UNIP concerned with FJT acquittal (FJT ruling in full)

_1716162_tilyenji_kaundaThe United national Independence Party (UNIP) says it is concerned with the current debate on the acquittal of former president Fredrick Chiluba.
Kaunda also said Zambians should not allow president Rupiah Banda to continue interfering in the judiciary and other wings of government.

Speaking Tuesday morning during a press briefing  Kaunda said for the fight against corruption to flourish, the judiciary, parliament and the executive should allowed to operate independently.

Kaunda has challenged the Law Association of Zambia (LAZ)  to reflect deeply on the outcome of some high profile cases and take measures to uphold the confidence of the Zambian people in judgments made by the judiciary.
He warnerd that if the people  lose confidence in the integrity of the judiciary even the democratic system Zambians aspire to build will be seriously compromised.

BELOW IS THE VERBATIM VERDICT OF THE CHILUBA PLUNDER CASES

IN THE SUBORDINATE COURT OF THE
FIRST CLASS FOR THE LUSAKA DISTRICT
HOLDEN AT LUSAKA
(CRIMINAL JURISDICTION)
SSP/124/2004
BETWEEN:
THE PEOPLE COMPLAINANTS
AND
DR. FREDERICK TITUS
JACOB CHILUBA 1ST ACCUSED
FAUSTIN MWENYA KABWE 2ND ACCUSED
AARON CHUNGU 3RD ACCUSED

CORAM: J. CHINYAMA, PRINCIPAL RESIDENT
MAGISTRATE

FOR THE PEOPLE: Mr. M. Nchito of Messrs MNB Legal
Practitioners with Mr. F. Malambo of
Zambia Police, Public Prosecutors.

FOR THE 3 ACCUSED

PERSONS: Mr. R.M. Simeza with Mr. J.P Sangwa
both of Messrs Simeza Sangwa and
Associates.

J U D G M E N T

PRELIMINARY ISSUES – CASE MANAGEMENT

J2

The trial of this case started on the 11th October 2004
when plea was taken. The prosecution began to call
witnesses on 18th November 2004. On 31st August 2007
they closed their case. Thirty five witnesses were called
and 206 documentary and landed property exhibits were
produced.

On 15th February 2008, I delivered my ruling in which I
found the accused persons with cases to answer and put
them on their defence. They did not open their defence
until 5th may 2008 and closed on 11th March 2009.
Thereafter, I received submissions from either side. It has
taken me slightly over five weeks to collate the evidence of
the witnesses and deliver this judgment.

The trial of the case and its determination has obviously
taken long going by the dates given. However, the court
actually sat for 135 days denoting a period of about five
and a half months. Various factors contributed to the
delay. In the course of the proceedings numerous issues
that prevented the case from proceeding on a day to day
basis as advised, for example, in the case of MULWANDA V
THE PEOPLE (1976) ZR 133 (S.C), took place. These

J3

included but were not limited to the following: the trial
Magistrate, the Public Prosecutors and the defence
advocates were engaged in other cases although all worked
towards freeing themselves from those other matters; the
first accused person was taken ill and had to attend
medical treatment and during which period no witness was
heard from 23rd March 2006 to 15th August 2007 when
trial resumed.

Other causes for the delay were administrative hitches
between the prosecution and the defence with regard to
procuring evidence particularly in the possession of third
parties for the defence and to a lesser extent indisposition
on the part of counsel and once for a few days the sickness
of A3. The sickness of the first accused also disabled
proceedings from being conducted in the mornings and in
the afternoons, restricting them to a few hours in the
mornings spaced with intervals to allow him some respite.
The court was also required many times to rule on the
different issues that came up during the trial which some
times necessitated adjourning for fuller consideration and
research. There was also the constant interference of the
free flow of the proceedings from commentaries in the

J4

press which, in many cases, irked the defence counsels’
and was the subject of constant requests to the court to
institute contempt proceedings. Earlier in the proceedings
on 25th November 2004 I had made a constitutional
reference to the High Court. The trial had to await the
decision of the High Court and we were only able to
continue with the trial on 25th July 2005. In the
intervening period the court’s, the prosecutor’s and the
defence counsels diaries had taken up other matters.

After the conclusion of the trial further delay was caused
by the learned defence counsel particularly in respect of A1
who filed his submission well after the time allowed by the
court and for which counsel sought the intervention of the
High Court in Judicial Review proceedings which were
aborted when I allowed a consent order for the filing of the
submission out of time.

I have found it necessary to include the foregoing in this
judgment not because I want to justify the long period the
case has taken to be concluded but to avail information for
the better management and handling of cases particularly
those of this nature which no doubt have interested the

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public through out. In these proceedings I was always
mindful not only that justice delayed is justice denied but
also that justice hurried can also amount to justice denied.
I had to strike a balance between the two. There are, of
course, always lessons to be learnt. The long trial has
obviously affected my recollection of the demeanor of the
witnesses.

THE OFFENCES CHARGED

The three accused persons are charged with twelve counts
of offence between them as follows:
The first accused person, Dr. Fredrick Titus Jacob Chiluba
(hereinafter called A1) is charged with six counts of theft
by Public Servant Contrary to sections 272 and 277 of the
Penal Code, Cap. 87 of the Laws of Zambia.

The second, accused person, Mr. Faustin Mwenya Kabwe
(hereinafter called A2) and the third accused person Mr.
Aaron Chungu (hereinafter called A3) together stand
charged with six counts of the offence of theft contrary to
section 272 of the Penal Code aforesaid.

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It is notable that three of the offences A1 is charged with
viz; counts 1, 2 and 3 are related to three of the offences
A2 and A3 are charged with viz; counts 4,5 and 6. The
distinction between these sets of offence is that A1 is
charged as such because at the time of the alleged offences
(and those in counts 7,8and 9) he was the President of this
country hence the preference of the offence of theft by
Public Servant. The other two accused are charged as
private persons, hence the preference of the offence of
Theft, simpliciter. Otherwise it seems to be the case for
the prosecution that the three accused persons acted
jointly and together to steal the sums of money alleged

A1 stands alone in counts 7, 8 and 9 from A2’s and A3’s
counts 10, 11 and 12 but the nomenclature of the offences
remain the same as in the earlier counts. I will now set
down each offence that the accused are charged with and
the particulars in the order of the relationship shown
above followed by the stand alone offences.

Count 1

Theft by Public Servant contrary to sections 272 and 277
of the Penal Code.

J7

Particulars of offence: Dr Frederick Jacob Titus Chiluba on
14th May 1998 at Lusaka, being a person employed in the
public service, namely President of the Republic of Zambia,
jointly and whilst acting together with Faustin Mwenya
Kabwe, Aaron Chungu and other persons unknown did
steal US$50,000 on cheque No. 4938, the property of the
Government of the Republic of Zambia which came into his
possession by virtue of his employment.

Count 4

Theft contrary to section 272 of the Penal Code.
Particulars of offence: Faustin Mwenya Kabwe and Aaron
Chungu on 14th May 1998 at Lusaka, jointly and whilst
acting together with Dr. Frederick Jacob Titus Chiluba and
other persons unknown did steal US$50,000 on cheque no
4938, the property of the Government of the Republic of
Zambia.

Count 2

Theft by Public Servant contrary to sections 272 and 277
of the Penal Code.

J8

Particulars of offence: Dr. Frederick Jacob Titus Chiluba
on 30th June 1998 at Lusaka being a person employed in
the Public Service, namely President of the Republic of
Zambia, jointly and whilst acting together with Faustin
Mwenya Kabwe, Aaron Chungu and other persons
unknown did steal US$125,000 on cheque No. 6119, the
property of the Government of the Republic of Zambia
which came into his possession by virtue of his
employment.

Count 5

Theft contrary to section 272 of the Penal Code.
Particulars of offence: Faustin Mwenya Kabwe and Aaron
Chungu, on 30th June 1998 at Lusaka, jointly and whilst
acting together with Dr. Frederick Jacob Titus Chiluba and
other persons unknown did steal US$125,000 on cheque
No. 6119, the property of the Government of the Republic
of Zambia.

Count 3

Theft by Public Servant contrary to sections 272 and 277
of the Penal Code.

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Particulars of offence: Dr. Frederick Jacob Titus Chiluba,
on 22nd December, 1998 at Lusaka, being a person
employed in the Public Service, namely President of the
Republic of Zambia, jointly and whilst acting together with
Faustin Mwenya Kabwe, Aaron Chungu and other persons
unknown did steal US$148,030 cash the property of the
Government of the Republic of Zambia which came into his
possession by virtue of his employment.

Count 6

Theft contrary to section 272 of the Penal Code.
Particulars of offence: Faustin Mwenya Kabwe and Aaron
Chungu on 22nd December, 1998, at Lusaka, jointly and
whilst acting together with Dr. Frederick Jacob Titus
Chiluba and other persons unknown did steal US$148,030
cash, the property of the Government of the Republic of
Zambia.

The foregoing comprise the related counts. I will set down
the stand alone counts starting with those relating to A1
and then those relating to A2 and A3.

Count 7

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Theft by Public Servant contrary to sections 272 and 277
of the Penal Code.
Particulars of offence: Dr. Frederick Jacob Titus Chiluba
on dates unknown but between 17th August 1998 and 19th
August 1998 at Lusaka, being a person employed in the
public service, namely President of the Republic of Zambia,
jointly and whilst acting together with other persons
unknown did steal US$123,980.25 cash, the property of
the Government of the Republic of Zambia, which came
into his possession by virtue of his employment.

Count 8

Theft by Public Servant contrary to sections 272 and 277
of the Penal Code.
Particulars of offence: Dr Frederick Jacob Titus Chiluba on
dates unknown but between 26th April 1999 and 28th April
1999 at Lusaka, being a person employed in the public
service namely President of the Republic of Zambia, jointly
and whilst acting together with other persons unknown did
steal US$27,906.48 cash the property of the Government
of the Republic of Zambia which came into his possession
by virtue of his employment.

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Count 9

Theft by Public Servant contrary to sections 272 and 277
of the Penal Code.

Particulars of offence: Dr. Frederick Jacob Titus Chiluba
on 26th May 1999, at Lusaka, being a person employed in
the public service, namely President of the Republic of
Zambia, jointly and whilst acting together with other
persons unknown did steal US$33,000 cash, the property
of the Government of the Republic of Zambia, which came
into his possession by virtue of his employment.
The next three counts relate to A2 and A3

Count 10

Theft contrary to section 272 of the Penal Code.
Particulars of offence: Faustin Mwenya Kabwe and Aaron
Chungu on an unknown date but between 1st July 2000
and 31st July 2000 at Lusaka jointly and whilst acting
together with other persons unknown did steal
US$205,000 cash the property of the Government of the
Republic of Zambia.

Count 11

J12

Theft contrary to section 272 of the Penal Code.
Particulars of offence: Faustin Mwenya Kabwe and Aaron
Chungu, on an unknown date but between 16th January
2000 and 30th April 2000 at Lusaka, jointly and whilst
acting together with other persons unknown did steal
K25,000,000 cash the property of the Government of
Republic of Zambia.

Count 12

Theft contrary to section 272 of the Penal Code.
Particulars of offence: Faustin Mwenya Kabwe and Aaron
Chungu on a date unknown but between 1st April 2000
and 31st April 2000 at Lusaka, jointly and whilst acting
together with other persons unknown did steal
K43,000,000 cash the property of the Government of the
Republic of Zambia.

The foregoing are the offences that the three accused
persons stand charged with. Each one of the accused
denied the charges against him and pleas of not guilty
were recorded.

J13

At the beginning of this trial one of the issues I was asked
to determine by the defence was the question whether the
charges against A1 related to acts done by him in his
official capacity or in his private capacity while he served
as Republican President of this country.

