EXCUTIVE SUMMARY The West attempted to justify aid and debts given to Africa over the years but couldn’t. That despite the aid, Africa remained desperately poor was a source of great embarrassment. The West blamed African leaders for the sad scenario and accused them of being corrupt and holding a penchant for wars and conflicts. An elaborate scheme was hatched and carried out in Zambia, Malawi and Kenya. The three countries were targeted as limited terms of office were coming to an end and the new leaders could be manipulated. In Kenya, they had John Githongo, Head of Transparency International. Githongo joined Kibaki’s government and came up with charges accusing the Former President of embezzling USD600m. The media nicknamed him ‘the Anti-Corruption Tsar’.
But their efforts to arrest Moi failed when Mwai Kibaki refused to do so citing peace and security and national interest. Kibaki refused to yield to foreign demands. Githongo ran away to the United Kingdom in a self imposed exile. He issued numerous statements and a ‘dossier’ accusing Kibaki’s government of grand corruption of USD200-USD700m. In Malawi, Bakili Muluzi learnt from Zambia. He refused to relinquish his party position to Mbingu Wa Mutharika. Mutharika accused him of stealing USD11 million from the public purse. However, Muluzi used his position as leader of the United Democratic Front (UDF) to thwart his successor’s attempt to arrest him. Bakili still enjoys wide political support in Malawi especially the southern part. Bakili used his MPs in Parliament to frustrate government budgets and its programs. After announcing that he will be the main challenger of Wa Mutharika, the Ant-corruption Bureau has charged him with fresh offences and there are attempts to stop him from contesting the elections due in April 2009. Zambia however appears to have been ‘a successful story’ for the Donors. The European Union (EU), led by Britain, went into a pact and reproduced, with Mwanawasa and provided huge funds to ensure that there was a successful prosecution against Former President, Frederick Chiluba and his former associates. Mwanawasa set up the Task Force on Corruption. This unit was specifically set up to achieve the cause of jailing Chiluba and his associates. It was led by a charismatic but shady character in Mark Chona and his collegues which included lawyers and newspapereditors. The team hounded out of office a constitutionally mandated DPP, Mukelebai Mukelebai. Mukelebai later died in mysterious circumstances in his room at the Institute of Security Studies in South Africa. The role of donors was so blatant and most times inimical to the interest of justice and the rule of law. In their MOU with Mwanawasa they designed a process that helped handpick magistrates for the cases to ensure ‘successful prosecution’. So were the judgements achieved so far in the magistrate’s court fair or bought? Mwanawasa also seem to have been held captive by the trio. Letters written by the team to Mwanawasa show a grim picture as he was constantly blackmailed and made to do their bidding. After procuring convictions, donors hold Zambia as a success story in the so called fight against corruption. But was it? At what expense and what cost was this foreign agenda achieved? Why was the law broken to correct a wrong? Why illegality was used to fight illegality? Why did those that came to equity fail to come with clean hands? What is the damage to the fabric of the nation? This is a matter and subject of this document. BACKGROUND The play was written, the stage was set and all that was needed were actors to fill up the roles. Africa in the view of Western world had something troubling. Despite the huge loans of over USD300billion lent to it over the years, and aid of over USD1trillion, it remained desperately poor. It was becoming increasingly and blatantly immoral that Africa was spending over USD13.5billion every year repaying debts to rich foreign creditors. Debt relief initiatives were not making any noticeable change. The Brentwood Institutions: The World Bank and International Monetary Fund (IMF) were appearing to be more extortionists than agents of development and change. And angry calls for total cancellation of the entire debt stock that most poor countries owed were growing amongst their own people in western capitals. It was clear that the West had perpetuated a global economic system that exploited Africa’s wealth, impoverished it and left it laden with an unsustainable debt. For example, Sub-Saharan debt stock alone stood at USD236billion. It was ironical that despite centuries of exploiting its human and natural resources, Africa couldn’t learn from its own history. Western governments yet again, yoked Africa to a new form of slavery which was in form of a debt burden rapidly accumulated in only about 30years. The West was demanding literally a pound flesh in un-ending debt repayments. Besides its extreme poverty and civil wars, Africa, was now even failing to fight the new pandemic of HIV/AIDS. Africa could not embark on any form of sustainable development and the debt burden was the primary cause. Clearly this new form of slavery was becoming apparent and the West was unmasked. To continue to demand repayments under the emerging circumstances was even in their own eyes callous. So a strange resolve was reached. Africa could be helped. A few countries were selected and admitted to a debt cancellation initiative: The program was the Highly Indebted Poor Country Initiative (HIPC) promoted by the Brentwood Institutions. But Africans, in their view were still to blame for the sad scenario. Their leaders were CORRUPT! And their leaders had insatiable appetite for un-ending civil wars. For purposes of this discourse, we exclude the pursuit of impunity for the wars in countries identified Sierra Leone, Cote d’ Voire, Liberia, Congo, Sudan and Somalia. COUNTRIES IDENTIFIED After the dawn of Democracy, numerous programs had succeeded in removing corruption from public institutions and procurements processes for roads and other large infrastructure projects. But grand corruption, in their view, hid in areas of national security and extractive industries. Angola, Nigeria, Democratic republic of Congo and South Africa were deemed as examples. Zambia, Kenya and Malawi were handpicked as similar examples. But the geo-politics surrounding Angola, couldn’t allow them to launch the desired attack. Angola like Nigeria had huge reservoirs of oil and had to be treated with kid gloves. And the corruption in these countries implicated western companies. For South Africa, every large western company registered a huge presence in that economy. And the corruption began and ended at their door steps. They could prove an embarrassing proposition. So Zambia Kenya and Malawi appeared ease prospects. And the countries were going to the polls. A new crop of leaders could emerge. Frederick Chiluba of Zambia was leaving office in December 2001, Daniel Moi was leaving in March 2002 and Bakili Muluzi was leaving later in the year 2004. The actors were being identified. Elections in Africa are a fractious affair. Leaders that