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!