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 2009-08-27 05:38 pm Back to NEWS
Rupiah stops appeal -- (Post Newspapers Version)

President Rupiah Banda's government yesterday withdrew the state's appeal 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 do so.

  • 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 section.
  • According to the notice, further grounds would be furnished upon perusal of the judgment.

But Transparency 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.

"Otherwise, as a country we stand to lose a lot of gains that we have recorded," Lungu said.

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."



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