Monthly Archives: August 2010

The London High Court Judgment:Separating Myth from Reality

By Elias Munshya wa Munshya

Myth1: Judge Hamaundu’s Verdict Reversed the London Judgment

Reality: Judge Hamaundu’s verdict did not deal with the substantive issues of whether Chiluba was liable or not, or whether Judge Peter Smith was right or not. Instead, all Judge Hamaundu ruled on was on whether the Government could serve Chiluba with the London High Court papers so that he recompenses Government for what Judge Smith said was Chiluba’s liability. Judge Hamaundu ruled that the law Government relied on in its application to register the London judgement was insufficient. However, Hamaundu stated, that the Government could have relied on common law, but that was not his responsibility to tell them how they should have sought to register this judgment. The courts cannot make up for the legal recklessness of a party to a lawsuit.

Myth2: After Judge Hamaundu’s ruling theLondon High Court ruling loses its effect

Reality: As a ruling which was obtained in the jurisdiction of England and Wales, the London High Court is still an effective ruling,unless it is appealed or overruled by the higher courts of England. The Government of Zambia can still serve it on Chiluba within England or European jurisdictions.The question, therefore, should be how much of the verdict has actually been effected within its own jurisdiction? The Zambian government cannot make up in Lusaka what it has failed to do in London.

Myth3: The London High Court judgement was supposed to be recognised by Zambian courtsbased on international laws

Reality: There is nothing in international law that obligates a sovereign jurisdiction to recognise or effect judgements from another sovereign jurisdiction. International law is not a set of laws that nations mandatorily abide by; rather it is a complex mix of conventions and agreements that nations agree to voluntarily. But the London High Court ruling is not part of international law unless there is an Agreement of Legal Reciprocity between the jurisdiction of England and Zambia. From the look of things, there is no legal framework for the reciprocation of judgements between England and Zambia. And that is the reason why after Shansonga ran away from Zambia’s legal jurisdiction to England, the Zambian police could not even attempt to ask England to extradite Shansonga! Similarly, in the case of contempt involving the Post Newspapers and Fred Membe, one of the co-accused Sam Mujuda could not be served with court papers from the Zambian magistrate courts because he was outside its jurisdiction in England. When Professor Muna Ndulo faced the same “Comedy of Errors” predicament, he was quick to answer that the Zambian magistrate court could not reach him in the comfort of the United States of America!

On the other hand there are some courts, on the principle of jurisdictional sovereignty and equality, which the international communities have set up such as the International Courts of Justice (ICJ) and the International Criminal Court (ICC). All these courts are specialised courts that deal with particular issues in matters of its members or those that havesigned their constitutive acts. Similarly, the International Criminal Tribunal is a specialised international court that tries cases of crimes against humanity and genocide. It should be noted that the London High Court is not an international court in the fashion that the ICJ or the ICC is.

Myth4: The London High Court is superior to the Lusaka High Court

Reality: This is unfortunately believed by some very well-meaning people. The Zambian court systems are not subservient to the English Courts. Both English and Zambian courts are sovereign courts in their own rights, and are effective within their own jurisdiction. The Zambian High Court is not obliged to follow or obey London and neither is London obliged to follow Lusaka. However,the legal judgments and opinions are of persuasive value to each jurisdiction.

Myth5: Zambian should follow English Judgments because it is a Commonwealth country which follows Common Law

Reality: Yes, Zambia as well many other countries such as Canada, Australia, New Zealand, Nigeria and the United States of America, are known as Common Law jurisdictions. These common law systems differ from Civil Law systems such as France, Germany and Quebec or hybrid systems such as Scotland, Israel, and South Africa. Common Law systems are so called because their foundation of law is based upon the English Legal Systems, and as such much of their legal philosophy is based upon the legal foundations of England and Wales. Major cornerstones of the common law system are that it is mainly based on tradition, judicial precedence, and common law judgements. However, following a common law legal system is not synonymous with being subservient to English High Court or the Supreme Court of England and Wales. In fact, even if all these countries follow the Common Law system they differ with each other on several substantive laws. Being a common law country does not mean that the current English judgments set a precedence for all the other jurisdictions to follow. In other words, London High Court or Supreme Court of England and Wales(formerly the House of Lords) do not make laws or make judgements for everybody else apart from themselves and their jurisdictions.