The background to this issue as stated by the defence and
a matter which is now in the public domain is that prior to
the commencement of these proceedings then Republican
President Levy Patrick Mwanawasa SC (now deceased)
addressed the National Assembly on the removal of A1’s
immunity for purposes of criminal prosecution pursuant to
Article 43 (3) of the Constitution of Zambia. Subsequently,
the National Assembly passed a resolution removing A1’s
immunity and made him amenable to the jurisdiction of
the courts in this country so that he could be charged with
offences in respect of acts done by him in his personal
capacity while he held office as Republican President. The
resolution read:

“That in terms of Article 43 (3) of the Constitution of
Zambia this House do resolve that Mr. FJT Chiluba
who has held, but no longer holds, the office of
President may be charged with any criminal offence

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or be amenable to the jurisdiction of any court, in
respect of any act done or omitted to be done by him
in his personal capacity while he held office of
President and that such proceedings would not be
contrary to the interests of the State, and further that
the immunity available to him be removed.”

Following this resolution A1 was arrested and charged with
the offences I have just read out.

The question raised by the defence appears to derive from
their interpretation of Article 43(2) and (3) of the
Constitution of Zambia. These provisions state:

“43(1)…

(2) A person holding the office of President or
performing the functions of that office shall not be
charged with any criminal offence or be amenable to
the criminal jurisdiction of any court in respect of any
act done or omitted to be done during his tenure of
that office or, as the case may be, during the
performance of the functions of that office.

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(3) A person who has held, but no longer holds, the
office of President shall not be charged with a criminal
offence or be amenable to the criminal jurisdiction of
any court, in respect of any act done or omitted to be
done by him in his personal capacity while he held
office of President, unless the National Assembly has,
by resolution, determined that such proceedings
would not be contrary to the interest of the State.’
According to the defence, particularly in their submissions
at the “No case to Answer” stage, two types of immunity
under Article 43 of the Constitution are envisaged; the first
being immunity for acts done in the president’s private or
personal capacity (Article 43 (3)); and the second being
acts done during the discharge or while performing the
functions of his office (Article 43 (2)) which the defence
term as “official capacity”. They then go on to state that
“whilst under Article 43 of the Constitution the National
Assembly has power to remove the immunity of a person
who has held office as President, to allow for his
prosecution for acts done by him whilst he held office as
President, this power is limited to acts which such person
did in his private capacity and not acts he did in his official

J16

capacity or while performing the functions of his office as
President.” They argue that “for acts done by such person
while performing the functions of his office as President, he
enjoys absolute or infinite immunity and is not amenable
to the criminal jurisdiction of any court in Zambia.

The defence finally contend that the particulars of offence
disclosed in all the six counts against A1, show that he is
being charged for acts allegedly committed whilst acting as
President of the Republic of Zambia. It was submitted that
these charges against A1 for offences allegedly committed
whilst acting in his official capacity are legally incompetent
as he is not amenable to the criminal jurisdiction of this or
indeed any other court of Law in Zambia.

With due respect to the learned defence counsels, their
demonstration of the import of Article 43(2)(3) in my view
shows an unclear understanding of the Article. In my
view Article 43 (2) gives immunity to a sitting President
such that no legal action of whatever sort can be brought
during the President’s tenure. No where in this part of the
Article is the word “official” used. I understand the article
to simply grant absolute immunity for acts done whether

J17

in personal or official endeavours. Regarding Article 43(3)
my view is that it is simply saying that a former President
may be charged with a criminal offence or made amenable
to the criminal jurisdiction of any court for acts done or
omissions made during his tenure in his personal capacity
if the National Assembly resolves that the immunity
enjoyed during the said tenure be removed and that it is in
the public interest to do so. The effect of the two sub
articles is that a sitting President has absolute immunity
against legal action with respect to acts or omissions done
in the pursuit of his official functions even after leaving
office.

The President’s immunity may, however, be removed for
acts or omissions done in the pursuit of purely personal
endeavours albeit while holding the office of President after
he has left office.

In the last sense, therefore, the reference in the particulars
of offence to acts purportedly done “whilst acting as
President of the Republic of Zambia”, or to have “stolen
money which came into his possession by virtue of his
employment” do not denote that he was acting in his

J18

capacity as President of Zambia when he allegedly stole the
money or that the money came into his possession in his
capacity as President. The statements seek only to show
that when he allegedly stole the money he was the
President of the Republic of Zambia and that by virtue of
that position he came by or into possession of the money.

The particulars of the offences in the six counts with which
A1 is charged do not in my view imply anything else
beyond what I have said above. I am satisfied that the
offences and the particulars of offence were properly
framed and comply with section 137 of the Criminal
Procedure Code, Cap 88 of our laws.

I will reserve consideration of the question whether a
President is a public officer for later.

BURDEN OF PROOF WARNING

I now warn myself that the burden of proving the guilt of
each one of the three accused persons on each one of the
offences charged rests on the prosecution. The degree of
proof required is proof beyond reasonable doubt as it is in
all criminal cases. This standard assures the presumption

J19

that each one of the accused persons is presumed
innocent until proven guilty.

I will at this juncture address myself to the concerns raised
by the defence during the trial of this case and in the
submissions whether the accused persons will have
received a free, fair and impartial trial at the conclusion of
the proceedings in this court as they impinge on the
burden on the prosecution. These concerns emanate from
matters which are now of public repute that the
proceedings have been much publicized and attracted
some unrestrained adverse commentaries against the
accused persons from some persons and sections of the
media. As the learned defence counsels put it in their
submissions, the accused have “not only been tried in this
court but also in the media” and one might add in the
court of public opinion which it is common cause, is fed by
the media reports.

Now as early as 1973, the Supreme Court of Zambia, being
concerned then with the exercise of the power of the media
commented thus in the case of TIMES NEWSPAPERS
ZAMBIA LIMITED V KAPWEPWE (1973) ZR 292 at page

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306 lines 33-35: “Journalism is a profession calling for the
highest standard of integrity and responsibility. The news
media have tremendous influence, particularly in a
comparatively small country where competition between
the media is minimal.” This statement, although made in
the context of a civil action for damages for libellous
statements published in the Appellants’ (Times of Zambia)
newspaper, constitutes, in my view, an early warning
regarding the attitude of the courts in this country to
unrestrained adverse and prejudicial journalistic
tendencies.

A decade later in 1985, the Supreme Court of Zambia
made it clear that adverse pretrial publicity and comments
by the executive arm of Government that they desired a
conviction could render a trial unfair or a verdict unsafe or
unsatisfactory if these factors were shown to have
influenced the trial court. This was in the criminal case of

SHAMWANA AND SEVEN OTHERS V THE PEOPLE (1985)
ZR 41 at page 75 et seq (and the summarized holding at
item (v) thereunder).

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Lately, in two cases which precursed the present one the
Supreme Court made comments like “we do not subscribe
to trials by the press” (in FREDERICK JACOB TITUS
CHILUBA V. ATTORNEY GENERAL Appeal no. 125 of
2002 which confirmed the removal of A1’s immunity from
prosecution) and “… we disapprove any comments or
broadcasts from any quarter, on a matter pending in
court” (in DR. FREDERICK JACOB TITUS CHILUBA V
THE PEOPLE (2004) ZR 11 at page 19 lines 9 to 11,
where the Supreme Court in an application to change
venue was reacting to complaints that then Republican
President, Levy Patrick Mwanawasa had been making
comments and the Task Force on Corruption had
published in the media the “recovery of plundered”
national property, all which tended to prejudice or
prejudge the accused’s case.

It is a matter of record now that several times in this case
the defence by their counsel, did apply that I cite for
contempt the adverse commentators and publishers of the
prejudicial matters, in this later case, the Post Newspapers
Limited and its Managing Editor. My rulings based on a
point of law were always that I could not do so because of

J22

the view I took that the publications constituted contempts
not in the face of the court and which could not be dealt
with summarily under section 116 of the Penal Code. The
section authorizes dealing with the contempts covered
under subsections (1) (a) (b) (c) (d) and (i) summarily. For
ease of reference I reproduce section 116 of the Penal Code
aforesaid here under.

“116. (1) Any person who –

(a) within the premises in which any judicial
proceedings is being had or taken, or within the
precincts of the same, shows disrespect in speech
or manner, to or with reference to such proceeding,
or any person before whom such proceeding is
being had or taken, or
(b) having been called upon to give evidence in a
judicial proceeding, fails to attend to, or having
attended refuses to be sworn or to make an
affirmation, or having been sworn or affirmed,
refuses without lawful excuse to answer a
question or to produce a document, or remains in
the room in which such proceeding is being had or
taken after the witnesses have been ordered to
leave such room; or

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(c) causes an obstruction or disturbance in the course
of a judicial proceedings, or
(d) while a judicial proceeding is pending makes use
of any speech or writing, misrepresenting such
proceedings, or capable of prejudicing any person
in favour of or against any parties to such
proceeding or calculated to lower the authority of
any person before whom such proceeding is being
had or taken; or
(e) publishes a report of the evidence taken in any
judicial proceeding which has been directed to be
held in private; or
(f) attempts wrongfully to interfere with or influence a
witness in a judicial proceeding either before or
after he has given evidence, in connection with
such evidence; or
(g) dismisses a servant because he has given
evidence on behalf of a certain party to a judicial
proceeding; or
(h) retakes possession of land from any person who
has recently obtained possession by a writ of
court; or
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(i) commits any other act of intentional disrespect to
any judicial proceeding, or to any person before
whom such proceeding is being had or taken; is
guilty of a misdemeanor and is liable to
imprisonment for six months or to a fine not
exceeding seven hundred and fifty penalty units.
(2) When any offence against paragraph (a) (b) (c) (d) or (i)
of subsection (1) is committed in view of the court, the
court may cause the offender to be detained in
custody, and at any time before the rising of the court
on the same day may take cognizance of the offence
and sentence the offender to a fine not exceeding six
hundred penalty units or, in default of payment to
imprisonment without hard labour for one month.
(3) The provisions of this section shall be deemed to be in
additions to and not in derogation from the power of a
court to punish for contempt of court.
There is as it were, the defence of innocent publication and
distribution available to an innocent publisher and
distributor available under the Contempt of Court
(Miscellaneous Provisions) Act, chapter 38 of the Laws of
Zambia. Of course, other circumstances that amount to

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contempt of court are stated under that Act. Suffice to
state, however, that none are relevant to the issue under
discussion.
I do not intend to recant my stated position that the
comments and publications complained of could only be
dealt with as contempts out of court or not in the face of
the court. A contempt in the face of the court is defined to
broadly mean “any word spoken or act done in, or in the
precincts of, the court which obstructs or interferes with
the due administration of justice or is calculated to do so.”
(per paragraph 5 of Halsbury’s Laws of England, 4th
Edition, cited in SEBASTIAN SAIZI ZULU V THE PEOPLE
(1991) SJ (SC)).

The proper course in my view was for the complainants to
lodge a complaint with the Director of Public Prosecutions
who would have instituted investigations in the matter
before deciding once seized with the required evidence,
whether or not to prosecute. (see e.g. THE PEOPLE V
DAVID MASUPA (1977) ZR 226). In the event, however,
that I have misapprehended the position of the law, It is
my further understanding that there is no bar to the
prosecution of the alleged contemnors once a complaint is

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lodged notwithstanding that the proceedings are coming to
a close.

What is more important in my view, is that I am alive to
the fact that the negative publicity championed by the
executive and the press are not factors and have no place
in deciding the innocence or guilt of the accused persons.
I infact agree with the defence submission that “under our
legal system people are not convicted and should not be
convicted on the basis of public opinion”. I will add that
they are also not acquitted and should not be acquitted on
that basis.

The relatively old English case of RV ODHAM’S PRESS
LIMITED AND OTHERS EXPARTE ATTORNEY GENERAL
(1958) 3 ALL ER 494 is quite illuminating and I would
urge publishers of sensational and potentially
contemptuous materials to read it on how the law views
their trade.

I would like to make some observations regarding the
language used by the learned defence counsels in their
submissions on behalf of A2 and A3, particularly in the

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opening part, before I leave this section of the judgment. A
statement which I find especially in bad taste says “ That
the accused have been found with a case to answer and
put on their defence shows the partiality of this court and
that the prosecution has low regard for the intellectual
capacity of this court “ (at page 2, lines 6 to 9).

