The Debasement and Rot in Zambia’s criminal justice system

The Debasement and Rot in Zambia’s criminal justice system

The Debasement and Rot in Zambia’s criminal justice system

*In the photo is David Simusamba, the man regarded as one of the most corrupt magistrates in Zambia

THE debasement and absolute rot in Zambia’s criminal and related justice systems is evidenced by the irrevocable words of Honourable Ronald Chitotela after his acquittal from the charges of “proceeds of crime” or corruption by His Worship Magistrate Simusamba on July 11, 2019. Chitotela is reported to have thanked the President of Zambia for believing in him and presumably his innocence and inevitably for not being sacked or suspended during the tenure of the charge.

President Lungu had stated that he would not do anything in terms of sacking or suspending Chitotela because of the legal imperative of “innocent until proven guilty”, despite the fact that Chitotela was charged with the genre of crimes where pursuant to Section 47 of the current Anti-Corruption Act, the public officer charged must be suspended but receiving half-pay. This ensures amongst many other reasons that the investigation is conducted thoroughly and unobstructed by the presence of the target individual, whose very presence has the potential of derailing the investigation through intimidation and bribery.

The administration of justice retains its repute whatever that is, when it is perceived that the investigation and the eventual trial are not charades and whose outcomes are not predetermined. The question of innocence until proven guilty is an important principle in criminal law but it is preserved when one is suspended at half pay. Suspension is to preserve the integrity of the investigation and the office from which the accused hails. The person is not summarily discharged with the immediate loss of means of livelihood. If the person is eventually acquitted, there is no reason why he or she cannot claim the retained portion of the income. The balancing of interests of the state with that of the individual is embedded in all areas of law including criminal law. In the process, of course, the scales between the public/state on the one hand and the individual on the other, cannot remain the same. It is in the nature of the beast.

The fact that Chitotela was vindicated does not and shouldn’t attract any accolades to the President’s allusion to the principle of innocence until proven guilty and his belief in Chitotela, for in reality the President’s statement concerning innocence until proven guilty and his belief in Chitotela could have affected the manner in which the prosecution and defence phases of the case proceeded, the testimony of the witnesses unfolded and the judicial outcome germinated. Of course this is all informed speculation buttressed by Chitotela’s confession in which he thanked the President for believing in him by not acting precipitously. Where on earth does the acquittal in a criminal case attract the sentiments of gratitude to the President of the country for his or her belief in the bona fides of the accused person? Political leaders should never be thanked in any way, shape or form when one gets acquitted.

Chitotela’s sentiments speak volumes about the political colouration of Zambia’s criminal justice system. This evinces the debasement and rot in the criminal justice system when an accused person is acquitted and that person finds time to praise the behaviour of the political leaders in his or her saga! In a country where there is rule of law, the acquitted person must pay homage to it rather than to the President. Sycophantism aside, the President must never be treated as the giver of life and death in criminal matters for this is tantamount to breeding demi-gods. Politics must never come near criminal law outside of Parliament.

In Zambia we know the coupling of criminal law and politics. You just have to examine how the public order Act has been used in Zambia in the past several years. You just have to look at the political use of the police in the criminalization of society particularly those in the opposition. You just have to examine the fake treason charges against an opposition politician and the attempted fake declaration of a state of emergency. But look at how there has never been a declared state of emergency against corruption which is daily threatening the economic survival of Zambia.

The Chitotela case raises a lot of questions: what is the law pertaining to corruption? What exactly are the elements of corruption and what is the matrix by which there would be sufficient evidence for conviction? What kind of investigations were carried out before the charges were laid against Chitotela? Should he have been charged? What kind of police investigators do we have for such politically-tilted corruption cases? Are police competent enough? Is the ACC competent enough to gather credible evidence? Is DEC competent enough to gather credible evidence? What kind of prosecutors do we have for such politically sensitive cases?

If Chitotela went down, a lot of corrupt politicians would go down. What precedent does this acquittal set? Already Zambia has a dismal conviction rate in top- heavy political corruption cases and one of the problems emanates from the investigative steps where gapping loopholes in the evidence unfold immediately the very initial grenades are lobbed into the courtroom case through cross-examination. The fruits of investigation enable or dis-enable the hand of the prosecution, an institution which is itself intimately bound to the umbilical cord of the presidency.

The President should have suspended Chitotela pursuant to Section 47 of the ACC as already intimated above. Not suspending him is a breach of the law. But the President himself had already set precedents in the breach of the law so how could he require someone to temporarily step down at half pay when the President himself did not step down to hand over power to the Speaker of the National Assembly when the Presidential Election Petition was filed pursuant to a constitutional provision, the supreme law of the land? If you can break the Constitution with impunity, surely you can breach the provisions of a mere statute, again with impunity! The debasement and rot in the criminal justice system and now we have seen that even the Constitution is debased and is decaying from the top by the President of the country down to the cop on the beat who fails to do a proper investigation or continuation of the investigation because the minister in question remains in office contrary to the enabling legislation.

It is downhill from there. It doesn’t matter how you dress up the criminal justice system. It is debased and rotting. The same process is going on respecting the Constitution of Zambia. The outcome of the National Dialogue Forum is meant to butcher, cannibalize and maintain in power in perpetuity those who have debased and killed our criminal justice system.

Back to the Chitotela case. It was painful to read the articles in the government owned newspapers about the kind of evidence the prosecution was deploying in this case. It was cavalier. It reminded one of the kind of post-apartheid era prosecutions for apartheid era crimes against humanity before apartheid era judges who still owed allegiance to the apartheid era judicial dispensation. Acquittals were the order of the day even when the evidence properly deployed could have resulted in convictions. Convicting someone for corruption is already hard enough, just like convicting someone for crimes against humanity: you don’t bring anemic evidence when the job at hand is already hard enough. You already know the environment is a cesspool of corruption, and corruption is tolerated at the highest levels, then you commence your crusade by deploying the weakest evidence against one of the ministers whose ministry oozes with corruption! Why do you think the evidence of corruption unearthed by independent government institutions like the Auditor General and the Financial Intelligence Centre is not used while there are attempts to use the evidence of executive controlled agencies like the ACC, the DPP etc? It is to ensure that there is no potent fight against corruption. It is meant to preserve corruption in Zambia. That is my informed and considered opinion. There is nothing wrong in expressing one’s opinion. You should express your opinion too under our democracy.

The Chitotela case outcome continues the tradition of the lack of seriousness in the fight against corruption. Now all the big corrupt politicians are breathing easy knowing that the system is on their side and the President believes in them as articulated by Chitotela. Meanwhile, the President continues to demand: “bring us the evidence of corruption if you have it.” The evidence is in the mountains of reports of the Auditor General and the Financial Intelligence Centre and gathering dust in the right (and/or wrong) offices known to the President, the DPP, DEC, the Inspector General of Police. Or a phone call away to the Auditor General’s office when one is ever appointed to that office or to the FIC. The evidence is there.

Something has gotta give. In the history of humanity, there is no system that has self-cleansed itself from inside out. So it will go with the debasement and rot in Zambia’s criminal justice system. Any reforms and attempted constitutional amendments are not self-cleansing, they are meant to continue and entrench the debasement and rot to the deepest depths.

Dr Munyonzwe Hamalengwa teaches criminal law and law of evidence in Law School.

David Simusamba is regarded as one of the most corrupt judicial officers

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