Myth6: Judge Peter Smith ruled that Chiluba was a thief

Reality: Ruling that someone is a thief, in its legal sense, is the responsibility of a criminal court. Of course, in informal ways people label any one they want as a thief, but that does not make a thief before the law. Judge Peter Smith only ruled on a civil case in which he held that Chiluba was liable to repay the Zambian government monies which the Judge felt Chiluba had either misappropriated or misused. There is a distinction between a civil case and a criminal case. A civil case is one in which one part sues the other party for compensation over civil liability. This may happen usually between private individuals or companies. As an example, a civil case is usually brought to have the respondent pay compensation to the plaintiff. On the other hand a criminal case is brought by the State or in the case of England by the Crown, against an accused or a defendant who is charged by the prosecution with a crime, such theft, murder, treason,and contempt of court. Theft is a crime and as such, only the prosecution (that is the Crown or the State) can bring a matter against the accused. In London,the Zambian government could not have instituted a criminal case against Chiluba unless the Crown so decided.

The Zambian government on the other hand, decided to charge Chiluba with a crime of theft in the Zambian court system. In a criminal case, it is the responsibility of the prosecution to prove to the court beyond all reasonable doubt that the accused committed the crime he is charged with. Ina civil case it is incumbent upon the plaintiff to prove on a balance of probabilities that the respondent wronged him or broke the contract as the case may be. When Chiluba was charged with theft in the Zambian courts, it was incumbent upon the Zambian prosecution to prove beyond all reasonable doubt that Chiluba had stolen. For the accused to be guilty of theft the prosecution must prove several elements, first it must be proved that the accused appropriated property, second that property belonged to another, third that the accused had the intention to permanently deprive the other of the property, and fourthly that the accused was dishonest. The prosecution in the case of Chiluba needed to prove all these elements for Chiluba to be convicted. On the other hand if the accused convinces the court that just one of these elements is not true then he cannot be convicted of theft. That is exactly what Chiluba and his lawyers did in the criminal case here in Zambia. All they argued was that the money Chiluba was accused of appropriating was indeed his money which he put in the ZAMTROP account. To support this evidence they collected the Zambian Supreme Court’s judgment in the presidential petition between Mazoka and others v. Levy Mwanawasa. That evidence was enough to create doubt in the Court’s mind, as such Chiluba was acquitted.

Myth7: The Zambian Courts had the Responsibility to Jail Chiluba

Reality: The Courts can only jail a person who is guilty of a criminal offense. As stated above, before the courts try a case, it is up to the State to make their minds on which offense they will charge the accused.In the case of Chiluba of all the charges they could have brought against him the State chose to bring the charge of theft. Now theft in complex matters such as Chiluba’s case was going to be difficult to prosecute because of the many elements the prosecution needed to prove. All Chiluba needed was clever lawyers that would discredit the prosecution’s case on just any of the many elements. The reason why the Mwanawasa government decided to go for the theft charge is still a mystery when they could have pursued other charges which had some chance of success. The charge with the most success could have been the charge of the abuse of the authority of office, under the Anti-Corruption Commission Act. In fact,most of Chiluba’s compatriots have been convicted under this Act, but in the Zambian prosecution’s sovereign decision they went for theft. And what Magistrate Chinyama ruled on, was great embarrassment to the Zambian clever prosecutors. The courts cannot make up for the inefficiency of the prosecution. If the State decides to charge Chiluba with theft and they fail to prove theft, the courts cannot make up for the State’s foolishness. Please leave Chiluba alone, he is not sorely responsible for this legal mess we all are!