I am aware that the learned counsels were complaining
about the substance of my ruling at the “case to
answer/no case to answer stage”.

My position, however, is that the language was
intemperate, inflammatory and highly unlawyerly and
smacked of a contemptuous regard held by the learned
advocates, of this court. The context of the opening
statements is quite revealing in the foregoing sense.

I would like to remind the respective learned defence
counsels that under section 85 of the Legal Practitioners
Act, Chapter 30 of the Laws of Zambia, they are officers of
the Court and subject to the court’s direction. As officers
of the court, it is my understanding that they have a duty

J28

to uphold and respect the integrity of not only this court
but any court lawfully established.

It is a grave inconsistency to denigrate the integrity of the
court. In our legal system perceived and patent
miscarriages of justice are corrected through the process of
appeals. There is presently no known failure of this
system to justify the learned advocates utterances which in
my view amounts to contempt of court, an offence deemed
to be professional misconduct under Section 53 when read
together with section 52(j) both of the Legal Practitioners
Act.

The offensive language was clearly unnecessary, irrelevant
and did not add any value to their client’s case. I will,
however, consider the submissions to the extent that they
deal with the evidence which is pertinent to this case. I
will recommend that the Law Association of Zambia takes
up this matter so that it better guides its members on the
conduct in and attitude towards courts.

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No Onus of Proof on the Accused Persons

There is no onus on any one of the accused persons to
prove his innocence and if at the end of and on the whole
of the case, there is a reasonable doubt created by the
evidence given by either the prosecution or the defence, as
to whether any of the accused persons committed any of
the offences alleged, I shall resolve that doubt in favour of
such accused and give him its benefit.

THE INGREDIENTS OF THE OFFENCES

In order to establish the guilt of each one of the accused
persons, the prosecution must satisfy me beyond all
reasonable doubt upon each and every ingredient of the
offence charged. For convenience, therefore, what will be
said about the ingredients of the offence of theft applies to
all three accused persons save that more will be said
regarding the offences against A1 who is charged as a
public servant.

I acknowledge at this juncture the parties’ submissions
both at the case to answer stage and after the whole case
summarizing the case and setting out the law all which I

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have taken into account in this judgment as I deemed to
be relevant.

The Ingredients of the Offences of Theft

Section 272 of the Penal Code which creates the offence of
Theft states:

“272. Any person who steals anything capable of
being stolen is guilty of the felony termed “theft” and
unless owing to the circumstances of the theft or the
nature of the thing stolen some other punishment is
provided is liable to imprisonment for five years”

As submitted by the defence, section 272 does not deal
exhaustively with the offence of theft. The Penal Code has
provided further elaboration in section 265 which defines
“theft” this:

“265. (1) Any person who fraudulently and without
claim of right takes anything capable of being stolen
or fraudulently converts to the use of any person other
than the general or special owner thereof is said to
steal that thing.”

J31

This subsection brings out three major elements of the
offence viz; (1) fraudulent taking or converting to the use of
any person other than the general or special owner (2)
without claim of right (3) something capable of being
stolen.

Fraudulent taking or converting

This element expresses both the mens rea and the actus
reus of the offence of theft. It is further explained in
section 265 (2) of the Penal Code as follows:

“265 (1) …

(2) A person who takes or converts anything capable
of being stolen is deemed to do so fraudulently if he
does so with any of the following intents, that is to
say:
(a) an intent to permanently deprive the general or
special owner of the thing of
it;
(b) an intent to use the thing as a pledge or security;
(c) an intent to part with it on condition as to its return
which the person taking or converting may be unable
to perform;
J32

(d) an intent to deal with it in such a manner that it
cannot be returned in the condition in which it was at
the time of the taking or conversion;
(e) in the case of money, an intent to use it at the will
of the person who takes or converts it, although he
may intend afterwards to repay the amount to the
owner”.
The prosecution have submitted that whether or not one of
the foregoing intents existed must be tested by raising the
question, what was the intention of the accused persons at
the time of the taking or converting? In my view, this
question can only be asked if it is established that the
accused person actually took or converted which evidence
must be availed.

Subsections (3) and (5) which follow after subsection (2) of
section 265 of the Penal Code are also instructive in
connection with the ingredients and I reproduce them
hereunder:

“265 (1)…

(2) …

J33 J34

(3) When a thing stolen is converted, it is
immaterial whether it is taken for the purpose of
conversion, or whether it is at the time of the
conversion in the possession of the person who
converts it. It is also immaterial that the person who
converts the thing in question is the holder of a power
of attorney for the disposition of it or is otherwise
authorized to dispose of it.
(4)…
(5) A person shall not be deemed to take a thing
unless he moves the thing or causes it to move.
(6) For the purposes of this section “special owner”
includes any person who has a charge or lien upon
the thing in question or any right arising from or
dependent upon having possession of the thing in
question.”
It is always necessary to establish under the first element
as I have pointed out the action of the accused (the actus
reus) in the commission of the offence, whether the
accused took or he converted. In this sense, therefore, the
defence correctly posited that the first element presents
two situations so that one can only be found quilty of one

of them. This is so because the conjoining word “or” is
disjunctive in terms of section 4(4) of the Interpretation
and General Provisions Act, Cap 2 of the Laws of Zambia.
The prosecution are agreed on this statement of the law
and it is, of course, the law.

The learned defence counsels further sought to define the
words “take” and “convert” under the element. The
prosecution also addressed this aspect in their
submissions. Both sides appear to agree on the general
interpretation of the words. In respect of the word “take”
the point is made by both sides that on the basis of section
265 (5) of the Penal Code, it means the moving of the thing
stolen or the unlawful removal of the thing.

In respect of the word “convert” the defence relied for its
meaning on the dictum of Lord Atkin in LANCASHIRE
AND YORKSHIRE RAILWAY COMPANY V MACNICOL
(1918-1919) ALL ER 540, a civil case, that conversion to
him, was the “dealing with goods in a manner inconsistent
with the right of the true owner… Providing that it is also
established that there is an intention on the part of the
defendant in doing so to deny the owner’s right or to assert

J35

a right which is inconsistent with the owner’s right. But
that intention is conclusively proved if the defendant has
taken the goods as his own or used the goods as his own”

For their part the prosecution derived the meaning from
the East African case of LERUNYANI V. REPUBLIC (1968)

E.A. 107 where Sir John Ainsley, Chief Justice, said it was
“an act which results in a turning about, a change in the
control of a thing, in the ownership of a thing or in the
possession of the thing”.
In my view the two interpretations amount to one and the
same thing, that is, the assumption of rights over another’s
property which tend to exclude the owner from its
enjoyment.

In this sense, therefore conversion contemplates a
situation in which the thing or property comes in the
possession or control of the accused who appropriates it as
his own.

I am reminded at this stage to consider the effect of
sections 21, 22 and 23 of the Penal Code. These sections

J36

deal with the modes in which a person may be made a
party to an offence. For ease of reference I will set each
section down as it appears in the Penal Code.

“21 (1) when an offence is committed, each one of the
following persons is deemed to have taken part in
committing the offence and to be guilty of the offence,
and may be charged with actually committing it, that
is to say:

(a) every person who actually does the act or makes
the omission which constitutes the offence;
(b) every person who does or omits to do any act for
the purpose of enabling or aiding another person
to commit the offence;
(c) every person who aids or abets another person in
committing the offence;
(d) any person who counsels or procures any other
person to commit the offence”.
(2) in the case of paragraph (d) of subsection (1), such
person may be charged either with committing the
offence or with counseling or procuring its
commission. A conviction of counseling or procuring
the commission of an offence entails the same
consequences in all respects as a conviction of

J37

committing the offence. Any person who procures
another to do or omit to do any act of such a nature
that, if he had himself done the act or made the
omission, the act or omission would have constituted
an offence on his part, is guilty of an offence of the
same kind and is liable to the same punishment, as if
he had himself done the act or made the omission and
he may be charged with doing the act or making the
omission.

22. When two or more persons form a common
intention to prosecute an unlawful purpose in
conjunction with one another and in the prosecution of
such purpose an offence is committed of such a
nature that its commission was a probable
consequence of the prosecution of such purpose, each
of them is deemed to have committed the offence.
23. When a person counsels another to commit an
offence, and an offence is actually committed after
such counsel by the person to whom it is given, it is
immaterial whether the offence actually committed is
the same as that counselled or a different one, or
J38

whether the offence is committed in the way
counselled or in a different way, provided in either
case that the facts constituting the offence actually
committed are a probable consequence of carrying out
the counsel. In either case the person who gave the
counsel is deemed to have counselled the other
person to commit the offence actually committed by
him.”

It is the duty of the prosecution to establish that anyone of
the three accused persons participated in the taking or
converting as either the person who actually, in the
context of the offences charged, stole the money, or
enabled or aided the person who stole the money, or aided
or abetted the person who stole the money, or counselled
or procured the person who stole to steal the money all in
terms of section 21 of the Penal Code and has therefore
been properly charged as the person who stole the money.
It is worth noting that each activity is separated by the
disjunctive “or” so that clear evidence must be adduced to
support each action undertaken or the evidence must
clearly show that it supports the drawing of the one and
only inference that the accused took or converted (stole)

J39

the money in this case by anyone of those specific actions.
The words of Lord Morris are quite resonating, that “all
crime is personal and individual …” (in DPP V MERRIMAN
(1972) 3 ALL ER 42 at page 46 f). The individual deeds of
each one of the three accused persons must be proved
beyond all reasonable doubt.

In connection with the foregoing, I agree with the
prosecution’s submission to the effect that depending on
the established role of each accused in these charges, he
may be convicted or acquitted individually notwithstanding
that the form of the charge states that they acted jointly
and together. As the case of BENSON NGUILA V THE
QUEEN (1963-1964) ZNRLR 14 shows at page 17,
accused persons who are charged “jointly and whilst acting
together” can be convicted or acquitted severally (i.e.
individually or separately). This view applies even in the
case of a joint unlawful commission or omission as
contemplated under section 22 of the Penal Code (ante).
Section 23 merely seeks to explain that counselors to
commit crime would be held liable notwithstanding that
the offence alleged is different from that counselled or that
the offence was committed in a different way from that

J40

counselled so long as the resulting offence is a probable
outcome of carrying out the counsel. The Counsellor is
liable for the resulting offence in the manner envisaged
under section 21 above. Before leaving this section 1
acknowledge the submissions by the learned public
prosecutor which I have taken into account in this
judgment. The defence did not address this area but this
cannot disadvantage the accused in any way.

Without claim of right

The second element under sub section 1 of section 265 is
the taking or converting, the money in the present case
without claim of right. The Penal Code does not define this
phrase except for what is provided in section 10 thereof.
None of the parties has addressed this ingredient which
infact avails a defence to an accused person of a claim of
right to the thing alleged to have been stolen. In the case
of THE PEOPLE V. SAILAS (1973) ZR 335 (H.C.), the
accused was charged with the theft of an ox. His defence
was that the ox had been bought for him by his mother
some years earlier, that it had immediately returned to the
sellers village, which was nearby, and had been allowed to

J41

remain there because if it were driven back to the
accused’s village it would simply return again.

The trial court accepted that the accused believed that the
ox which he slaughtered had been bought by him and
belonged to him. On appeal it was held that the
complainants’ lack of consent to, or acquienscence in, the
taking of the ox did not assist the prosecution, and the
defence of claim of right succeeded.

In the words of Mr. Justice Silungwe (as he then was) in
the above case, the claim of right must be made in good
faith as one “made in bad faith” is indefensible on any
ground. One of the cases reviewed by his Lordship was the
Court of Appeal case of CHISHIMBA V THE PEOPLE
(1972) SJZ 114 in which it was said:

“The defence was a bonafide claim of right. This
defence is applicable not only in cases where an
accused person believes the property in question is
his or has become his but also where an accused
person honestly believes he has a right to keep or
deal with someone else’s property…”

J42

The court reinforced its view of the defence by relying on
Section 10 of the Penal Code which states:

“10. A person who does or omits to do an act under
an honest and reasonable, but mistaken belief, in the
existence of any state of things is not criminally
responsible for the omission to any greater extent
than if the real state of things had been such as he
believed to exist. The operation of this rule may be
excluded by the express or implied provisions of the
law relating to the subject”.