emerge are in an extremely weak position. Their legitimacy is questioned, their people could revolt, and peace and public order might break down. So the best time to dangle a carrot is immediately after national elections. ZAMBIA The scenario was similar in Zambia, Kenya and Malawi. Arrest a former head of state and other high profile persons and show Africa that ’impunity will no longer be accepted. Frederick Chiluba was leaving office in December 2001. In 1991, popular trade union leader, Chiluba defeated Kenneth Kaunda and UNIP, when the party he led, the Movement for Multi-Party Democracy (MMD) fought for the re-introduction of multi-party politics and won the subsequent elections in October of that year. Kaunda had been in power for over 27 years. Although a hero of Zambia’s independence, his party United Nations Independent Party (UNIP) had lost popularity over the years. The country was faced with serious shortages of essential commodities and school and hospital facilities had collapsed. Roads and other infrastructure had suffered years of neglect and had fallen into disrepair. The economy was at its knees. The MMD accused Kaunda of corruption and promoting failed economic policies. The MMD’s candidate Chiluba easily beat Kaunda. It took power with a resounding majority of 125-25 seats in Parliament. Chiluba went on to serve 10 years and retired after expiry of two constitutional terms. His loyalist attempted to push for a third term, but was fought tenaciously by his opponents and he reneged. CHILUBA IS TARGETED IN 1996, donors demanded that government could no longer delay the sale of the mines in its on-going privatisation program. Western companies were already lined up to pick the jewel. However Chiluba’s government refused to sell divisions of ZCCM as a single unit. It broke up some divisions and assets of ZCCM. Chiluba justified this on the basis that a public monopoly, despite its failings, was a decent undertaking than a private monopoly ‘which has no human face’ to dominate the sector. Government appointed Francis Kaunda to head a GRZ ZCCM Privatisation Negotiating Team. In order to execute coordinate the efficient execution of the privatisation of ZCCM assets. The western companies ganged up and formed a consortium called Kafue Consortium. Although the consortium picked a popular local name ‘Kafue’, there was nothing local or Zambian about the Kafue Consortium. The consortium comprised Commonwealth Development Corporation (CDC) – a UK parastatal, Phelps Dodge Corporation of USA, Noranda Inc of Canada and Avmin Ltd of South Africa. The Consortium targeted Nkana, Nchanga and Konkola divisions, which represented more than 70% of Zambia’s copper production capacity. It targeted the Chambishi cobalt Plant too. The consortium offered cash payment of USD131million for the assets and a pledge to invest a 5 years, capital injection of USD1billion meant to improve production and efficiency. However, the devil was in the detail. The consortium sought to retain other ZCCM non-core assets. It wanted to keep; Ndola Lime, ZCCM Port facilities in Dar-es-Salaam, Tanzania, mine schools, mine hospitals, and townships and all their housing units. Further, the Consortium demanded years of broad tax exemptions and cheaper rates on electricity and water. During this period of protracted negotiations, a whole range of diplomatic and propaganda schemes were unleashed. Donors bemoaned the loss per day to Zambia of USD1million, lost in keeping mining production. The cited loss of revenue was never supported by any audit. They demanded quick and decisive negotiations that would save the country money being lost in keeping the mines afloat. The Post ran several sensational stories quoting donors and mine experts such as Chiluba’s own Deputy Minister of Mines, Dr. Matthias Mpande, and deriding Chiluba for ‘unnecessary delay to dispose- off the mines.’ Britain offered Zambia immediate grants of up to USD87million if the mines were sold to the Kafue Consortium. To keep the pressure against Chiluba’s government during this period, donors even refused to release any of USD530million balance of payment support, pledged by the Paris Consultative Group Meeting (CG) for Zambia, demanding that this would only be done ‘’when the mining assets of Nkana and Nchanga divisions were firmly in private hands.’’ CHILUBA CROSSES ‘THE RUBICON’ After a 15 month period of long and protracted negotiations, government ‘dared’ to call off the negotiations with Kafue Consortium. Negotiating leader, Francis Kaunda issued a statement lamenting that the consortium had come to the negotiation table ‘’in bad faith with dictatorial terms that were unacceptable.’’. President Chiluba was more blunt, ‘’we will not sell the mines for a song. ZCCM is Zambia and Zambia is ZCCM’’. The sale he stated was not commercially sound. Chiluba appeared to have crossed his swords with ‘the mighty forces’ of the West. (When charges were raised against former President Chiluba, Francis Kaunda was among Chiluba’s former officials that was charged with a non-descript offence and was quickly jailed. He is currently out on bail and is processing an appeal in the Lusaka High court). Although Nkana, Nchanga and Konkola were finally sold in 1999, to Anglo-America who held pre-emptive rights, the donors were not happy with Chiluba’s ‘arrogance’. The mine was sold to Anglo for USD72million and pledged investments of USD800million. In 2002, just when copper prices were beginning to improve, Anglo pulled out Zambia’s mining business. Government later sold the units were sold to Vedanta Resources for a paltry amount of USD25million. Vedanta is owned by Indian Billionaire, Anil Agarwal whose projects in India and elsewhere are mired in controversy and local unrest for their unsafe mining operations. After the failed bid of Kafue Consortium, Chiluba’s government became a target of a catalogue of sensational allegations of grand corruption, assassinations and human rights abuses. This is the man donors were singing praise about just a few years before! Donors funded to the hilt, Governance NGOs and which took turns to mount critical campaigns against Chiluba’s government. The attempts by Chiluba’s loyalist to urge him to amend the constitution and go for a third-term was fought so viciously that the whole affair ended up with half his cabinet and members of the MMD walking out or expelled from government and the party. In May 2001, a few months from a new election, Chiluba announced that he would not pursue a third term and instead the Party would look for a Presidential Candidate whilst he remained as Party President. THE ‘EVIL’ PROGRAM IS ROLLED OUT Mwanawasa was handpicked by Chiluba and later won the election in a closely contested race fending off Anderson Mazoka of the United Party for National development (UPND). Levy Patrick Mwanawasa had served as Kaunda’s Solicitor General and Chiluba’s Vice-President. He left the MMD in 1993 and did not recontest his parliamentary seat in 1996. He challenged Chiluba for the party presidency in 1996, but was beaten miserably. Thereafter, he became a private citizen until Chiluba picked