The Anti-Corruption Commission has ‘taken up’ Rupiah Banda’s Nigerian oil deal case which was being prosecuted by the National Prosecutions Authority. The ACC has since made submissions to court, asking outgoing Lusaka chief resident magistrate Joshua Banda to find the former head of state with a case to answer in the abuse of authority case involving a Nigerian government oil deal which benefitted him and his son, Henry Banda, who served as Zambia’s Republican president between 2008 and 2011, is in this matter charged with one count of abuse of authority of office.
It is alleged that on unknown dates but between May 1, 2008 and September 24, 2011 in Lusaka, being a person employed in the public service as Republican president, procured a Nigerian government-to-government oil contract in the Republic of Zambia’s name which he in fact meant to benefit himself and his family. The allegation further stated that Banda instructed Henry to determine the destination of the proceeds of this contract, as a result causing the country to lose US$2.5 million.
In the prosecution’s submissions filed by prosecutors from the ACC on March 30, and not the National Prosecutions Authority (NPA) who were prosecuting the case led by suspended Director of Public Prosecutions Mutembo Nchito, it was stated that from the evidence adduced, a prima facie case had been made against Banda. “At this point, it is not for the prosecution to prove the case beyond reasonable doubt.
The onus of the prosecution at this point is to demonstrate that the elements of the offence have been proved warranting an explanation from the accused person,” the submissions read. “We therefore urge this Honourable Court to find the accused person with a case to answer and put him on his defence.” In justifying their prayer to have Banda placed on his defence, the ACC indicated that the elements that need to be proved before Banda can be found with a case to answer are that “he was a person employed in the public service, he did or directed to be done an arbitrary act which was prejudicial to the rights and interests of the government or any person and that he acted in abuse of the authority of his office or that the act was done or directed to be done for purposes of gain”. “It is a fact not in dispute that the accused person was in the public service. The Head of State is considered as ‘public servant number 1’.
The President is an elected official whose position comes from an electoral process,” the over 40-page submission read. “His greatest calling is to the service of the people of Zambia. This commitment is contained in the Presidential Oath of Office which is contained in the first schedule of the Officials Oaths Act.” The ACC noted that a summary of the prosecution’s evidence reveals that Banda was introduced to Nigerian businessman, Akpan Ekpene, by Major Richard Kachingwe who was deputy High Commissioner to Nigeria then. “Mr Ekpene introduced the concept of the government-togovernment oil contract to the accused person. Once the accused person assumed the office of president, he decided to pursue the government-to-government oil deal. He assigned Maj Kachingwe as his special envoy to ensure that the transaction went through,” the submission reads in part. “Various correspondences were entered into between the accused person, in his capacity as the Head of State for Zambia on the one hand and the Nigerian President on the other hand.” ACC stated that during a visit to Nigeria, Banda had a meeting with his Nigerian counterpart, shortly after which the contract was granted to the Zambian government. “All the while, Maj Kachingwe and Mr Ekpene were the ones who pushed for the contract to be executed. When the oil was ready for lifting, Mr Ekpene personally travelled to Lusaka, Zambia to find out from the accused person how the proceeds of the sale of the oil would be channelled to Zambia,” it submitted further.
“It is at this point that the accused person instructed Mr Ekpene to deal with his son Henry Chikomeni Banda and it became clear that the proceeds of the sale of the oil were never to benefit the Zambian people but were meant for the direct benefit of the accused person and his family.” ACC further stated that this inference is made because if the proceeds of the transaction were meant for the Zambian people, then the right people to have handled the transaction should have been government officials. “At no time had Henry Chikomeni Banda been a public servant nor had been hired as an agent of the Government of the Republic of Zambia to transact on its behalf regarding receipt of proceeds of the governmentto-government oil contract,” they argued in furtherance. “It also became clear that the accused person abused his position as president to enter into this arrangement as it was clear that he had never intended that the government be involved in the deal. Had he not been Head of State holding himself out as representing the Republic of Zambia, the contract would never have been given to the Zambian government.” The ACC, which disagreed with Banda’s arguments that Maj Kachingwe should be treated as a witness with an interest to serve, stated that the position illustrated that Banda abused the authority of his office by appointing a special envoy to act on behalf of the Zambian government in a highly secretive and suspicious manner.
It stated that when SARB Energy issued the offer letter on the oil deal, it had to Banda’s special envoy, Maj Kachingwe, to undertake a secret trip to collect it when he was not based at the Zambian mission in Nigeria at the time. “This oil deal was a clear and irrefutable demonstration of why the inference has been drawn that the oil deal was shrouded in secrecy,” the ACC submitted in part. “It was a secret due to guilty knowledge on the part of the accused person. He knew from the onset that he intended to unlawfully keep the proceeds of the oil deal to himself and his family.” It pointed out that from Ekpene’s testimony, it was apparent that the oil money that was worth millions of dollars would have benefitted poor Zambians.
“The accused had no regard to the fact that by using a person who lacked neither the technical know-how nor the legal capacity to enter into contracts, he was prejudicing the rights and interests of the government,” ACC stated. “The said money to be realised from the purported transaction was not remitted to the Zambian government coffers but to the accused person’s son, Henry Chikomeni Banda. Henry Chikomeni Banda falsified a contract for a company called IEXORA. He further bought an ‘off the shelf company’ which he registered in Hong Kong and used to open an account in Singapore.” It concluded that the Nigerian oil deal was supposed to benefit Zambia but Banda and Henry directed the anticipated profits from the deal to an account which did not belong to the government. “The accused made it clear that even before the said monies were received that he intended to use the funds for his election campaign and directed his son to determine the account where this money would be deposited. This is clearly an abuse of authority on the part of the accused,” the submissions read. “The offence of abuse of authority of office is tantamount to misconduct in public office…we therefore, humbly submit that the accused person does have a case to answer to the charges herein on account of the evidence produced by the prosecution.” Those who testified on behalf of the prosecution are Derrick Kasonka, a police officer, Alex Luhila, a former High Commissioner to Nigeria, Dr Austin Sichinga, a former chief of staff at State House during Banda’s presidency, Margaret Kaemba, a former first secretary for economic affairs in Abuja, Maj Kachingwe, Ekpene, who is managing director of Nigeria’s SARB Energy, Banda’s energy minister Kenneth Konga, Charles Mulenga, a director of energy at the Ministry of Energy and Charles Tembo, an ACC senior investigations officer who handled the case.