These views of the law regarding the defence of claim of
right appear to have been followed in cases such as

MWACHILAMA V THE PEOPLE (1972) ZR 286,
MUZYAMBA V THE PEOPLE (1975) ZR 83 (SC)

It is my view that in the case at hand the prosecution are
obligated to prove that when the accused persons took or
converted the monies whether as doers or secondary
parties they had no claim of right to it in the terms of the
law stated above.

J43

Anything capable of being stolen

The term “anything capable of being stolen” is defined by
section 264 of the Penal Code and of relevance to this case
are subsections (1) and (2) which state:

“264. (1) Every inanimate thing whatever which is the
property of any person and which is movable, is
capable of being stolen.

(2) Every inanimate thing which is the property of any
person, and which is capable of being made movable,
is capable of being stolen as soon as it becomes
movable although it is made movable in order to steal
it.”
The Oxford Advanced Learners Dictionary defines the word
“inanimate” to mean “not alive in the way that people,
animals and plants are…” This is not to mean that living
things are not capable of being stolen and subsections (3)
to (8) of section 264 make this clear but this is not of
relevance to this case.

In the case at hand the allegations are that the accused
persons stole money by means of cheques in respect of

J44

counts one and four (US$50,000 on cheque No. 4938), and
counts two and five (US$ 125,000, on cheque No. 6119).
The three accused persons are also alleged to have stolen
money in cash in counts three and six (US$148,000, in a
bank transfer to E. Florence of Scotland). Other amounts
alleged to have been stolen in cash are those in counts
seven (US$123,980.25), eight (US$27,906) and nine
(US$33,000), all paid to or for A1’s children, the basis
upon which he is charged, and those in counts 10
(US$205,000), eleven (K25,000,000) and twelve
K43,000,000). Both the prosecution and the defence have
dealt with the question whether money is something
capable of being stolen as hereunder.

The defence have accordingly argued in their evidence and
the submissions that in the case of the monies drawn on
the cheques, the money taken out belonged to the bank
and not the banks’ clients so that it was not possible to
charge the accused with the theft of it. The defence
demonstrated this view with English cases which included

R.V. DAVERNPORT (1954) 1 ALL ER 602 and FOLLEY V
HILL (1848) 2 HL cas 28, also reported in the (1843-60)
ALL ER 16. They also relied on the Zambian case of

J45

PETER KASANDA V THE PEOPLE (1978 ZR 190). The
prosecutions’ case as the evidence will show is that the
monies stolen in this case came from the Ministry of
Finance who instructed the Bank of Zambia to pay it in the
Zamtrop Account which money the accused are accused of
causing to be moved to the Meer Care and Desai account
at Natwest Bank in London and finally at the United Bank
of Zambia to the credit of Access Financial Services Limited
(AFSL). It is the defences’ position that the funds in these
banks (which included depositor’s funds) belonged to the
banks and not the banks clients and are, therefore, not
capable of being stolen.

The further position of the defence that even if it were held
that these funds did not belong to the banks, the
prosecution still have to prove that the accused either took
or converted the monies alleged, was the subject of my
earlier discussion when I dealt with the sub element of
fraudulent taking or conversion. It is, however, notable
that the effect of the East African cases relied upon by the
defence one of which took into account the English case of
RV. DAVENPORT and another the case of FOLEY V HILL
already cited above, is that whether the money through the

J46

cheque was taken or converted, if the cheque or the
money, should be seen to have been handled or possessed
by the accused expressly or constructively. It is also quite
plain that the decisions in the majority of these cases were
influenced by the view that money paid into or out of the
bank is the property of the bank and not the client.

Prominent among the cases cited from East Africa are

MENZOUR AHMED S/O SHEIK SALEH MOHAMED V R.
(1975) E. A. 386, SHIV KUMAR SOFAT V R. (1957) E.A.
840 and WEBANGIRA V. REPUBLIC (no citation provided
but from the High Court of Tanzania)

The State’s reaction to the defence’s postulations is that
the arguments premised on the ownership of money in the
bank belonging to it are irrelevant to the case at hand.
They argue that this case is about the fraudulent
conversion of funds under the control (constructive
possession) of the accused who converted the funds and
deprived the beneficial owner of it. They argue in this line
that it is irrelevant where the money stolen was located,
the question being; was there a dimonition of the credit
balances belonging to the beneficial owner ( in this case

J47

the government) and did the use of the monies by the
accused constitute fraudulent conversion? There would of
course be need to make a finding whether the accused
“used” the money at all. It is the prosecution’s position
that the authorities relied upon by the defence are
inapplicable in the case at hand.

Whether the law applicable to this case is that put forward
by the defence or the prosecution remains to be considered
after reviewing the evidence in this case.

What can be said about money under this element is that
it is a thing capable of being stolen whether it is in the
form of cash, a cheque, a bank draft” or other similar
orders, warrants or requests for the payment of money”
(per section 4 of the Penal Code). There can be no doubt
that money is property and property can be living or non
living (animate or inanimate) as I had earlier observed.
Inanimate property comprises physical possessions
(objects) and non physical objects (such as vested interests
in property, also called choses in action).

J48

In section 264 (1) there is a requirement that the property
stolen must belong to another person, of course by
“person” is meant a natural person and a non natural
person (associations of persons and corporate entities).
This requirement is satisfied by alleging who that person is
the evidence must establish the fact. Suffice to state that
property belonging to another means the property of any
general or special owner as contemplated under section
265 (1) and (2) (a) (b) of the Penal Code. It is also true that
a person may steal a thing capable of being stolen from the
owner of the thing, the person in charge of it or the
possessor of it. Since it is important to show that the
property stolen belongs to another whether special or
general, the owner of the thing must suffer the loss of it or
must complain about the loss otherwise there would be no
theft.

The ingredients of the Offence of Theft by Public
Servant

What has been said above regarding theft applied whether
a person is charged with theft perse or theft by public
servant. For the latter offence, however, the accused must
be proved to have been a “public servant.” It is quite clear

J49 J50

from the submissions that unlike the defence the (c) any civil office, the power of appointing to
prosecution did not spend time on this aspect of the which or removing from which is vested in any
offence. person or persons holding an office of any kind
included in either of the two last preceeding
The catch phrase in the offence under section 277 of the paragraphs of this definition; or
Penal Code is “Person employed in the public service and (d) any office of arbitrator or umpire in any
the thing stolen is the property of the Government … or proceeding or matter submitted to arbitration by
came into his possession by virtue of his employment… order or with the sanction of any court, or in
pursuance of any Act;
It is clear from the provisions of the section that it targets and the said term further includes:
public servants, properly so called, who steal Government (i) member of a commission of inquiry appointed
money or property and which although not belonging to under or in pursuance of any Act;
Government, they handle or deal with by virtue of their (ii) any person employed to execute any process of
employment. a court;
(iii) all persons belonging to the Defence Force;
Section 4 of the Penal Code defines “person employed in (iv) all persons in the employment of any
the public service” as any person holding any of the department of the Government, or a person in
following offices or performing the duty thereof, whether as the employ of any corporation, body or board
a deputy or otherwise, namely: including an institution of higher learning, in
(a) any public office or which the Government has a majority or
(b) any office to which a person is appointed or controlling interest or any director of any such
nominated by Act or statute; or corporation, body or board;

J51

(v) a person acting as a Minister of religion of
whatsoever denomination in so far as he
performs functions in respect of the notification
of intending marriage or in respect of the
solemnization of marriage, or in respect of the
making or keeping of any register or certificate
of marriage, birth, baptism, death or burial, but
not in any other respect;
(vi) a councilor of, or a person in the employ of a
local authority;
(vii) a person in the employ of a local authority.
The term “public service” is further explained in Section
103A of the Penal Code in similar terms as appear in
section 4 above. Indeed, Article 139 (1) of the constitution
of Zambia, Chapter 1 of our laws, defines the following
terms: “public office”, as “an office of emolument in the
public service”, “public officer” as “a person holding or
acting in the public office” and “public service” as defined
by an Act of Parliament. Sub Article (20) of Article 139
make exceptions of certain offices as follows:

“(2) In this constitution, references to offices in the
public service shall not be construed as including

J52

references to the offices of judges of the Supreme
Court and of the High Court, and to the offices of
Chairman, Deputy Chairman, and members of the
Industrial Relations Court.

(3)In this constitution references to an office in the
Public Service shall not be construed as including
references to the office of Attorney General, or a
member of any Commission established by this
constitution or by an Act of Parliament or to the office
of the Clerk of the National Assembly or any office in
the department of the Clerk of the National Assembly.

(4) For the purpose of this constitution, a person shall
not be considered as holding a public office by reason
only of the fact that he is in receipt of a pension or
other like allowance in respect of service under the
Government of Zambia or of its predecessor
Government.”
The interpretation and General Provisions Act, Chapter 2
of our laws does not define the terms “public office”,
“public officer” and “the public service” but merely refers to

J53

the definition in the constitution. However, the Service
Commissions Act, Chapter 259 of our laws defines “public
service” to mean the Civil Service of Zambia. Article 53 (2)
of the constitution is worth noting in that it deems the
Secretary to the Cabinet who is appointed under sub
Article (1) of Article 53 to be the head of the Public Service.
The question who qualifies to be a public officer by virtue
of being a person employed in the public service must be
determined in the light of the foregoing provisions.

The defence position as it were is that a Republican
President is not within the class of persons who can be
prosecuted for offences under section 277 of the Penal
Code. This issue will be resolved after the evidence is
reviewed.

There is much else to say regarding the ingredients of the
offences charged as is apparent from the parties’
submissions and the thrust of the evidence.

In support of their case, the prosecution elicited evidence
from thirty five witnesses. There were two hundred and six
documentary and landed property exhibits tendered into

J54

evidence. In defence A1 made an unsworn statement. In
law such a statement is not regarded as evidence as it is
not given on oath and is not subject to being tested in
cross examination. However, I will take it into account in
arriving at my decision in this judgment. For their part,
A2 and A3 gave evidence on oath. Between the three
accused persons they called nine witnesses. They
tendered in twenty six documentary and landed property
exhibits as well. I will now review the evidence.

Evidence for the Prosecution

The first witness (PW1) for the prosecution was Mr. Aggrey
Chimulu, the Registrar of Lands and Deeds in the Ministry
of Lands. This witness brought to court a computer
printout and a file for each one of two properties, one being
stand No. F441a/84 situated in Roma Township in the
Lusaka District (which for convenience I shall refer to as
the Roma Property) and the other being stand No. F
337a/45/A/3 situate in Kabulonga (hereinafter referred to
as the Kabulonga property.

The computer printout for the Roma property shows that it
was currently registered in the name of Zamdaell Limited.

J55

It also shows a transactional history that it changed hands
from JNK Zambia to Shonga Steel Limited before ending
with Zamdaell. The file contained assignments of the
property between these entities.

In the same vein, the printout relating to the Kabulonga
property shows that it was currently registered in the
name of Mums Delicatessen. It also showed a
transactional history that it changed hands from Robb M
and Company to Zamdaell Limited before finally resting
with Mums Delicatessen. Equally the respective file
contained assignments of the property between these
entities. There was nothing of significance that came out
of this witness’s cross-examination. All the documents
brought by PW1 to court were admitted in evidence upon
being tendered by the arresting officer, PW33.

