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
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
"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,"
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public prosecutor, Mutembo Nchito was withdrawn because it was filed against his
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.
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
He said on the same, day he instructed Mr Nkole not to file the
appeal until such time that he had reviewed the judgment.
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
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
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.