial
magistrate erred in law when he purported to interpret constitutional provisions
in determining whether the first respondent was a public servant within the
meaning of section 277 of the Penal Code and in consequently holding that the
first respondent was not a public servant within the meaning of that
- According to the notice, further
grounds would be furnished upon perusal of the judgment.
International Zambia (TIZ) executive director Goodwell Lungu described the
development as extremely unfortunate.
"It's an extremely unfortunate
position the DPP has taken because according to High Court judge M S
Mwanamwambwa's judgment of June 5, 2008 -The People Vs Julius William Banda...
our position is that there is a precedent that was set by our courts of law,"
Lungu said. "It's unfortunate that the DPP has on a number of occasions involved
himself in many of these unfortunate drawbacks in the fight against corruption.
It's a very big drawback in the fight against corruption. This has the potential
of plunging the fight against corruption."
He said Zambians must rise and
start voicing strong resistance to some of these reversals.
as a country we stand to lose a lot of gains that we have recorded," Lungu
According to a judgment in The People Vs Julius William Banda,
delivered in favour of the DPP by judge Mwanamwambwa, the High Court ruled that:
"The primary rule of interpretation of statutes is that where the words of a
statute are clear, the meaning of a statute is to be found in the natural and
ordinary meaning of the words used: See Nzowa Vs. Able Construction Limited (1).
The language of Article 56 (4) of the Constitution and sections 87 and 321 (A) of the Criminal
Procedure Code are clear. Applying the plain meaning rule, I hold that Article
56 (4) and sections 87 and 321 (A) do not require the Director of Public
Prosecutions to issue a statutory instrument specifically authorizing a police
public prosecutor to lodge an appeal under section 321 (A). Just as much as a
police public prosecutor can institute and undertake criminal proceedings in the
subordinate court on behalf of the Director of Public Prosecutions, he can lodge
an appeal from such proceedings to the High Court, right away. I hold that the
delegated authority of a police public prosecutor under Article 56 (3) (4) and
(6), and section 87 of the criminal procedure code to institute and undertake
criminal proceedings on behalf of the Director of Public Prosecutions, extend to
lodging an appeal from an acquittal in the subordinate court to the High Court,
when the need arises to appeal. There is no need for a fresh mandate. The notion
of a statutory instrument suggested by Mr Jere cannot be read into Article 56
(4), section 87 and 321. Indeed, section 87 is specific that there is no need
for further written authority. This equally applies to a legal practitioner who
represents the Director of Public Prosecutions in criminal proceedings before
any court. And a legal practitioner is defined by section 3 of The
Interpretation and General Provisions Act, chapter 2 of the Zambian laws as: "a
person who has been admitted to practice as a Barrister and Solicitor under The Legal Practitioners Act and whose name is duly entered on
the Roll kept in pursuance of the provisions of the said Act."