PW2 was Mr. Namukolo Joseph Moola, a Senior Inspector
of Companies at the Patents and Companies Registration
office. This witness also came to court with printouts
relating to companies which he said he had been requested
to make searches for by the officers of the Task Force on
Corruption. These companies were Lusaka Trust and

J56

Corporate Services Limited (LTCS), Access Financial
Services Limited (AFSL), Mums Delicatessen Limited,
Zamdaell Limited and Leyland Daf. The printouts provided
details of the establishment of the companies, the
shareholding and the directors. The printouts, therefore,
show the following;
Name of Company Shareholders Directors

1. Leyland Daf -Lynx Export -Buchan
(incorporated in and Import Robertson
1963) Limited

Goody David
– Goody David John
John
2. Zamdaell Limited -AFSL

Chungu Aaron
(Incorporated on -Zamdaell -Kabwe Faustin
11.12.1991) International Mwenya
3. Mums Delicatessen – Malambo -Malambo
(Incorporated on Vincent Vincent
17.01.1996) – Malambo -Malambo
Evenie Evenie
Chiyumba
Chiyumba

4. Access Financial -Chungu Aaron – Chungu Aaron
Services Limited -Kaunda -Shamutete
(AFSL) Francis Edward
(incorporated on Hubert Kalonga
26.8.1994) -Kabwe Ireen

Munthali
Fwatulani
Watson

J57

– Rozan Jean
Pierre
– Kaunda Francis
Hubert
5. Lusaka Trust -Chungu Aaron – Chungu Aaron
And Corporate – Kabwe Faustin – Kabwe Faustin
Services Limited Mwenya Mwenya
(LTCS)
This witness was not cross-examined.
The printouts were later tendered and admitted into
evidence.

PW3 was Mr. John Jumba, a Valuation Surveyor holding
the position of Deputy Director in the Government
Valuation Department. The witness stated that he was
attached to the Task Force on Corruption and carried out
inspections of recovered properties for the purpose of
valuing them. He put the value of the Roma Property at
K630 million and that of the Kabulonga Property at K460
million. The witness also led the court to view the
properties which comprise residential houses. He also
testified that at the time of inspection PW13 was living in

J58

the house on the Kabulonga Property while PW14 was
living in the house on the Roma Property.

In cross examination the witness said that he was
instructed to value the house by officers of the Task Force
on Corruption in October 2002.
Nothing
else of
significance was elicited from this witness.

The witness was presented as both a witness as to fact and
as an expert. To the extent that he testified as an expert,
the law is clear. A statement of opinion on any relevant
matter calling for expertise may be made by a witness
qualified to give such an expert opinion. Such opinion
may guide the court to arrive at its own conclusions. In
CHUBA V THE PEOPLE (1976) ZR 272 the Supreme
Court of Zambia held that “the evidence of a handwriting
expert (and of all other expert witnesses) is an opinion only
and the matter is one on which the court has to make a
finding.” It was also held that “in addition to his opinion,
the expert should place before the court all the materials
used by him in arriving at his opinion so that the court
may weigh their relative significance.

J59

The Supreme Court (in CHUBA) condemned situations
were experts make peremptory observations which amount
to giving “ a direction by the expert to the court.” In the
CHUBA case the following statement by the expert was
held to be improper:

“these similarities (in handwriting) indicate with
a strong degree of certainty that the writer of
the specimen writing in column (b) is one and
the same person who wrote the disputed
cheque. It would be wrong to assume
otherwise.”

It is clear from the foregoing the witnesses who hold
themselves as experts must give their opinion evidence in
an unaffected manner, devoid of bias. In Blackstone’s
Criminal Practice for 2002 the following statement is
made at paragraph F10.1 (b):

“… if there is a relationship between the proposed
expert and the party calling him which a reasonable
observer might think was capable of affecting the
views of the expert so as to make the expert unduly
favourable to that party, his evidence should be

J60

excluded, however unbiased his conclusions might be,
on the grounds of public policy that justice must not
only be done but must be seen to be done

(LIVERPOOL ROMAN CATHOLIC ARCHDIOCESAN
TRUST V GOLDBERG ( 2001) 151 NLJ 1093)”

What I have said above applies to PW3 and other
prosecution witnesses who were held out as experts. In
relation to P3, it is his confessed position that he was
attached to the Task Force on Corruption who instructed
him to carryout valuation of “recovered” property. Without
doubt there is a relationship between the witness and the
state as consituted in the Task Force on Corruption which
called him as a witness. I have accordingly put myself on
enquiry whether this relationship is such as “ a reasonable
observer might think was capable of affecting “his views so
as to make him unduly favourable to the State.”
Fortunately, for the witness and the State, the relevance of
this witness’s opinion evidence is the value of the
properties in respect of which there is no contest from the
defence. I do not accordingly find it necessary as well to
review the process he employed in the valuation exercise.

J61

Suffice to state that I accept the witness” opinion as to the
values of the two properties at the time of the valuation.

PW 4 was Mrs. Maria Musombo Katepa an Inspector of
Banks at the Bank of Zambia. Her testimony was that she
was appointed caretaker of the United Bank of Zambia
(UBZ) after the Bank of Zambia took possession of it in
July 2002 and as such was in charge of all the assets and
records of the Bank. She stated that the defunct bank
(UBZ) had records of a cheque payment by the AFSL from
its account No. 200053028 with the bank in the sum
US$50,000 to Standard Chartered Bank. She identified
the cheque which was shown to her. She stated that she
availed (to officers of the Task Force on Corruption)
transmission copies and a copy of the instruction from the
AFSL to transfer US$148,000 to one E. Florence of
Scotland.

She also provided to the officers bank statements relating
to two accounts held by the AFSL with the Bank, one of
which was numbered 200053028 and the other numbered
200053952. Both accounts were dollar denominated.

J62

PW4’s attention was drawn to and she identified several
transactions in the statements as follows:

On 14th May 1998 US$242,404.69 was received from Meer
Care and Desai. The money was not received on 23rd may
1998 as stated in the prosecution’s submissions. On 28th
May 1998, US$50,000 was withdrawn from the account. It
is this payment to which according to the prosecution the
cheque for US$50,000 paid to Standard Chartered Bank
relates. The cheque has an issue date of 14th May 1998
and a rubber stamped Standard Chartered Bank date of
20th May 1998, and so it appears from the narration which
shows that the cheque number 4938 shown against the
transaction of 28th May 1998 is the same as that on the
cheque issued on 14th May 1998.

On 25th June 1998, US$160,000 was received into the
account from Meer Care and Desai. On 8th July 1998 and
not 30th June 1998 as stated by the prosecution in their
submission, the account was debited with the sum of
US$125,000 through a cheque number 6119 paid to
Messrs D.H. Kemp and Company

J63

On 17th December 1998 US$149,980 was received into
account No. 200053052 from Meer Care and Desai. On
22nd December 1998, US$148,030 was paid via telegraphic
transfer to E. Florence.

The witness stated also that on 4th December 1999, the
account received US$199,980 and on 13th July 2000 it
again received US$236,000 both from Meer Care and
Desai.

In cross-examination PW4 replied that the statements were
requested for by Mr. Machila (PW33) of the Task Force on
11th November 2004 and he had generated them before
coming to court that day on 18th November 2004 the
witness stated that she did not know whether the
documents referred to in her testimony where made at the
UBZ as she was not working there at the time. She did not
know whether they were altered. She replied also that the
statements showed other deposits into the accounts. She
stated that before the receipts on 25h June 1998 and 4th
December 1998 the account showed credit balances well
above the subsequent drawings.

J64

She saw nothing unusual in the transaction and that no
payments were made in favour of any of the three accused
persons. She stated that the funds in the two accounts
belonged to the AFSL, the account holder at UBZ which
had control of the funds. She said that the cheque for
US$50,000 did not show that it was the property of the
Republic of Zambia Government. The cheque belonged to
the AFSL.

In re-examination she stated that the AFSL knew the
purpose of the transactions and that the signatories could
explain why money was being paid. She said that before
the receipt of the US$242,404.69 there was a credit
balance of US$65,970.20 and that there was a balance of
US$121,379.73 before the US$149,980 was received. She
said that the general ledgers at the AFSL would explain
how funds were being moved. The evidence of this witness
was relevant to the first six counts and counts ten, eleven
and twelve.

PW5 was Mr. Don Maila. At the time of his testimony the
witness was occupied as Managing Director for Celpay
(Zambia) limited. He testified however, that he had worked

J65

for the AFSL from 1996 to 2002 as General Manager –
Management Consultancy Services.

The witness testified that he signed the instruction letter to
the UBZ to transfer US$148,000 to E. Florence on the
instructions of A3.

In Cross examination, PW5 stated that he signed the
instruction letter to the bank with another person but that
A2 and A3 did not sign. He said, however, that he
formalised A3’s instructions to pay by signing the
instruction letter to the bank.

In re-examination, the witness stated that by formalization
he meant that there was a trail to the transaction.

I note that this witness worked with A2 and A3. I,
however, find nothing suspect in his testimony which may
suggest bias or any other interest adverse to the defence
case.

PW6 was Mr. Joseph Munyoro, a Senior Inspector at the
Bank of Zambia working in the Non Bank Financial

J66

Institutions Supervision Division. He said that one of the
Division’s duties was to carry out onsite inspections of non
bank financial institutions to ensure compliance with
prescribed accounting standards. He stated that the AFSL
was a non bank financial institution.

The witness testified that in December 2002 he was part of
a team of Inspectors from the Bank of Zambia that carried
out onsite inspection at the AFSL and its subsidiary,
Access Leasing Limited. He said that after the exercise he
participated in preparing a report which was given to the
Directors of the AFSL and required them to respond to
certain questions. The Directors of the AFSL duly
responded to the report. These reports were admitted into
evidence despite objections from the learned defence
counsels on the ground that the Bank of Zambia Report
was based on assumptions and the information of third
parties who were not available for cross-examination. PW6
admitted during cross examination that the Bank of
Zambia undertook the inspection influenced by allegations
made in the newspapers, particularly the Post Newspaper
article of 25th June 2003 titled “Analysis of Chiluba’s
Matrix of Plunder.” The witness stated that they

J67

investigated some of the allegations in the captioned story
relating to the three accused persons.

The learned defence counsels further contended that
materials within the reports and the conclusions in it were
highly prejudicial to the proceedings.

The learned public prosecutor responded that the report
was prepared by PW6 (with the other inspectors) and that
the Directors’ responded to it by their own Report. As I
have said, I ruled in favour of admitting the documents on
the premises that PW6 co-authored the Report and there
was a response to it by the Directors of the AFSL.

I have now read through the report of the Bank of Zambia
and the Directors’ Response. I have formed the opinion
that the materials within it do no comport to the conduct
of a fair trial. The Report consists of all those things
objected to by the defence. Further the Inspectors not only
made conclusions regarding the purported misconduct of
the AFSL and its principal officers and shareholders, they
also recommended the actual prosecution of A2 and A3 for
“engaging in unsafe and unsound practices as well as

J68

various other breaches of the law for having allegedly
benefited from the Zambia Security Intelligence Services
funds by the Bank of Zambia and the National Task Force
on Corruption.”

It is trite knowledge that in our legal system the trier of
facts and the law is the Magistrate, in a case such as the
present. Evidence of materials that tend to prejudice the
guilt of the accused will obviously compromise the conduct
of a fair trial, the court has an inherent power and
overriding duty in every case to ensure that the accused
receive a fair trial and as such has a discretion to exclude
otherwise admissible prosecution evidence if, in its
opinion, its prejudicial effect out weighs is true probative
value.

I am of the view that the testimony of PW6 so far as it is
based on his team’s Inspection Report should be excluded
from the prosecution’s evidence. I am certain that no
miscarriage of justice will be caused. After all, at this trial,
the state has an opportunity to prosecute their case using
the evidence of witnesses who perceived the issues alleged.

J69

I realize, that in terms of procedure, the decision to
exclude otherwise admissible evidence is made before the
evidence has been adduced and not after. A corollary may,
however, be drawn from the English case of ALLEN (1992)
Crim L.R 297 where it was said that, where a judge has
excluded evidence on which the prosecution propose to
rely, but at some later stage in the trial, in his opinion the
balance of fairness shifts, he has a discretion to reconsider
his ruling and admit the evidence.”

