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 2009-08-28 03:59 pm Back to NEWS
Why State won’t appeal in FJT acquittal

Director of Public Prosecutions (DPP, Chalwe Mchenga has said the State will not challenge the acquittal of former President Frederick Chiluba because the appeal is unlikely to be successful.

Mr Mchenga said in Lusaka yesterday that evidence before court shows that the Zamtrop account from which Dr Chiluba was alleged to have stolen about $500,000 received money from sources other than the Government.

"An appeal should only be made when there is a likelihood of it succeeding. Appealing because of concerns of members of the public without regard to the likelihood of success is actually an abuse of the judicial process," Mr Mchenga said.

Mr Mchenga said there was evidence before court that money in excess of US$8.5 million was paid into the Zamtrop account from other sources and Dr Chiluba made a statement that some money had been placed into the account on his behalf.

He said from the evidence before court, it was not clear whether the money the accused persons were alleged to have stolen came from the Government or other sources.

"To resolve the difficulty, the court relied on the well established principle of criminal law that where two or more inferences can be drawn from a set of facts, the court must adopt one which is more favourable to an accused person if there is nothing to exclude such an inference," Mr Mchenga said.

He said the inference favourable to Dr Chiluba in this case was that the money drawn was that which had come from private sources.

"This being the case, the court had no option but to acquit him because the money he had drawn was not public money," he said.

Mr Mchenga said the notice of appeal filed on August 24, 2009 by public prosecutor, Mutembo Nchito was withdrawn because it was filed against his instructions.

He said section 86(3) of the Criminal Procedure Code provides that every public prosecutor shall be subject to the express directions of the DPP and the decision by the then Task Force executive chairperson, Maxwell Nkole to instruct Mr Nchito to file the appeal was illegal.

He said it came to his attention on August 21, 2009 that Mr Nkole had instructed Mr Nchito to appeal because it had raised "great concern from various sectors of society."

He said on the same, day he instructed Mr Nkole not to file the appeal until such time that he had reviewed the judgment.

"But contrary to my instructions, the notice of appeal was lodged. The reasons for rushing to file the notice are unclear because section 321A(1) of the Criminal Procedure Code gives the DPP 14 days within which to appeal where he is not satisfied with a judgment," he said.

Mr Mchenga said while public concern could be a basis for instituting criminal investigations, it cannot be the basis for instituting a criminal prosecution or appealing against an acquittal.

Meanwhile, acting Task force executive chairperson, Godfrey Kayukwa has said a decision on whether to take up other cases involving former President Fredrick Chiluba will only be made after studying the matters.

Mr Kayukwa said in an interview that he needed to study the issues before deciding whether to prosecute Dr Chiluba in other transactions like the privatisation of Zambia Consolidated Copper Mines (ZCCM), the Carlington maize deal and the arms deal.

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