him, supported him and promoted him as MMD Presidential Candidate in the 2001 Presidential and General Elections. The elections were hotly disputed. Mazoka and 2 other candidates immediately rejected the results and went to court to demand for the nullification of Mwanawasa’s win. A key witness in the election petition was European Union (EU) Observer Mission leader! In the aftermath of the elections the EU rejected the ‘integrity’ of the Mwanawasa election. EU Observer Mission’s local partners such as NGOCC, Coalition 2000, and Christian Council of Zambia were more speculative denouncing the elections as characterised by fraud and ballot tampering. Mwanawasa was assuming the Presidency without legitimacy. He issued a statement; ‘’I extend my hand of friendship to the EU so that we can revamp this nation. I propose that I meet the EU ambassadors to chart the way forward’’. The EU on the other hand issued a statement; ‘’ although the December Elections where seriously flawed, there is no need to impose sanctions (unlike in Zimbabwe), there is more than one way to try and influence situations for the better.’’ Mwanawasa had taken the bet: Hook, line and sinker. He was their new found ‘client’ and Zambia was a client State. Mwanawasa was placed where he was needed. THE CORRUPTION CASES AGAINST FREDERICK CHILUBA TAKE OFF – THE LAUNCH IS SUCCESFUL A flurry of activities quickly began to happen in succession. When the new Parliament opened after the General Elections. UPND MP, for Katuba Constituency, Jonas Shakafuswa (And Mwanawasa’s nephew) immediately called for the lifting of Chiluba’s immunity, even when there were no indications or known cases of impropriety against Chiluba. DFID, a UK international Department where most aid is channelled in Africa, released an initial £5million for the ‘Anti-corruption Commission Enhanced Project (ACCCES), which aimed at ‘promoting ‘Zero Tolerance for corruption’. This theme, in-fact was quickly adopted by Mwanawasa and became his verbal policy and mantra every time he spoke against his predecessor and its government. DFID stated that the money would go to the Anti-Corruption Commission (ACC) to help it with operational and management capacity. However, most of the funds were to be destined to external and parallel initiatives, and the ACC partner institutions. But ACC had no partner institutions. In a flash of the moment, ACC partner organisations were created. New NGOs were formed in; Transparency International- Zambia (A local chapter of Transparency International), Integrity Foundation, Youths against Corruption. The NGOs formed, came together under an umbrella organisation called National Movement against Corruption (NAMAC) which persuaded other NGOs to join it. Its launch at Mulungushi International Conference was graced by Mwanawasa where scathing attacks were made against the ‘previous regime’. KEY INDIVIDUALS TAKE CENTRE STAGE. The donors had one newspaper Editor whose paper was over the years used effectively to denounce Chiluba’s Regime. The donors funded his paper heavily. The paper mobilised local voices to give legitimacy to the call to prosecute Chiluba as demanded by donors. The Paper portrayed that the calls to lift Chiluba’s constitutional immunity were growing and becoming ‘nationwide’. On 26th March 2002, whilst on a radio programme on Radio Phoenix, First Republican President Kenneth Kaunda and Chiluba’s sworn political enemy, called for the removal of Chiluba’s immunity. He also called for a quick arrest. Zambia alliance for Progress (ZAP) President, Dean Mungomba in his statement to The Post on March 26th 2002, said that ‘this is the right time to arrest Chiluba’. He was joined by Chiluba’s former Mines Minister; Syamukayumbu Syamujaye who charged that Chiluba was a ‘criminal who should be put directly into prison.’ Mark Chona, Mutembo and Nchima Nchito The donors also had Mark Chona, a former assistant to Zambia’s first President, Kenneth Kaunda. Chona disappeared in 1981, to western capitals for some reason. Chona only came back to Zambia when Chiluba defeated Kaunda. Chona was a brother to Zambia’s renowned veteran politician and former Vice- President in Kaunda’s government Mainza Chona. Mark Chona, was always at diplomatic functions and meetings and he styles himself as a ‘Diplomat’. In the year 2000, Muntembo Nchitos’ law firm represented Fred Mmembe, Chiluba’s former ministers Edith Nawakwi and Dipak Patel, in a case that was the precursor to Chiluba’s legal woes with Mwanawasa’s government, ‘Chiluba is a thief’ campaign. The trio were arrested, charged and prosecuted for criminal defamation. In 2002, the Magistrate Court found the trio with a case to answer. However, in a dramatic turn of events, the new President, released to Mutembo Nchito, the trio’s lawyer, statements of a security and intelligence operational account now famously known as the ZAMTROP account. The Director of Public Prosecution (DPP) dropped the case on the understanding that the ZAMTROP statements were required in Parliament to help lift former President Chiluba’s immunity so that he could be prosecuted for offences done under the ZAMTROP and other grand allegations. IMMUNITY LIFTED As planned in the backrooms and political manoeuvrings, the moment came against Chiluba. On Thursday July 11th 2002, Mwanawasa summoned a special session of parliament to consider the lifting of his predecessor’s constitutional immunity. ‘’Mr. Speaker, I have been in office as President of this nation for just over six months now, and there has been presented to me, regrettably, evidence of suspected serious abuse of office, theft, corrupt practices and acts which generally endanger the security of the nation.’’ Mwanawasa said to a stunned audience of the House. Mwanawasa went to inform the House of a catalogue of unverified, but grave and serious allegations against Chiluba and his government. The charges had not enjoyed any investigations by any Law Enforcement Agencies. He accused Chiluba of failing to account of USD35million proceeds from the sale of Luanshya Mine to Binani Group. He also stated that Chiluba could not account for a further USD12million sent to Luanshya Mine to help with operations after Binani abandoned the mine. Later it was learnt that the USD35million was in a ZCCM account after all and the USD12million had been given to Grant Thornton who were receiver managers of the mine. Grant Thornton appointed Chris Mulenga as Receiver and Michael Musonda Law Association of Zambia President, provided legal services. He accused Chiluba of stealing USD20.5 million with Katebe Katoto, a Congolese businessman, in a procurement of military equipment and arms. He said the contract was signed by Secretary to Treasury James Mtonga for government and Raphael Soriano Alias Katebe Katoto. He said the equipment and arms were never delivered. He told the House that Katoto was ‘a very close and long-time friend of Dr. F.J.T. Chiluba.’ He demanded that ‘Dr. Chiluba and his accomplices account for these funds’. He proceeded to make Katoto a prohibited immigrant in Zambia. He revealed and laid on the table of the House an intelligence operational account known as ‘ZAMTROP’. He said; ‘’I am not in a position at this time to say whether all the payments which were made are illegal, but I am satisfied that a substantial portion of them establishes a prima facie case that funds were embezzled or paid in suspicious circumstances requiring accountability.’’ He said that he recognised that this intelligence account enjoyed secrecy and its content must remain so but stated that ‘’on the face of it, illegalities were perpetrated on it and superior interest of the nation require that this veil is removed.’’ Mwanawasa made other allegations against Chiluba. He accused Chiluba of converting to himself or his associates MOFED (Ministry of Finance and Dev) assets in London and Dar-es-Salaam. He also accused Chiluba of participating in the disappearance of 67 oil tankers. Mwanawasa further accused Vernon Mwaanga of receiving USD360, 000.00 from the ZAMTROP. It was later learnt that Mwaanga received only USD3600.00 whilst he was in UK for a medical check-up. Mwaanga who is a former Director General of the Intelligence found nothing wrong with this payment as continues to cooperate with the security intelligence service. He also accused Chiluba’s Economic Advisor at State House of selling himself a three month old government vehicle worth K120million at K2.5million – ‘a price of a tyre he joked!. It was discovered that in fact the car was 3 year old and Donald Chanda had bought it under normal government regulations at a price of K12million. He accused Chiluba’s Press Assistant, Richard Sakala of diverting materials meant for the Presidential Housing Initiative (PHI) to the F.J.T. Institute for Democratic and Industrial Relations Studies, Chiluba’s brain child that would preoccupy his activities upon retirement. He closed the allegations by urging law enforcement agencies to move with speed to arrest and charge the culprits. He said the allegations would require months of detailed and thorough investigations before the truth was know but urged the agencies to ‘please carry on with these investigation’. Parliament adjourned after Mwanawasa’s address. When it sat five days later on, 16th July 2002, the members quickly lifted Chiluba’s immunity without much ado or following its own rules premised on natural justice never discussing without summoning persons outside the House. It is strange that President Mwanawasa would take to Parliament such grave allegations and form his opinion of ‘primafacie’ before professional investigations were carried out! THE TASKFORCE ON CORRUPTION – A QUICK TOOL TO ACHIEVE ARRESTS AND CONVICTIONS Later Mwanawasa, contrary to the advice of his Attorney General George Kunda, created a body called Taskforce on Corruption. He refused to assign such a big task to legally constituted bodies. He proceeded to appoint an Executive Chairman, Mark Chona and gave him powers that on the face of it appear to contradict the Constitution: The DPP, Mukelebai Mukelebai, together with George Kunda (Attorney General and Justice Minister) and Mukutulu Sinyani (D.E.C Chief) questioned the legality of the Task Force in separate letters urging Mwanawasa to legalise the institution. Sinyani in his letter to the DPP, Mukelebai, dated 5th January 2003 stated that ‘’as operatives, we are extremely concerned with lack of formal documents to show the legality of the Task Force on Corruption. I suggest that request the Secretary to Cabinet to regularise this issue back-dated to 15th July 2002….further if there is no legal status, then the procurements and funds being provided for operations will be questioned.’’ Sinyani feared that if this was not done it was fodder for the embarrassment of Mwanawasa from civil society organisations and opposition parties. However, Mwanawasa viewed their assertions and demands on the Task Force with contempt in his letter of reply 30th January 2003 tendered in the Mukelebai tribunal hearings. In his letter of appointment dated 7th January 2003, to Chona, Mwanawasa stated that: ‘’You will coordinate the operations of the joint effort of the Zambia Police, the Anti-Corruption Commission, the Drug enforcement Commission and the Zambia Intelligence Security Services to investigate and present to the Director of Public Prosecutions, for prosecution. You will coordinate the recovery of plundered assets through criminal and civil processes.’’ He gave the new body limited mandate only relating to Chiluba’s reign. George Kunda as Minister of Justice and Attorney General feared that the Task Force and Chona would be required to perform the job of the police, the Anti-Corruption Commission (ACC), Drug Enforcement Commission (DEC), the Zambia Intelligence Security Services and the DPP. In his letter to Mwanawasa dated 10th February, 2003 Kunda stated that Chona and his body could not be expected to perform functions under the Police Act, The Ant-Corruption Act, the ZSIS Act, and the Narcotics Drugs and Psychotropic Substances Act. Kunda stated that even if Chona was appointed under the Article 61 of the constitution as Mwanawasa had done, he could not legally perform such duties as assigned to him in his letter of appointment. Kunda said that Chona could only perform his functions if he was employed under the Acts he cited. He also clarified that there was however nothing illegal about officers from legal bodies cooperating, but ‘the appointment of Mr. Chona who doesn’t fall under any of the statutes cited has complicated the equation’. Mwanawasa clearly gave wide unconstitutional powers to a stranger at law .He ignored calls by civil servants, legal experts, civil society and the Church demanding that legitimate institutions do the work or that the Taskforce on Corruption be given a legal status. He proceeded to ignore legally established institutions on the advice of Chona and Mutembo who charged that those institutions were ‘full of Chiluba’s people’’. This was simply an excuse to satisfy donors who were pushing for ‘a successful prosecution and a speedy outcome’. The donors were already portraying Zambia as a successful example in the fight against corruption. Mwanawasa publicly yearned for a quick conviction against his predecessor. He issued numerous statements urging ‘the courts to convict all plunderers’. He also asked Chiluba to return 95% or 75% of plundered resources so that he could enjoy a pardon from him. Mwanawasa’s comments were so vile at law that it appeared that the allegations he had laid against Chiluba were totally conclusive and required no further judicial process. He was joined keenly by western donors who took turns to condemn Chiluba. At one time British High Commissioner to Zambia, Thomas Young and later Alistair Harrison, issued public statements that were prejudicial and usually in total contempt of court proceedings. When Alistair Harrison visited Mukobeko Maximum Prison with journalists in tow and stated that: ‘I can’t wait when plunderers will be put in prison for their crimes against the nation.’’ Chiluba’s lawyers raised numerous complaints to the Court against prejudicial statements coming from President Mwanawasa and Donors, but the complaints either fell on deaf ears or were conveniently ignored. The environment was so poisoned that In the Court of Public Opinion, Chiluba and his associates stood guilty and were only waiting for convictions! THE MOU THAT IGNORED THE CONSTITUTION. Donors decided to ignore conventional and established ways of funding government and signed a Memorandum of Understanding (MOU) that created a special fund and set guidelines for the Taskforce on Corruption. The MOU sought to give the Taskforce on Corruption and its Chairman wide powers and financial resources to direct and achieve ‘successful prosecution’. Chona was given exclusive powers to the bank account. The account was known as The Anti-Corruption Fund (ACF) Strangely the MOU also gave wide powers and mandate superintending over legal offices and forcefully directing investigations and prosecution without due regard to the Constitution. The MOU was signed by Ministry of Finance (Magande), The Taskforce on Corruption (Chona), Office of the President (Mwanawasa) and The Governments of United Kingdom, Denmark, Sweden, Ireland and Netherlands. The MOU in its guidelines gave the Taskforce on Corruption to investigate and prosecute all cases by 31st December 2006. It called for the disbandment of the Taskforce on corruption after 2006 with outstanding cases being referred to the DPP or relevant institutions. The MOU called for the handpicking of magistrates to handle cases and called for granting the Task Force on Corruption, direct access to the Judiciary. The MOU in part stated: ‘’The successful prosecution of these cases will depend to a large extent on the integrity of the magistrate assigned to handle the cases. Whilst the Task Force has no direct influence over the assignment of magistrates to individual cases, it will be beneficial to have a FEW of the best magistrates designated to HANDLE ALL the cases brought by the Task Force. The Deputy Director of Public Prosecution should as far as possible maintain contact with the Judiciary on behalf of the Task Force.’’ This clearly was new illegal ground. Contact with the Judiciary? Handpicking of magistrate? Are all magistrate not qualified to handle all matters? Have integrity? Aren’t all magistrates competent? Cases that were brought against Chiluba and his associates were all eventually assigned to selected magistrates. There are demands that the Anti Corruption Fund (ACF) be audited and the details be made public as irregular payments were done from this account by Chona. It is said that Chona dished out payments for Houses, farms and actual cash to those handling corruption cases to ‘insulate them against the corruption from plunderers’. This sounds corruption too, if not worse. CHONA DISMMISSED FOR FINANCIAL IMPROPRIETY Chona was eventually dismissed for financial impropriety caused on both government funds and the Anti Corruption Fund (ACF) held in UK. In her audit report of the Task Force on Corruption in 2005, Auditor General Anna Chifungula stated that the Taskforce on Corruption had no specific budgetary allocation (Since it is an illegal body) but received its funds through Ministry of Home Affairs and Cabinet office. She also stated that the Taskforce on Corruption maintained an offshore account (the Anti Corruption Fund) in United Kingdom (UK) but this was not available for audit except for funds released by Chona to a local account. The Audit report stated that there were a lot of unconstitutional expenditures and the Task Force suffered from poor record keeping and lacked internal control against abuses. The report also cited numerous payments without supporting documents and citing a case of USD302, 729.00. The report stated that books of account were not properly maintained. The report also stated that forfeited assets were being abused and tender procedures were ignored. The report cited USD2, 405,000.00 that Chona paid to Ovag UK, a newly formed organisation that Chona hired to ‘recover plundered resources’ overseas. Ovag the report noted did not do any discernible work and the contract stipulated that the agency could only receive money from ‘recovered plundered money’ yet Chona had paid such a colossal sum. Ovag never recovered any money. That report further stated that Chona had engaged a private law firm in UK Howrey Simon Arnold and White, the firm that started the initial suit against Chiluba and others on behalf of the Attorney General. Chona proceeded to pay USD1, 575,096-00 without due regard to the Attorney General (In whose name the suit was being undertaken) and without referring the matter to the Zambia National Tender Board (ZNTB). Later, the British Government hired on behalf of the Attorney General, DLA Piper. DLA Piper (who received in excess of £10million for their services), later hired William Blair QC (brother to Prime Minister Tony Blair) as its Barrister against Chiluba. William Blair was recently appointed as High Court Judge after his brother left office. The report also wondered why private prosecutors Mutembo and Nchima together with their law firm MNB, were hired by the Task Force and contracts signed without the mandate of the Attorney General who is the person allowed by law to negotiate, and provide legal service for all government contracts In the on-going Dora Siliya Tribunal, constituted to probe the allegations that Dora procured contracts without or disregarded Attorney General legal advice on the matter. Mutembo’s friend Mmembe and his The Post have campaigned against Dora for allegedly signing contracts without due regard to the Attorney General. The report also cited cases where Chona had used monies from accounts opened at Bank of Zambia and keeping recovered or forfeited funds. He paid out over USD763, 560.00 to meet fees for various ‘consultants’. Under the law, forfeited money under accounting and Financial Regulations No. 109, the revenue under this cap cannot be used for any purpose without parliamentary Approval. It is for this reason that former DEC Chief Ryan Chitoba is in court for diverting monies from Drug Enforcement Commission (DEC) forfeiture accounts. The reports also refer to cases where seized motor vehicles were vandalised or abused. It cites in particular, a BMW 320i (allegedly belonging to Chiluba and recovered from Pilatus Engineering). Chona’s son drove the vehicle and was damaged beyond repair. For this reason, the Taskforce did not process any police or loss reports! Chona roams the streets freely and graces numerous diplomatic functions, carrying himself as ‘a distinguished senior citizen’. THE DPP, MUKELEBAI MUKELEBAI IS HOUNDED OUT OF OFFICE- CHIEF ARCHITECT OF THE SCHEME, CHONA, MUTEMBO AND MMEMBE Under the Republican Constitution all powers to prosecute criminal matters vests in the DPP and his tenure is well secured and insulated. Therefore Mukelebai Mukelebai, who was the current and serving DPP, proved central to the success or ‘failure’ of the Task force to send to jail all accused persons as demanded by donors and Mwanawasa. To his detriment, Mukelebai appointed Mutembo and Nchima as public prosecutors. In a letter dated 2nd January 2002, Mukelebai stated that he had ‘appointed Mutembo and Nchima ‘as public prosecutors in all Districts in Zambia in relation to offences under the ACC Act’. In different circumstances, in 1994, Gregory Phiri as DPP appointed a private lawyer, Richard Ngenda, as public prosecutor following the collapse of Meridian BIAO. Mukelebai had a law degree from the University of Zambia obtained in 1985 and was admitted to the bar in 1986. He further did a post graduate course in International Law at in the UK. He also obtained a master’s degree from the University of Sussex. When Mukelebai was appointed as DPP in 1998, Mwanawasa was among those that congratulated him for the appointment stating that ‘the appointment was long overdue and most deserving’ in his letter dated 10th December 1998. Therefore there was no doubt about the competency of Mukelebai. The decision to remove him started when Mutembo Nchito differed or refused to follow the course of prosecution as directed by the DPP. On 3rd September, the DPP directed that in the ZAMTROP case, Chiluba, Stella Chibanda (Former PS Ministry of Finance), Bede Mpande (Economist at Min of Finance) and Attan Shansonga (Former Ambassador to the USA) be prosecuted. He directed that Faustin Kabwe and Aaron Chungu (Directors at Access Financial Services) be made witness. Mutembo ignored the directive and on September 12th, 2003 Chona wrote to the DPP that the directive on Aaron and Faustin will not be followed. He stated that; ‘’the investigations on Access Financial Services will cause tremendous embarrassment to the Government and to Mwanawasa in particular.’’ At the same time Mutembo wrote an eight page letter to Mwanawasa that ‘’ ….Dr, Chiluba and his thieving colleagues are still roaming free and fanning political tension…’’. He stated why he had refused to make Faustin Kabwe and Aaron Chungu as witnesses charging that the two were ‘criminals’; ‘’Your Excellency, the crimes of the Chiluba years cannot be understood without understanding the role Mr. Kabwe and his partners Messrs Francis Kaunda, Jean Pierre Rossane and Aaron Chungu. This syndicate was at the centre of the copper and cobalt scams, maize, fertilizer, oil to name a few’’. On 8th August 2003, Mukelebai wrote to Chona reminding him of the powers of the DPP as enshrined in the constitution. He informed Chona that he had taken drastic decisions to discontinue most cases thrust to courts without his say. He stated that most cases suffered poor preparations and irregular framing of charges. He directed that as required by law, dockets should first come to his office before being taken to court. Evidence emerged in the Essau Chulu Tribunal set up to remove Mukelebai, that suggested that Mutembo Nchito was in most cases framing up criminal charges, with Americans and British clandestine personnel, then rushing the cases to court without due regard to his virtual boss- the DPP, who should sanction and tender authority for prosecution. The cases ended in catastrophic failure with Xavier Chungu being acquitted and Katele Kalumba (Former Finance Minister) also won his case. At another time, the DPP directed that Mutembo should not prosecute the case against Richard Sakala, since he kept ignoring his directives and was ‘inventing’ his own charges. But Mutembo wrote a letter to Mwanawasa threatening to resign. In his letter dated 16th December 2003 to Chona, Mwanawasa, informed Chona that he had directed that Mutembo to continue prosecuting Richard Sakala. Mutembo was in fact doing cross-examination of a witness when he was directed so. Mwanawasa wrote: ‘’I learnt that the Director of Public Prosecutions had directed him(Mutembo) to withdraw from the Sakala case, I am glad that Mutembo accepted my request and I believe that as I dictate this letter, he is cross examining.’’ On that day, the DPP, Mukelebai and other prosecutors were at court to prosecute Richard Sakala. Mwanawasa sent then Agriciculture Minister, Mundia Sikatana to court to enforce his decision against the DPP. Whilst at court, Mwanawasa phoned the DPP on Sikatana’s mobile phone and told him off demanding that he should keep his ‘dirty’ hands off Mutembo! Mutembo had earlier spoken to Mwanawasa to discuss his threats to resign but rescinded his decision to resign as public prosecutor. As in most circumstances, he prevailed yet again. Mwanawasa blatant and continued interference to interfere in the work of the DPP was constantly encouraged by Chona and Mutembo. Most of the charges were so oppressive and impossible to prosecute that at one time Chiluba faced over 169 counts! And 96 counts! The charges were high sounding and framed to excite the media and donors who had released millions of dollars in the ACF account controlled by Chona. On December 18th 2002, when he was chairman of the Taskforce, Mukelebai, on the request by Secretary to Cabinet Leslie Mbula, authorised Chiluba and his family to go to the United Kingdom for a scheduled medical check up. After the authority was granted and tickets purchased, Mwanawasa cancelled Chiluba’s trip on the advice of Mark Chona and Mutembo Nchito. Despite the DPP informing them, that adequate security measures were in place between UK and Zambia in the event that Chiluba did not return, Mwanawasa spurned the advice. At this stage of the Task Force, Mutembo and Nchima were purporting to act Pro bono whilst Chona had imposed himself to ‘mobilise financial resources from the donor community’. On 8 December 2003, Chona wrote to Vice-President, Nevers Mumba demanding that Mutembo be made as lead prosecutor and that whilst in court he should be allowed to give an ‘opening address to the court’. This was strange to Zambia’s jurisprudence. Chona accused the DPP without cause of dubious dealings; ‘’All the evidence demonstrates that the DPP is not going to facilitate successful prosecution. He has a different agenda. Let the prosecutors (Mutembo) who understand the cases and who understand the cases and who have the desire to perform the task……….the legal fees are not paid by the Government but by donors who have allocated funds in their budget’’. The nail on Mukelebai’s fate came when he opposed Mutembo from being the lead prosecutor. The DPP stated that owing to the seriousness of the cases he would proceed to prepare and prosecute the cases in person. This resulted in Mutembo writing to President Mwanawasa threatening to resign. Chona also wrote to Vice-President, Nevers Mumba accusing the DPP of having an ambiguous prosecution strategy. In a heated meeting called by Nevers Mumba, on 11th December 2003, attended by Nchitos and the DPP, Mukelebai was clearly angered by Mutembo’s insidious influence and attempts to control constitutional offices. Mukelebai, in a rare outburst told Mumba that Mutembo had an insatiable appetite for money; Nchima and Mutembo were both desk lawyers who held no previous prosecutorial experience. He also accused Mutembo of having business dealings with Moses Katumbi and his brother Katebe katoto. He also accused Mutembo of having a personal animosity against Faustin Kabwe, stating that these relationships were compromising the work of the Task Force. MNB were lawyers for Moses Katumbi and his business empire before the corruption allegations. After the corruption allegations against Katumbi and Chani Fisheries, Katumbi complained to the Law Association of Zambia, that Mutembo was his lawyer and still had USD1million deposit for legal services. Katumbi argued that Mutembo could not now pursue him as an investigator and prosecutor. Mukelebai stated that for the proper success of cases, and for them to be achieved above board, the Task-Force needed lawyers and prosecutors of higher stature than Mutembo and Nchima. In one case (11 December 2003) the Nchitos wrote that: ‘’Your Excellency, our experience over the last 18 months with the DPP and his men has shown us their approach is totally different from ours……..they have taken a tendency to oppose whatever we say.’’ When Mutembo and Nchima wrote to Mwanawasa threatening to resign (they should have written to the DPP who was their appointing authority) and citing George Kunda, Minister of Justice and Attorney General as one of the cause, Mwanawasa wrote on 8th May 2003, to his long-time friend castigating him with strong scathing words; ‘’ I am anxious that the chairman and his team should not be frustrated into resignation……..I am unable to understand how you now seem to be in charge of these criminal prosecutions because I would have thought that under the law, all criminal prosecutions are supposed to be supervised by the DPP and there are only limited areas where you are authorised to intervene…..I would be most grateful if you could show as much minimum interference in his (Chona) task, as possible’’. The irony was that Mwanawasa never allowed the DPP who is mandated by the law to prosecute or work effectively in the discharge his constitutional duties. He preferred Chona’s and Mutembo’s ways and views over Kunda’s and Mukelebai’s. Soon after this, The Post broke with a sensational story that whilst on Christmas and New-Year’s Holiday in 2003-2004 with his 3 children, Mukelebai met and held meetings with ‘plunderers’ such as Xavier Chungu. The Post quickly followed up with their usual concerted and choreographed campaign demanding the removal of Mukelebai. This was followed up by Mwanawasa appointing a tribunal to remove the DPP Mukelebai Mukelebai under Article 58(3) (a) of the constitution. Mwanawasa charged Mukelebai with incompetence or inability to perform the functions of the office of the DPP arising from misbehaviour. Mwanawasa proceeded to give 10 particulars of the offence. The Esau Chulu tribunal however cleared the DPP of all charges and particulars. However, the tribunal requested that the DPP be retired in public interest as his relationship with the Republican President had broken down. The findings and recommendations were strange as the DPP was innocent of the charges and ought not to have any personal relations with the President during the exercise of his functions. Later Mukelebai went to lecture at the Institute of Security Studies in South Africa. He was sadly found dead in his room. Who killed Mukelebai? HOW TO RAISE INTERNATIONAL SPECTRE – BRING HIGH SOUNDING CASES AGAINST THE ACCUSED The propaganda was heightened to achieve maximum attention and effect. The cases came in a flurry. It started with Chiluba’s associates. Chiluba’s former Works & Supply Minister, Godden Mandandi was charged with theft of K250million together with National Assembly officials Roy Luka and Lyelu. Former Intelligence chief Xavier Chungu was a given a battery of charges involving Boats and Bikes. The offence of theft of motor vehicle was not bailable. Chungu was charged with this offence to keep him in prison as he was deemed dangerous. Former ministers Peter Machungwa and Godden Mandandi together with former Clerk of National Assembly, Mwelwa Chibesakunda and banker Richard Muwamba were charged with theft of K2billion. Then Chiluba was charged with 69 counts of theft of K19billion together with David Diangamo (former Secretary to Treasury), James Mtonga (Secretary to Treasury), Bede Mpande (Economist), Yotamu Zulu,(former Exec Director OP/ZSIS), former Zanaco Bank Chief, Samuel Musonda and George Mwambazi, Xavier chungu. They appeared before Christopher Shacifwa. Chiluba was again charged with 169 counts of theft of USD41million. He was charged with Xavier Chungu, Stella Chibanda, Attan Shansonga (former Ambassador to the USA), Faustin Kabwe and Aaron Chungu (Access Financial Services directors). They appeared before Jones Chinyama Others were charged with corruption involving USD 20million were Katele Kalumba, (Former Minister of Finance) Stella Chibanda, Bede Mpande, Boniface Noonde, Faustin kabwe, Aaron Chungu, and Benjamin Mweene. They appeared before Edward Musona. Most of the above charges were eventually dropped or modified and bore no resemblance to the sensational cases brought at the height of the propaganda. Instead of aiming to recover as they promised Zambians, most cases bore charges of abuse of office or theft of little amounts. And the oppressive nature of counts of up to 169 was dropped and accused persons appeared for 3, 6 or 8 triable counts or charges. Mutembo then took a serious security risk and hauled before civilian courts all former Defence Chiefs that served under Chiluba. Former Zambia Army Commander, Lt Gen. Geojago Musengule , Former Zambia Air-force Chief, Lt. Gen Sandy Kayumba and Former Zambia National Service Chief Lt. Gen wilford Funjika. Most of the cases against the Generals were petty in nature or did not constitute theft but ‘abuse of office’. Truly, Zambia was a ‘shining’ example to Africa, in their reports and circulation magazines the donors celebrated this achievement calling it ‘triumph against impunity’. The reports quickly pointed to the facts that Zambia had a Former President on trial, his Intelligence Chief, his Defence Chiefs, and their top bankers. When the state ‘won’ a case in the London High Court where the Attorney General had sued Chiluba and 19 others for ‘recovery’ of USD20million, the donors who mooted and signed the MOU, issued a joint celebratory statement against Chiluba. On May 17, 2007, UK, Sweden, Netherland, Norway, Ireland and Denmark issued this statement calling the London Judgement as a ‘historic victory’. United states Ambassador Carmen Martinez had earlier issued a similar statement, saying it’s the ‘best thing that could ever happen’ and called for its quick enforcement. Chiluba had consistently rejected the jurisdiction and authority of the London high Court on him. He had refused to recognise its jurisdiction on him. He also stated that he would not recognise such a court’s pronouncements and findings. He accused Mwanawasa of selling the sovereignty of Zambia at the altar of political expediency. He stated that he stated that he didn’t understand why the Attorney General of Zambia, would go take its own citizens to a foreign court. KENYA. In 2002, Kenya went to the polls. Daniel Arap Moi after transforming Kenya to multi-party democracy was leaving office. Moi had won elections under democracy in 1992 and 1997 but was not recontesting the 2002 elections, due to a two term constitutional restriction. Moi