The situation I am faced with is quite opposite to the
principle in the ALLEN case but I am certain that the
converse of it is applicable in the present case and as I
have said no miscarriage of justice will be caused if I
exclude the Bank of Zambia Report and the Directors’
Response which I now do exclude. I realize, further, that
by this action I have equally excluded all other
documentary exhibits that came in by way of copies
appended to the Report. The prosecution were under an
obligation to produce the original documents, so far as is
relevant to this case, upon which the inspectors based the
conclusion in the report.

J70

I have endeavoured to see whether there is in PW6’s
testimony evidence which is independent of the two
excluded reports and which perforce, I must consider. The
following is the evidence: the witness told the court that
he spoke to A3 who told him that, DGH Poly Products was
owned by DeGania Holdings Limited (99%) and Mr. Attan
Shansonga (1%). He said that the AFSL maintained a
dollar and a kwacha account for a client called ZAMIN. He
identified two documents as showing the status of the
Zamin kwacha and Dollar Accounts. He said that these
documents were given by A3 to his team.

The witness highlighted dollar denominated transactions
which were in excess of the limits prescribed by the Bank
of Zambia. He pointed out a receipt of US$100,000 on 14th
May 1998 from Meer Care and Desai and a payment on the
same day of US$50,000 to Standard Chartered Bank for
property. The Zamin Dollar Account also shows another
notable receipt of US$160,000 from Meer Care on 25th
June 1998 and the witness pointed out a payment of
US$125,000 to DH Kemp and company for property.

J71

Other transactions picked out by the witness were a
receipt of US$149,980 from Meer Care on 17th December
1998 and a payment to E. Florence for property of
US$148,030 on 22nd December 1999 from Meer Care and
another receipt of US$205,000 on 13th July 2000 also from
Meer Care. The forgoing transactions are no doubt the
same ones testified to by PW4, the Caretaker of UBZ where
the AFSL maintained an account into which these funds
were received.

PW6 said that he retrieved the documents relevant to this
case. He produced five other documents.
The
first
document was the original copy of a facsimile message
sent to Mr. JP Rozan by A2 captioned “ACCESS SHARE
CAPITAL STRUCTURE”. In the message dated 16th
January 1997, A2 advised Mr. Rozan on the need to
increase the share capital. He also stated “I have not yet
found a way to deal with the allocation of shares to AC
except perhaps to create a fictitious loan in the company
which we can then write off over 3-4 years as a company
expense. I trust you are in agreement with this but I shall
do further research on this and advise you if changes are
needed.

J72

The next document is a payment voucher in favour of
Pukupan of US$10,000. It is dated 20th December 2000.
Other details show that the payment was to be effected
through the UBZ and was drawn on the AFSL client
account. There are signatures which I cannot read and
there was no evidence led as to the authors.

The third document is a payment requisition for
US$10,000 in favour of Pukupan. It is dated 20th
December 2000 and written by E. Kasanda to I Chitundu
with the subject “AFSL client account 0048 (Pukupan)”.
The third document is an AFSL Journal Voucher dated
14th August 2000 but for the month of May 2000. It has
several entries depicting debits and credits.

A notable entry is one on the credit side in the sum of
K70,371,333.22 in favour of AFSL client account No. 7069.
In the section of the voucher where this transaction is
recorded there is a debit entry against DGH – LONDON
Deposit Account No. SC 067 for K607,791,572.59. Against
this are drawn sums of K147,000,000 in favour of DGH –
M/C Account No. SC 065, AFSL Client Account No. 7069

J73

for K70,371,333.22 and Dollar Purchase Account No. 7103
for K390,420,239.37. The three amounts total
K607,791,572.59 held against the DGH – London Deposit
Account. The rest of the entries in the Journal Voucher do
not appear to be relevant to this case. The last document
is a note from Mr. Dixhoorn (PW32) to Mr. David
Thompson dated 18th December 2000 with the subject
“Pukupan.” The text of the note states:

“Dear Aaron and David,
Following our meeting of Saturday, I would like to
request you to transfer your contribution to Pukupan
as soon as possible to Standard Chartered Bank
Ravenscourt Zambia Limited
Account No. 320171 071 900
Please confirm the transfer to me.
Regards, Frank”

In inked handwriting there are two other statements on the
note:

“IC
Please pay and debit AFSL client account
Signed”

And

J74

“cheque payable to Pukupan debit account 0048 AFSL
client account
$10,000
(signed)”

It is imperative to state that having excluded PW6’s
testimony relating to the Inspectors’ Report and the
Directors Response these documents required explaining
otherwise I shall be at large to draw whatever conclusions
from them. This I believe was the purpose of PW31.

In cross examination, PW6 replied that Mr. Maulu
Hamunjele (PW31) was an officer of the Bank of Zambia
seconded to the Task Force. He stated that when the Bank
of Zambia took over the AFSL, the latter took the matter to
court and the Bank of Zambia was defended by Mr.
Mutembo Nchito, the lead prosecutor in this matter. He
said that inspections were being carried out since the
establishment of the AFSL between 1995 and 2002 and no
irregularities were discovered. He also stated that neither
the Director General of the ZSIS nor the Auditor General
raised a complaint of missing funds. This appears to give
credence to PW6’s admission that the Bank of Zambia

J75

Report was motived by press reports. He said that he had
no experience in and was not competent to comment on
the management of ZSIS funds.

The witness replied that he did not search for other records
regarding the payment to E. Florence appearing in the
Zamin Client Account. He said that there was no evidence
of money paid to A1 or that A1 was a client of AFSL or that
he stole money from the AFSL.

In re-examination, PW6 replied that A3 should explain the
entries in the Zamin Dollar Account.

In view of the admissions made by PW6 on how they were
influenced by the newspaper reports regarding the “matrix
of plunder”, I remind myself that this may well be a
witness with an interest to serve. I note, of course, that
the witness in re-examination changed course and denied
that the inspection was influenced by the newspaper
reports. A witness who fails to take a confirmed position
on an issue is certainly not trustworthy. Even if PW6 is
not a person with an interest of his won to serve which I

J76

maintain he is, his credibility is adversely affected by his
shifty position.

PW7 was Mr. Dominic Luther Yeta Sichinga, Chief State
Advocate, at the time of his testimony, in the Attorney
General’s Chambers. The witness was called to produce
and did produce an Affidavit used in a civil matter between
PW13 and PW14 on one hand and the Attorney General on
the other in proceedings for Judicial Review.
This Affidavit was again admitted against the protestations of
learned defence counsels in this case. There is need for
caution when considering such evidence for we have here
statements made on oath for purposes of a civil proceeding
being used in a criminal trial. The general rule is that
witnesses must themselves give direct testimony unless
they are deceased or are so ill as to be unable to attend
court in person or that their infirmity or situation is such
that a commission for the examination of the witness
cannot be conveniently issued under section 152 of the
Criminal Procedure Code. As it transpired in this case PW
13 and PW14 were not incapacitated and were infact called
as witnesses.

J77

The affidavits are different from say one tendered in a
prosecution for perjury where the offence is proved by
exhibiting the contents of the affidavit. (see eg. F8.25 of
Blackstone’s Criminal Practice 2002) or contempt of
court where likewise the affidavit establishes the contempt
(eg. ELIAS KUNDIONA V THE PEOPLE (1993) SJ 49 (S.C.)

The learned authors of Blackstone also observe at
paragraph F15.3 that a statement made on oath in other
proceedings is heresay, and may only be received as
evidence of its truth, under an exception to the rule” (per
BERKELEY PEERAGE case (1810 4 comp 401)

Cross and Wilkins outline of the Law of Evidence,
Butterworths, London, 1996, however, make the position
clear when they state at page 122 under the section
dealing with affidavits and depositions that “the transcript
of evidence given in different proceedings between the
same parties is admissible under an exception to the
hearsay rule… in criminal cases, at common law provided
the subject matter is substantially the same and the
witness is unable to attend the second trial through death
or illness. The foregoing authorities appear to me to

J78

concern instances when the transcript of the evidence is or
ought be introduced through a court official who has
custody of the record.
I
believe that the position is
different if the evidence in the transcript has come to the
hand of a third party by whatever means. In this case the
rule that admits relevant illegally obtained evidence
applies.

In the present case the affidavit which PW7 sought to put
on record came to his hand by virtue of the office which he
held during the proceedings to which the affidavit relates.
I think in these circumstances the affidavit was property
admitted.

According to PW7 the affidavit dealt with the Kabulonga
and the Roma properties given to PW13 and PW14
respectively allegedly as remuneration for representing A1
in the Presidential Election Petition. A perusal of the
affidavit shows that it exhibits the purported remuneration
agreement between A1 on one hand and PW13 and PW14
on the other. The text of the agreement appears as follows:

“This Agreement made this 7th day of February 1997
Between Messrs MALAMBO and SILWAMBA of the

J79

first part (hereinafter referred to as) THE LEGAL
PRACTITIONERS and FREDERICK JACOB TITUS
CHILUBA ESQUIRE, of the second part (hereinafter
referred to as the CLIENT”

WHEREAS Messrs Vincent B MALAMBO, MP and Eric

S. SILWAMBA, MP are LEGAL PRACTITIONERS
practicing under the name and style of Messrs
MALAMBO and SILWAMBA, THE CLIENT has
retained the said LEGAL PRACTITIONERS to
represent him in the PRESIDENTIAL ELECTION
Petition in the Supreme Court of Zambia wherein THE
CLIENT is the RESPONDENT.
That Pursuant to the provisions of sections seventy-six
(76) and eighty (80) of the LEGAL PRACTITIONERS
ACT, Chapter thirty (30) of the Laws of Zambia, the
Parties have agreed that the remuneration in respect
of this contentious business shall be two residential
properties in a suitable area or areas in the Lusaka
District of the Lusaka Province of the Republic of
Zambia.
Signed

J80

VINCENT B. MALAMBO, MP

ERIC S. SILWAMBA, MP
AND
FREDERICK JACOB TITUS CHILUBA Esquire”

In cross-examination, PW7 replied that the affidavit was
not the complete record of the proceedings in the matter.
He said that A1’s reaction to the contents of the affidavit
was never solicited. He said that the agreement was not
witnessed as it should have been. He could not say
whether A1 signed the document. He said that he was
aware that a practitioner may be paid in kind (as opposed
to money). The agreement did not say the houses were to
be purchased using Government funds.

In re-examination, the witness replied that the affidavit
sought to assert the proprietary rights of the deponents in
the properties in question. He did not consider the
agreement to be strange. This witness’s evidence was
relevant to courts one through to six.

J81

PW8 was Mr. Fidelis Joseph Phiri, Branch Support
Manager at Standard Chartered Bank, North End Branch,
Lusaka. The witness confirmed that a cheque for
US$50,000 was received by his bank for the credit of
Shonga Steel Limited. He brought to court documentation
to that effect.

In cross examination the witness said that he did not know
the reason why Shonga Steel were being paid. He was not
re-examined. His testimony was, relevant to counts one
and four.

PW9 was Mrs. Magaret Kapuma Phiri a Book Keeper at
Messrs DH Kemp and company. She confirmed that her
firm received a cheque for US$125,000 for their client
Shonga Steel. She brought several documents that pertain
to this transaction. These documents were admitted
inspite of objections from the learned defence counsels. I
have gone through my ruling at the end of which I
admitted the documents. I maintain that the documents
were properly admitted. However, in consistency with my
ruling I will have regard to the matters stated in section 5

J82

of the Evidence Act, Chapter 43 of our laws, in assessing
the weight to be attached to PW9’s documentary evidence.

For convenience, I reproduce hereunder, section 5 of the
Evidence Act:

“5(1) In estimating the weight, if any to be attached to
a statement admissible as evidence by virtue of this
Act, regard shall be had to all the circumstances from
which any inference can reasonably be drawn as to
the accuracy or otherwise of the statement, and
particularly to the question whether or not the person
who supplied the information contained or recorded in
the statement did so contemporaneously with the
occurrence or existence of the facts stated, and to the
question whether or not that person, or any person
concerned with making or keeping the record
containing the statement, had any incentive to conceal
or misrepresent the facts.