Judicial Colonialism: Why the London Judgment was Doomed Right from the Start

By Elias Munshya wa Munshya

Zambians were told that the reasons why the Attorney General Hon George Kunda, SC sued Chiluba in London were to reach him where the Zambian courts could not reach. Kunda and Mwanawasa alleged that Chiluba had stashed millions of dollars outside the Zambian court’s jurisdiction. And for the government to confiscate those millions they needed to use a European Court; and England was their natural choice. They told us that once they obtain the judgment in England, it would be enforceable in the whole of Europe and as such, they would bring back Chiluba’s stolen millions from Belgium, France and Switzerland. That sounded like a very good plan.

Another reason they went to London, we were told, was that the Zambian government was not confident of getting back the money if they had used the Zambian courts. They had both jurisdictional and competency problems with the Zambian courts. They averred that Chiluba’s matrix of plunder would be too complicated for an average Zambian judge to comprehend or even handle. That was the reason why they had to look to England and not Kitwe or Chipata High Courts.

And indeed they got that judgment. Honourable Mr. Justice Peter Smith of the London High Court gave his famous legal ruling. He crafted it in the most arduous language you can ever find in a legal document. Anxious to put himself in the annals of history, he found Chiluba liable to pay back the government of Zambia millions of dollars that he had stolen. The Honourable Smith in his judgement even mentioned that the suits and the underwear Chiluba had purchased were all acquired from public funds.

The question of how far that judgement actually has helped Zambia to get those millions from its jurisdiction in England and Europe still remains unanswered. How much money has actually been collected in Europe from Chiluba’s fat accounts in Switzerland and Luxembourg?

But the confusing thing is that after the London judgment, the Zambian government altered the story. This was either they could not get the millions in those accounts as they had alleged or there were no such monies in those jurisdictions in the first place. Suddenly, instead of using the London judgment to obtain Chiluba’s stolen millions in Europe, they now felt it was prudent to use the same London judgement to come and get Chiluba’s millions in Kabulonga. But in order to do so, the reverse of why they went to London must be done. They went to London to obtain a judgement to use in Europe, but now they needed a judgement in Lusaka to use against Chiluba in Kabulonga. And in their legal recklessness, they felt that instead of commencing new civil proceedings in Lusaka or Chipata, they advised themselves to use the same judgment from London—only that this time around they would look to direct legislation to enforce it. But in order to do so, for want of jurisdiction, they had to have the Lusaka High Court rubber stamp the London judgement.

But rubber stamping is exactly what the Lusaka High Court has refused to do. Even a grade 4 boy can tell you that what happens in one home cannot be transferred and effected in another house. Courts do not generally like the idea of being trampled over by another court from another jurisdiction. This is so especially in the post-colonial court system where former colonies are trying to assert their judicial, jurisdictional and legal independence from their colonial masters.

Essentially then what the government was trying to do was to register a judgment and give it legal effect by using the same courts that they had despised in the first place. Consequently, the Zambian High Court would not tolerate such judicial colonialism because the Lusaka High Court is not and will not be a department of the London or the European Courts, especially in civil matters.

By so asserting, Mr. Justice Hamaundu has demonstrated the fact that we would rather have injustice done by ourselves, than justice served from London. Injustice in Lusaka is rather by far more preferable than justice served from the doorsteps and the gravel of Mr. Justice Peter Smith. The London judgement was alright in so far as it was obtained to take the money that Chiluba had taken to Europe. But beyond that, it had the potential of being a tool of juridical colonization. If the Zambian government was serious about getting Chiluba’s millions in Zambia they should have commenced legal proceedings in the Zambian court system. They should have trusted the Zambian courts to come up with a fair judgment. But if they mistrusted our courts and insulted our courts and poured contempt on our learned judges why should they now turn around to try and get the same courts to recognise an imperial judgement from London? There is one old rule that says that you cannot have your own cake and eat it too. In other words, “Cimbwi afwile intaangalale”.