was characterised as corrupt and is said to have amassed wealth for his own benefit. An alliance of opposition parties led by veteran politician Mwai Emilio Stanley Kibaki, challenged Moi’s chosen successor and candidate for the Kenya African National Union (KANU), Uhuru Kenyatta. Uhuru is the son to Kenya’s founder President, Mzee Jomo Kenyatta. KANU had been in power for 39 years. Kenyans were tired of the same old lies even under Uhuru’s new skin. Kibaki was set for an amazing sunset to his political life. An economist, Mwai Kibaki mobilised an alliance of opposition parties and together, they were called the National Rainbow Coalition (NARC). Kibaki was Moi’s previous Vice-President (1978-1988). Kibaki easily won the elections. Donors set eyes on this new government. They had John Githongo. Githongo was previously Head of Transparency International –Kenya. A journalist by profession, he was appointed in Kibaki’s office, as Head of Governance and Ethics. He was fondly known by the media as the ‘Anti-Corruption Tsar’. His father founded Transparency international-Kenya. DANIEL ARAP MOI IS TARGETED BUT THE FIGHT FAILS TO LAUNCH Attempts by Githongo to push an agenda to prosecute the Former President, Arap Moi, failed. Kibaki is said to have refused to grant permission fearing endangering national security and unnecessary divisions and political tension. Kenya is held together by a thread-bare unity that is constantly threatened by ethnic and tribal tensions. Kibaki refused to risk the country’s nationhood over an agenda driven by foreigners. In the eyes of the West, Kibaki was a danger to ‘democracy’ as he was ‘keen to protect individuals at the expense of the nation’. Despite a landslide win from Kenyans, he seemed not to be a suitable leader in their eyes. Kibaki received scathing attacks from donors especially the British High Commission to Kenya who issued various condemnation statements portraying Kibaki’s government as the most corrupt regime in recent democratic governments in Africa. His government was immediately cast in the most negative light. Huge scandals were ‘unearthed’. The KenRen, Goldenberg and Anglo Leasing corruption scandals were unleashed before an international media in now familiar choreography. For Githongo, barely two years in his job, he travelled to London and whilst in the laps of his masters, released a dossier that ‘uncovered USD200million – USD700million scams’. He revealed that the financial scams used fictitious contracts to launder money from the Kenyan treasury. He said ministers told him that the money was being ‘stolen’ for party programs and was meant for the elections due in 2007. He stated that he feared for his life and couldn’t go back to Kenya. During this time, Githongo enjoyed massive coverage and gave numerous interviews explaining the corruption in his country and his inability to fight it owing to the sheer scale of the scams. He hoped that the new elections due in 2007 would give Kenyans an opportunity to rid the country of ‘corruption’ a clear reference to his former boss, Kibaki. The international media graced Githongo with space only comparable to a visiting Pope! In the elections of 2007, Kibaki continued to receive a concerted negative and absurd publicity. His family was not spared. Beside the corruption allegations against his government, his family were constant ridicule of the media. His wife Lucy was not spared either. There was constant speculation about Kibaki’s other woman. The damaging campaign was well oiled by western donors. Kibaki’s major opponent was Raila Amollo Odinga. Railla Odinga, being a son of Kenya’s first and popular Vice-President Jaramogi Oginga Odinga, he had a head start and the required political pedigree, to unseat Kibaki Raila had stood in the 1997 elections and came third to Moi and Kibaki. He ran under the Orange Democratic Movement (ODM). Despite the relentless concerted campaign against Kibaki and the ‘corruption scandals’, he won a second presidential term. Immediately after the elections, were so much violent and bloody-letting that actually threatened the peace and security of Kenya and divided it citizens to the core. A rapid and diplomatic response was unleashed led by former United Nations (UN) Secretary General Kofi Annan. The proposed settlement was simple: that only a Government of National Unity (GNU) (the silly but emerging form of democracy in Africa, where the incumbent retains power but is forced to share power with the chief opponent, whatever the outcome of the elections!). Raila was implicated in the ethnic attacks that targeted and displaced the Kikuyus, Kenya’s majority tribe. Raila is Luo. Dripping with his bloody hands, Raila joined and became Prime Minister in Kibaki’s government in a negotiated settlement. MALAWI After a failed bid for a third term President Elson Bakili Muluzi stepped down leaving office to his nominated successor Mbingu Wa Mutharika who was former COMESA Secretary General. Muluzi, who came to power in 1994 after beating founder President Hastings Kamuzu Banda, led the United Democratic Front (UDF). He beat Banda of Malawi Congress Party (MCP) and Chakufwa Chihana of the Alliance For Democracy (AFORD). Muluzi was a veteran politician who at a young age had served in Banda’s government and rose to be secretary General of the MCP in 1981. When Wa Mutharika took over the reins of power, he accused his predecessor of embezzling over USD90m (MK10billion). This brought a serious conflict between the two. In February 2005, Mutharika left the party with 70 MPs and formed the Democratic Progressive Party (DPP). Muluzi remained chairman of the UDF. The 70 MPs were expelled from the UDF, but with the help of Wa Mutharika have refused to relinquish their seats contrary to the provisions of the law. In April 2005, Muluzi apologised to Malawians for ‘imposing for choosing Mutharika as his successor and imposing him on the country.’ Mutharika with the support of western donors pursued Muluzi. Various Muluzi associates were arrested and charged with corruption. In 2008, the UDF elected Muluzi as its presidential candidate for the May 19 2009 elections. The chairman of the Anti-Corruption Bureau (ACB), Alex Nampota announced shortly after that the ACB intended to prosecute Muluzi for theft of USD11million donor money diverted to his personal account. Muluzi was in UK for medical treatment. Upon his return on May 25th 2008, he was arrested at the airport in Lilongwe. Prior there were allegations of a plot to remove Wa Mutharika by force and the State implicated Muluzi. Muluzi was placed under house arrest in Blantyre. The High Court later granted him bail. CONCLUSION A single thread of donors’ influence has pushed the agenda to have high profile persons brought before the law. There might be possible evidence of impropriety against the Daniel Arap Moi, Frederick Chiluba and Bakili Muluzi, but why should foreigners with unknown motives be allowed to force Africa to deal with such cases. Isn’t Africa capable of solving its own problems? Doesn’t Africa have standing legal institutions that can handle these matters without predetermination?