(2) For the purpose of any rule of law or practice
requiring evidence to be corroborated or regulating the
manner in which uncorroborated evidence is to be
treated, a statement rendered admissible as evidence

J83 J84

by this Act shall not be treated as corroboration of 2. Access Financial Services of Lusaka will
evidence given by the maker of the statement. Finance the purchase for their client.
3. The buyer through Access Financial Services
PW9, presented the following documents by order of will pay an initial deposit of 50,000 US dollars
chronology of events or date as the case may be; a letter and the balance after legal formalities are
dated 6th May 1998 from Shonga Steel to Messrs DH Kemp completed (my understanding is that when we
and Company which reads: sign a contract of Sale Agreement)
“6th May 1998
D.H. Kemp and Company However, for the purpose of the correct
Advocatesdescription of the property, I attach a Photostat
P.O. Box 31000 copy of the Title deeds, ( the original is kept by
LUSAKAStandard Chartered Bank (Z) Limited Head
ATTENTION; MR. MUBONDA Office.
Dear Sirs,
Please treat this as urgent and Access Financial
RE: SALE OF PROPERTY NUMBER 84 MUTANDWA Services have informed us that their Lawyers
ROAD ROMA TOWNSHIP LUSAKA are CAVE MALIK AND COMPANY. Telex Fax
I hope you have been given my message which I left Number 610395 Ndola and the person dealing
with your secretary regarding the sale of our property. with the matter is Mr. THAKER who will, I am
Kindly handle all the necessary legal formalities as told give you the details and names of the
follows: person to whom the Title deeds will be.
1. We have agreed that the sale price is 175.000 Our Mr. P. Jayakristinan will discuss with you
US Dollars details of payment of your fees.

J85

Yours faithfully
SHONGA STEEL LIMITED
(signed)

N.B. CHISASHI
CONTROLLER-PERSONNEL SERVICES.
The next document is a letter from Messrs Access
Financial Services Limited to D.H. Kemp and Company
dated 8th May, 1998 as follows:

“May 8th, 1998
D H Kemp and Company
Advocates

P.O. Box 31000
LUSAKA
Attention: Mr. Mubonda
Dear Sir,
SALE FO PROPERTY NO. 84 MUTANDWA
ROAD, ROMA TOWNSHIP
Further to your letter of May 6, 1998, and our
subsequent discussions concerning the sale of
J86

the above property, we advise the details of the
purchaser as follows:
Name: Zamdaell Limited
Box No: 35490, Lusaka
Please contact our lawyers, Cave Malik and
Company of Ndola on telephone No. 02610393/4 for legal formalities.

Yours faithfully
(signed)

A. Chungu
Executive Director”
There is then a faxed letter from Shonga Steel to the
Accounts Relationship Manager dated 13th May 1998
under the hands of D.C Mulaisho, whose title is Chairman
and P. JAYAKRISHNAN whose title is Finance Manager.
The letter contains an instruction to the addressee that the
US$50,000 initial deposit should be retained by the bank
until the completion of all legal formalities, payment of the
balance of US$125,000 and handing over of the house.
The subject of the letter was the Roma property.

J87

In a letter dated 15th May 1998 Messrs D.H. Kemp wrote to
Messrs Cave Malik and Company that under cover of that
letter they were sending them a duly engrossed contract of
sale in duplicate for execution by the purchaser.

On the same day 15th May 1998 Messrs Cave Malik and
Company sent a letter to Messrs D.H. Kemp and Company
endclosing a cheque for US$ 50,000 payable to Standard
Chartered Bank Limited as per clause 8 of the special
conditions of the agreement which their client had duly
executed and they had witnessed.

On 2nd June 1998 Messrs D.H. Kemp wrote to Messrs Cave
Malik and Company stating that they required copies of
the National Registration Cards or passports of the two
shareholders of Zamdaell, Mr. I.B. Daell and Niels Daell.

Messrs Cave Malik and Company responded in a letter
dated 5th June 1998 and it is necessary to reproduce it as
below:

“5th June 1998
Messrs D.H. Kemp and Company
Suez Road

J88

P.O. Box 31000
Lusaka
Dear Sir,
re: SHONGA STEEL LTD-SALE OF S/D 84 OF FARM
NO. 441a ROMA TOWNSHIP, LUSAKA TO
ZAMDEALL LIMITED

Please refer to your fax letter dated 2nd instant.
Should you kindly peruse the documents sent by us,
you would note that Messrs I.B
Thoger Deall and Niels Deall had already transferred
their shares to ZAMDAELL International and
CHEETAH International and Access Financial
Services Limited. You would also notice that Messrs I
S Thoger and Niels Thoger resigned as Directors and
new Directors Messrs Faustin Mwenya Kabwe and
Aaron Chungu were appointed new Directors of
Zamdaell Limited.

In the view of the above we are herewith enclosing the
shareholding of Access Finance limited and
photocopies of National Registration Cards of the two
Directors who are the shareholders also in Access

J89

Finance Limited who is one of the shareholders of
Zamdaell Limited itself the present purchasers of the
property under sale.

We hope everything is clear.
Should you feel any other clarification kindly don’t
hesitate to contact the writer.

Yours faithfully
CAVE MALIK AND COMPANY
(signed)
Per R.C. MITTAL”

On the same day Messrs D.H. Kemp and company sent
under cover of a letter documents by way of completion of
the sale.

On 2nd July Messrs Cave Malik and Company sent under
cover of a letter cheque No. CA 006119 for US$125,000 to
Messrs D.H. Kemp and Company.

On 8th July 1988, the Finance Manager for Shonga Steel
wrote to DH. Kemp and Company advising that possession

J90

of the house would only be given after the cheque had been
cleared.

On 14th July 1998, N.K. Mubonda (of D.H. Kemp)
forwarded the payment less bank charges to Shonga Steel
together with their bill of costs.

PW 9 also produced a “Request to Bank Cheque” form as
well as a list of shareholders for “AFSL” as at 30th June,
1997, A2 and A3’s names appear on the list. Other
shareholders shown are Mrs. Irene Kabwe, Societe
Commerciale De Metaus Ex. Minerais, Societe Miniere De
Trebas and Francis Hubert Kaunda.

Lastly the witness produced the Dollar Account for Messrs,

D.H. Kemp and Company in which a sum of US$ 125,000
is recorded as a receipt on 3rd July, 1998 on folio 36. The
witness stated that she did not handle the US$ 50,000.
In cross examination PW 9 replied that none of the
documents show that any of the three accused received the
US$125,000. She stated that Mr. Newton Kabanda
Mubonda was seized with the matter at D.H. Kemp but

J91

that her testimony was based on information that she
came across.

In re-examination the witness replied that the purchase
money come from the AFSL.

PW 10 was Mr. Enock Mwale, Head Treasury and Credit at
AFSL at the time of his testimony.

The evidence of this witness shows that at the time of his
testimony the Bank of Zambia had taken over the affairs or
business of the AFSL. He stated that he was recalled by
the Bank of Zambia to assist in the management of the
company after it took over.

The witness’s relationship with the Bank of Zambia
especially in the light of what I said concerning PW 6’s
Inspection Report reminds me to approach his testimony
with caution. He may well be a witness with an interest of
his own to serve. He worked with or under A2 and A3 at
the time of most of the transactions in this case. He may
therefore give evidence tainted with the desire to show his
own innonce.

J92

The major part of PW 10 was a reaction to interviews he
had with officers of the Task Force on Corruption who
directed him on what they wanted. He may, therefore, not
have fully been able to express himself as to what his
experiences were. In any case I must look for supporting
evidence before I reply on him.

PW 10 talked about the treatment of funds received and
paid out by the AFSL. He stated generally that accounts
were maintained for the various customers that the AFSL
dealt with and that it was possible to locate clients
accounts on the (accounting) system. He stated that the
AFSL was involved in managing client funds in respect of
which ledgers or accounts were maintained. He said that
he used to receive instructions from Mr. Sebastian
Mathew, the General Manager and occasionally from A2
and A3.

PW 10 testified that he was interviewed by officers from the
Task Force on corruption regarding the sums of money in
counts one through six and ten to twelve. He said that he
gave the officers records pertaining to these monies which

J93

comprised thirty two documents, some of which were
handwritten and others computer generated. He said that
as Head of the Finance Department he was in charge of the
(accounting) records.

The documents referred to by the witness were admitted
into evidence after hearing objections from the defence. I
maintain my ruling regarding the admissibility of the
documents. The witness discussed the documents in the
manner following below.

In relation to the offence in counts one and four, on 14th
May, 1998, the AFSL acknowledged the receipt of US$
242,404.69 from Meer care and Desai. The purpose for the
money is not stated on the receipt. On 18th June, 1998 Mr.
Sebastian Mathew wrote the following instruction on an
Access Finance Services limited complimentary slip:

“John
Meer Care Desai transfer of US$ 242,484 is broken down as
follows:-

Zamdaell Advance – 50,000
Siavonga Property – 100,000
Stanley Tanapiyapa -92,484

J94

242,484
Signed”

There is a further handwritten instruction against the
allocations to the Siavonga property and Stanley
Tampiyapa to open new accounts.

The receipts cash book confirms the receipt of the money
and the break down of it as instructed. The Zamdaell
ledger also shows a receipt of K95 Million which the
witness said was converted from the US$ 50,000 allocated
to the account. Incidentally, the same account shows a
payment out of the same amount on the same date under
Ref 004938. The Ref 004938 appears to be the cheque paid
to Standard Chartered Bank being a deposit on the Roma
property testified to by PW 4. The Cheque Requisition
produced by the witness dated 14th May, 1998 confirms
this and has a narration “Being payment on A/C of
Zamdaell”. The witness said that the requisition was
prepared on the written instructions of A3 to Mr. Sebastian
Mathew who also endorsed on the instruction, the further
instruction “please pay” and the date, 14th May 1998. The

J95

witness stated that he had come to know Zamdaell as an
investment of the office of the President (OOP).

In relation to the offence in counts two and five, PW 10
produced a receipt for US$ 160,000 by the AFSL on behalf
of Zamdaell on 25th June, 1998 from Meer Care and Desai.
The receipt was recorded in the cash took on the same
date and the cash book shows this. A cheque requisition
was issued on 29th June, 1998 “being payment for
purchase of S/D 84 of farm No. 441a Roma Lusaka to
Zamdaell” in favour of D.H. Kemp and Company for
US$125,000. The Zamdaell ledger shows that a sum of
K243, 750,000 was debited and the witness said that this
is the equivalent of the US$ 125,000 paid to D.H. Kemp. Of
note is the fact that in this transaction there was no
corresponding entry as in the case of the US$ 50,000 or
the kwacha equivalent of K95, 000,000. The witness then
referred to a letter dated 24th June, 1998 which I will
reproduce:

“24th June, 1998
The Executive Director
Access Finance Services limited.

J96

Mambilima House, Kabelenga Road

P.O Box 35490
Fax 01-236496
LUSAKA
Dear Sir,

RE: PURCHASE OF S/D 84 OF FARM NO. 441a ROMA
LUSAKA SHONGA STEEL LIMITED TO ZAMDAELL
LIMITED.

We refer to the above matter and advise that we are
now ready to attend completion of sale with the
Vendors’ Advocates.

Would you, therefore, urgently arrange the cheque for
the balance of the Purchase Price in the sum of United
States Dollars One Hundred and Twenty Five
Thousand (US$ 125,000.00) payable to Messrs D.H
Kemp Company.

By copy of this letter, Mr. Mittal of Cave, Mittal and

J97

Company Lusaka is being advised to collect the
Cheque from your offices. Please also let us have your
cheque for disbursements which includes registration
fee, certificate fee, Certificate of Title fees incidental
and agency fees at K1,250,000.00 fixed)

Please expedite

Yours faithfully

CAVE. MALIK & COMPANY”

The transaction is recorded in the Payments Cash book of
the AFSL in the sum of K243,750,000 on 29th June, 1998
in favour of Zamdaell. In this transaction there were no
express instructions as to how the US$ 160,000 credited to
the Zamdaell Account from Meer Care and Desai was to be
applied save that a drawing in the sum of US$ 125,000
was made on the same day as reflected in the payments
cash book.