Someone may argue that the courts are very much influenced by politicians, and this judgment is simply because it is not Mwanawasa in power. Well that explains the very reason why the corruption fight has ended so miserably—it is because it was Mwanawasa’s and his alone. As such, Mwanawasa lost this fight the day he decided to go to London to have justice done on Chiluba who lives in Kabulonga. Here is the lesson, if you want to get money from Chiluba, which you tell us he has stolen, please do not go to London. Instead go to him in Kabulonga and get it, or rather go to the Lusaka High Court or the Chipata High Court and commence proceedings from there. But unless you are sure about the proverbial Swiss Bank Accounts, please do not go to London!

Naomi’s Knock at the Door

And so Naomi Campbell has finally testified in Charles Taylor’s trial at the Hague. Crucial to the prosecution’s case is to link Taylor with raw blood diamonds that he commandeered as head of the State of Liberia and leader of a rebel cause in the neighboring Sierra Leone. The prosecution are alleging that Naomi was given raw uncut and unprocessed diamonds by Taylor. These diamonds were illegally or criminally acquired by Taylor. Taylor used his militia to commit crimes against humanity to extract diamonds from both Liberia and Sierra Leone.

And so Naomi says that she had never heard of Liberia and had never heard of Charles Taylor and she did not know who he was, at least prior to her meeting him in South Africa. This does not make sense to me. And then to make it even worse, she says that two men she had never met knocked on her door one night while in South Africa and gave her a pouch of some dirty looking stones, which she donated over to Nelson Mandela’s charity. This too does not seem to make sense at all. It is either she is lying or she’s deliberately trying to hide something.

So could someone tell me? How could a super model, of international stature, miss ever hearing of a country known as Liberia until 1997 when she is 40 years old or 30 years old? So she never read the news, never heard the news, and probably never had a client who could possibly have mentioned Africa or Liberia. This does not make sense to me. It it is true then I will have serious issues with her British secondary school education. Didn’t they show her a Map of the World?

And then when it comes to two strange men appearing on her door and delivering dirty stones, I find this story to be quite saucy to say the least. What is even dodgy is the time these people appeared-at midnight. So there is the international super model, she’s just had lunch or supper with the world’s famous people–Charles Taylor and Nelson Mandela among them. And then she retires all by herself to sleep and then suddenly in the early hours of the night or the morning, two strangers appear on her hotel room door, hand her a pouch and off they left. She does not care to check what was contained in the pouch, but goes back to sleep, and then the next morning she checks the pouch and voila, there are some purple dirty looking stones. To believe this story we will have to really believe that the life of super model is one miserable life almost reminiscent of a mob. Strange men, giving strange gifts to people they have never known or met.

What about if she just admits that it was His Excellency himself, who donated some of his personal raw diamonds to her. We do not need to know why Taylor could have been overtaken by such an act of benevolence. He may just have donated something to her out of love or out of a desire to help a fellow Black person. At that level Naomi would be able to convince me that Taylor’s act of kindness was simply an act of trying to help a sister out. To help her fulfill her fantasies for real raw good stuff and diamonds are that kind of thing!

At least in this case it is not she, who is in the dock. She was just called to testify. In the Zambian case of the People Vs Chiluba, Mrs Regina Chiluba was actually convicted by a court of law for accepting a gift from Mr. Frederick Chiluba. Mr. Chiluba gave Regina a Television Set which the State proved had been stolen by Mr. Chiluba. But instead of arresting President Chiluba for it, they instead arrested his wife. Naomi Campbell should actually thank God that instead of getting arrested for possession of these raw diamonds, she is only been called to testify not as an accused, but as a witness.

Give me some raw diamonds Ms Campbell, I love them too. But wait a bit do it somewhere else and not in Zambia!

Blogger Buzz: Blogger integrates with Amazon Associates

Blogger Buzz: Blogger integrates with Amazon Associates