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 2009-08-28 02:56 pm Back to NEWS
DPP’s appeal action faces court review

LUSAKA lawyer Wynter Kabimba has notified Director of Public Prosecutions (DPP) Chalwe Mchenga of his intention to commence judicial review proceedings to have the decision to withdraw the state's appeal against Frederick Chiluba's acquittal reviewed by the High Court. And the Council of Churches in Zambia (CCZ) has demanded that the state should let the judiciary, up to the Supreme Court, if necessary, determine and confirm Chiluba's innocence, if indeed he is innocent. 

In a letter to Mchenga dated August 27, 2009, Kabimba stated that he had instructions from interested citizens to commence judicial review proceedings against Mchenga's unreasonable decision on the matter.

"Re: The People Vs. Frederick T.J Chiluba and Others. We refer to the above quoted matter and in particular your notice of withdrawal of the notice of intention to appeal dated 26th instant in respect of the same," Kabimba stated. "We have been instructed by some interested citizens to commence judicial review proceedings to have your decision reviewed by the High Court on the grounds that the same constituted an error of law and was also unreasonable. We shall serve upon you the relevant court process as soon as the same has been filed."

And CCZ general secretary Reverend Suzanne Matale stated that the council was concerned at the way Chiluba's issue had been handled by the state.

"We are totally confused and taken aback about the withdrawal of the appeal. The concern emanates from the fact that the grounds for appeal as tabulated are overwhelming and it is our view that the appeal should be allowed, the due process of the law without interference from the state. We, therefore call upon the state who are prosecuting the case on behalf of the Zambian people to let the due process of the law go all the way to its logical conclusion through the legal systems," Rev Matale stated. "If indeed Mr. Chiluba is innocent, let the judiciary up to the Supreme Court, if necessary, have its own independence in determining and confirming Mr. Chiluba's innocence. Otherwise, we will have no choice but to conclude that the state has seriously interfered with this case and it will not be fair on the Zambian people to be treated like ignorant people.

"In addition, all other cases that are still pending and are related to the fraud, plunder and theft of the Zambian wealth must all be prosecuted and all people involved be brought to book for justice must be seen to be done." 

Earlier in an interview, Kabimba said Chiluba would be treated as a fugitive of justice. He said whoever had stopped the appeal was an enemy of Zambians in terms of justice.

"For as long as that matter remained unappeallable, Chiluba will be treated as a fugitive of justice because the due process of the law has not been conclusively outlined to determine the case. So he is a fugitive of justice. But whoever has stopped the appeal is an enemy of the people of Zambia," Kabimba said.

He said the recent developments were a clear testimony that the late Levy Mwanawasa's legacy was completely lost.

"It will be a shame for anybody in MMD today or tomorrow to preach that they are upholding Levy's legacy. All the donor money that has been put into the Task Force for the last seven, eight ten years has gone into the drain," Kabimba said. "But that is not how you use money, which is not yours...this kind of contempt towards other people's resources by a government which acts in a manner that is not accountable to the people should be a good lesson to the donors themselves."

Kabimba said donors should apply pressure so that the due process of the law should be concluded.

"Why should it be okay for Regina Chiluba to appeal and it's not okay for the people of Zambia to appeal before the same court with matters arising from the same circumstances? The DPP owes the people of Zambia an explanation, has he withdrawn the appeal because the appeal has no merit? I doubt it! Has he withdrawn the appeal because the government has leaned on him? My answer is yes," Kabimba said. "If you occupy a public office, a constitutional office in the position of DPP, Attorney General, Solicitor General and you can't serve the people of Zambia, leave that office. The most honourable thing to do is to leave that office so that the people of Zambia can find men and women of honour to serve them."

Kabimba said Zambians should not allow this kind of nonsense to continue.

"This is nonsense! I don't think that Zambians should fold their hands and see themselves being abused by a government, which they purportedly elected. This type of impunity can only take them so far...we have cases in history where leaders have acted with impunity and in a manner where they were not accountable to their own people and the people one day said enough is enough," Kabimba said. "And I am sure the time will come when the people of Zambia will say enough is enough because we have put in place a government that is no longer serving our interests but serving Dr Chiluba's interests."

Kabimba warned that President Banda's time to be answerable to these matters would come.

"The good thing about political office is that once you get in, the next point is to get out. Mr Banda is there today, tomorrow he will not be there. I am a student of history myself and I have learnt that the most foolish students of history are politicians because we don't want to learn from what is obvious," Kabimba said. "Why shouldn't you learn from foolish leaders like [former Yugoslav president Slobadan] Milosevic, [Germany's Adolf] Hitler...why do you want to fall in that pit in order to learn? This government is joining the lineage of foolish leaders that we have seen in the world."

Kabimba said justice could not be buried forever.

"So for the Zambian leadership, Mr Rupiah and his accolades they must be reminded that justice is not about how they feel. It's about the demands of the Zambian people. They will be on the other side one day and they will see the importance of having an impartial system of justice. You can't bury justice forever," said Kabimba.

On Wednesday, President Banda's government withdrew the state's appeal against Chiluba's acquittal.

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 came 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.

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