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!