Regina Chiluba’s Acquittal: Kafunda and the Prosecution’s Fiasco

Regina Chiluba’s Acquittal: Kafunda and the Prosecution’s Fiasco

By Elias Munshya wa Munshya

The Lusaka High Court’s ruling when acquitting Regina Chiluba from the charges she was convicted for is a very significant legal opinion. All Zambians both within the legal profession and outside it should read it and deeply reflect on it. What Justice Hamaundu mentioned in his judgment reflects seriously on the prosecution and indeed on the trial magistrate Charles Kafunda himself. One would wonder why the Zambian prosecution could get this matter so wrongly considering that since independence the Zambian prosecution has been charging criminals with the offences of “possessing stolen property” and “theft”. The fact that they failed to even follow routine legal procedure is just despicable to say the least.

First, as observed by the High Court’s panel of three judges, Regina Chiluba’s cases were not properly investigated. You wonder what the prosecution was rushing for. It is rather sad that they charged her with possession or failure to account for property suspected to be stolen property when no one had reported the said property stolen. The prosecution simply concluded that since the TV had the words state house embossed on it, it then belonged to State House. They also concluded that since it was bought on State House stationery that provided the prima facie case to charge Regina of possession. But in all this they had missed an important element in theft. One can only be guilty of theft if he has dishonestly appropriated property belonging to another with intention to deprive the other permanently of that property. In this case, no body claimed to have been the original owner of that property and most crucially on one from State House reported the television as stolen. On this point the prosecution failed terribly.

Second, the prosecution failed because they expected Regina Chiluba to give them a reasonable explanation about the properties. In accordance with the ground breaking case of Woolmington v DPP [1935], in criminal matters the burden of proof lies with the prosecution to prove their case beyond reasonable doubt. There is no expectation that the accused should proffer reasonable explanation about the offence she is accused of. There is no way that the prosecution should have reversed the burden of proof back to Mrs. Chiluba. She did not owe the prosecution or indeed the investigators any reasonable explanation at all. An accused person in criminal matters is not expected to volunteer information that may further incriminate them. The prosecution will have to provide their evidence beyond reasonable doubt. Rightly, as noted by Judge Hamaundu it is sad that one of the reasons why she was convicted was that she did not give reasonable explanations. She did not need to. The prosecution cannot hide their inefficiency under the cloud of the defendant’s inconsistent testimony.

Third, the High Court also observed that the investigators’ failure to interview Dr. Frederick Chiluba or even summon him as a witness to have been a very weak legal judgment. The prosecution alleged that Regina got stolen money and a television set from Dr. Frederick Chiluba. But they did not interview this Chiluba, and neither did they charge him with stealing those very properties. It is not that, Chiluba was outside their jurisdiction. It is not even that Chiluba refused to cooperate with them. They just decided to ignore him. And seriously, the consequence of that ignoring has come to haunt the prosecution. This was badly prepared case and it failed from the moment that they charged Regina with receiving stolen property. The prosecution should have known better. The offence of theft and possession or handling of stolen goods is perhaps the most common offence before our magistrate courts today. The prosecution has been handling these cases since independence. How did they fail to cover that loophole?

Fourth, Magistrate Charles Kafunda is seriously indicted in the High Court’s opinion as well. The High Court ruled that there was no prima facie case in the first place, against Regina and as such she did not even need to be put on defence. We could have given Kafunda a benefit of doubt if at all the High Court’s acquittal was simply based on a legal technicality. But here there is no legal technicality. The High Court is clear; there was no need to proceed in the first place. Undoubtedly, Kafunda could have saved himself this legal embarrassment. If Kafunda had any doubt in his mind about the prosecution’s case that should have worked to the accused’s favour. But the question still remains, why did Magistrate Kafunda go on to put Regina on defence and in fact go ahead to convict her, when the prosecution’s case was so weak?

On the acquittal there are those who feel that the invisible hands of the State may have played a part in the acquittal of Regina Chiluba. But with a case so blatantly inadequate there can only be one conclusion: Regina Chiluba was acquitted because she was innocent of those charges right from the start. But for now the learned judge Magistrate Kafunda will have to do a little bit more growing in his legal skills.

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