In relation to the offence in counts three and six the
witness said that he was involved as supervising officer. He

J98

said that US$ 149,980 was received from Meer Care and
Desai on 17th December, 1998 and the amount was
recorded in the Receipts cash book for that date. He said
that the kwacha equivalent was K351,703,100.00. The
same amount was credited to the Zamdaell Dollar
Transaction Account on the same date in kwacha. PW 10
said that on 22nd December, 1998 US$ 148,000 was sent
to E. Florence via telegraphic transfer. He said that A3
instructed him to make the transfer.

In relation to count 10, the witness testified that US$
236,000 converted to K711,540,000 was received from
Meer care and Desai on 13th July, 2000 and the receipt
was acknowledged and recorded in the Receipt cash book
for the period.

The cash book shows that out of the amount received US$
31,000 was credited to an account called SYBLIS leaving
a balance of US$ 205,000 which was apportioned as
follows:

. Leyland Account No. SC 075 –
US$ 70,000

J99

. Lusaka Trust and Corporate Services Account No.
7005 -US$ 30,000
. Leyland Account No. SC 075
-US$ 10,000
. Computer Project Account No. SC 076
– US$ 20,000
. Mambilima House Account No. ZA 045
– US$ 75,000

Each of these accounts appear from the documents to have
received the monies. It appears to be the witness’s
testimony and as the documents show, that before the
monies were apportioned the US$205,000 was first
credited to the Zamin Account which he learnt to be an
office of the President account. Each of the amounts
allocated to the four investment accounts above were duly
converted to kwacha and treated variously.

In the case of the Mambilima House Account the money
(US$75000) earned interest before being transferred to the
Epakor Account of PW 12 (Mr. Francis Kaunda) to “repay”
a loan of US$ 250,000 given to the AFSL; in the case of the
Lusaka Trust Corporate Services Account the US$30,000

J100

kwacha equivalent was expended within the account; in
the case of the US$80,000 allocated to the Leyland
account; maintained in the AFSL it was reallocated to the
Leyland Daf Account in Access Leasing Limited were the
account closed on a credit balance after earning interest;
in the case of the US$20,000 in the Computer Project
account maintained at AFSL the money moved to Access
Leasing Limited where the account was renamed Irene
Kabwe after A2’s wife’s name, then to the RAZ account in
AFSL. This last movement according to the witness was for
consultancy services which AFSL had provided to the Roan
Antelope Mining Corporation (RAMCOZ). He said that he
was told this by A3 but that he could not himself explain
why the funds were being moved in that manner and at all
times on the instructions of A3.

In relation to the offence in counts 11 and 12 the witness
stated on the basis of the accounting and other documents
that the sums of K25 Million and K43 Million used to pay
for A3’s shares were debited to the Zamin Account
maintained at the AFSL. In relation to the K25 million in
Count 11 in particular, the witness when led by the Public
Prosecutor referred to the note attributed to A2 in which it

J101

was suggested that A3 be given free shares in AFSL to be
written off over a period. The witness stated that A3 owns
5% shares in AFSL. The Zamin statement which the
witness said was given to the officers of the Task Force by
A3 himself shows the two debits indicating the dates when
the transactions were made.

In cross-examination, the witness replied that his evidence
was based for those transactions that took place before he
joined AFSL, on the accounting documents that he found
and information given to him by officers of the Task Force.
He replied also that after being re-engaged by the Bank of
Zambia at the AFSL his duties concerned managing
residential properties previously managed by the AFSL and
collecting debts owed to AFSL. He denied that accounts
were prepared (in contemplation of these charges) to
misrepresent the true position. He said that the AFSL
accounting system was okay.

He said that the US$50,000 part of the US$242,000
received from Meer Care and Desai sat in the United Bank
of Zambia AFSL account and was never in the possession
of any of the accused. He said that in the AFSL the

J102

US$50,000 was credited to the Zamdaell account of the
office of the President. He was not aware of any
complainant from the OOP regarding the disbursement of
this amount. Similarly he said the US$125,000 was never
in the possession of any of the accused and that there were
no records that this was Government money. He gave
similar answers in relation to the US$ 148,000 and
US$205,000.

The witness stated that A3 gave instructions to pay the
monies in his capacity as an employee of the AFSL. He
noted that the Zamin statement did not show the actual
transfers of the monies from the US$ 205,000 to three of
the accounts except the one to the computer project. The
witness also noted payments to other recipients from the
Zamin account after the US$ 205,000 was received. He
stated also that more money on the account was paid out
than was received so that the Zamin account actually owed
money to AFSL.

The witness recalled dealing with officers from the office of
the President. He said that they would sometimes bring
cash to the AFSL or collect cash from the AFSL.

J103

The witness stated that he was not working at AFSL when
A3 wrote about the allocation of free shares to A2 and that
the documents produced were not complete. He did not
know whether a fictitious loan account to allocate free
shares to A3 was ever created. He said, however, that a
share account was created for A3, but he did not know
how A3 acquired his shares. He said that apart from the
Zamin statement there is no record that the funds that
paid for A3’s shares came from that account, but that they
came from the AFSL client Services Account. He stated
also that both the Zamin and the AFSL client account bore
the same account NO. (7069) and that A3 renamed the
Zamin Account as AFSL client account.

The witness could not explain why other named entities
and persons were shown as paying money to the Zamin
account.

The witness stated that before the US$50,000 and
US$160,000 were received there were credit balances in
the AFSL account at the United Bank of Zambia. He said
he did not know where the money from Meer Care and

J104

Desai came from. He also did not know the specific
instructions to the AFSL how the funds were to be applied.
He said that there were funds received from Meer Care and
Desai for clients other then the office of the President at
AFSL.

The witness started that the Access Finance Services
limited dealt with the ZSIS as an institution and likewise
the ZSIS did not deal with officers of the Access Finance
Services limited such as A2 and A3 in their personal
capacities.

He replied that the records do not show that A1 was a
client to Access Finance Services limited and that he had
no evidence that A1 had any dealings with the company.

He stated that the core business of the Access Finance
Services limited was lending from which it earned a
substantial income and that its clients exceeded fifty. He
stated that he did not think that the Zamin kwacha and
Dollar statement produced in court captured all the
monies received by the AFSL from Meer Care and Desai.

J105

He reiterated that the ZSIS never complained that its funds
had been misappropriated by the AFSL.

He was aware of other payments from the Zamin accounts
over which he had not been questioned by officers of the
Task Force including those for purchases of properties. He
did not know whether any of these properties were safe
houses for the ZSIS.

In re-examination PW 10 stated that the payment to other
entities from the Zamin account can best be explained by
A3. He said the transactions in the Zamin statements are
not known in the books of the AFSL. He said the DGH was
an investment of the ZSIS and that the K70 million from
which the K25 Million and K43 Million were paid out for
A3’s shares came from that account before going into the
Zamin account. He said A3 should be able to explain why

E. Florence, Standard Chartered Bank and Messrs D.H.
Kemp were paid.
He replied that the expenditure of the US$205,000 is not
explained in the AFSL books.

J106

He replied that when the US$ 160,000 and US$149,000
were remitted from Meer Care and Desai there were lesser
balances in the AFSL account at the United Bank of
Zambia. He reiterated that the Zamin Account was
renamed AFSL client Account on the instructions of A3.

In connection with the payment for A3’s shares in AFSL
and Pukupan the witness replied that the relevant
transactions were domiciled in a Sundry debtors account
which implied that A3 was owing AFSL.

At the end of his testimony I formed the view that PW10
testified in a matter of fact manner unaffected by the fears
that I had of bias. He drew no personal conclusions from
the documents.

PW 11 was Mr. David John Goody who gave his occupation
at the date of his testimony as Managing Director for
Leyland DAF. He said that he was interviewed by officers of
the Task Force on Corruption in relation to the US$ 80,000
credited to the Leyland account at the AFSL. He pleaded
ignorance of this transaction and denied that his company
has had any dealings with the AFSL except for a failed

J107

negotiation relating to the sale of some residential property
at one stage in respect of which he dealt with A3.

He was not cross-examined.

PW 12 was Mr. Francis Hubert Kaunda, who gave his
occupation as business consultant. The witness opened
his testimony by stating that his position in relation to
these proceedings was awkward because although he had
been called as a witness he was at the same time an
accused person in a London High Court case in matters
related to those in this case. It is, however, clear that this
witness was not held as an accomplice. On the basis of his
admission, I will approach his evidence with caution as he
too may be a witness with an interest of his own to serve
especially since he owned an account at the AFSL in which
he is a known share holder.

His evidence was that he was the non executive Chairman
of the AFSL and was as such not involved in the day to day
running of the Company. He confirmed that the company
was run by A3 as Executive Director and other managers.
He said that he was interviewed in relation to an account

J108

called EPAKOR at AFSL which he acknowledges as the
beneficial owner. He confirmed having invested US$
250,000 initially from proceeds of a property sale. He
denied, however, knowing that his account was credited
with US$ 75,000. I note in this respect that the testimony
of PW 10 and the documents in that respect do not show a
direct injection of the US$ 75,000 to the account but that
in the books of the AFSL the US$ 75,000 which was
initially credited to the newly opened Mambilima House
account earned interest and ended up being credited to the
EPAKOR account. It remains to see upon the whole of the
evidence what the true intent of this transaction was.

PW 13 was Mr. Vincent Malambo a legal practitioner. This
one equally may well be a witness with an interest of his
own to serve seeing that he is the beneficial owner of the
house on the Kabulonga property in respect of which a
payment to E. Florence of US$ 148,000 was made. His
interest may lie in trying to show that he was an innocent
beneficiary of the property. I must therefore look for
supporting evidence if necessary before I can rely on his
testimony.

J109

The witness testified that he and his wife are the
shareholders in Mums Delicatessen in which the
Kabulonga property is registered. In the course of his
testimony the learned public prosecutor required the
witness to state the circumstances under which the
Kabulonga property was acquired. The witness objected to
the question on the ground that the matters he would have
to disclose were protected by legal professional privilege
and that A1 to whom the transaction related had not
waived his privilege.

After hearing arguments on the issue from both sides I
ruled in favour of the objection. I have once more
considered the arguments and my ruling. My view remains
the same. I do not think that the interests of justice will be
advanced any further by breaching the privilege.

Suffice to state that PW 13 testified that he made a
statement to PW 32, Mr. Vincent Machila of the Task Force
on Corruption. He also confirmed filing a joint affidavit
(produced by PW 7) with PW 14 in the High court
challenging the state against the seizure of the Kabulonga
property. PW 13 was not Cross-examined.

J110

PW 14 was Mr. Eric Suwilanji Silwamba, also a Legal
practitioner. The witness and his testimony is in a similar
position to that of PW 13 and whatever I have said in
relation to that witness applies to him as well.

The witness testified that he is the beneficial owner of the
house on the Roma property although the property is still
registered in the name of Zamdaell. He said that he gave a
statement to PW 32 which he signed. He remembered
giving an assignment relating to the Roma property
(between Shonga Steel and Zamdaell) to PW 32. He pointed
out however, that the subject of the assignment was the
subject of litigation in the Supreme Court. He was not
cross-examined.

PW 15 was Mr. Victor Muhamba Makayi who gave his
occupation as an Investigations officer with the Task Force
on Corruption. The witness led the court to view various
properties owned by Zamdaell. He testified that these
properties were being managed by the AFSL. He said that
these properties were seized and forfeited to the State after
giving due notice to the Public for the benefit of adverse

J111

claimants. He produced printouts from the Registry of
Lands and Deeds which establish title and confirm that the
properties belong to Zamdaell Limited.

In cross-examination. PW 15 replied that he did not know
why there were no adverse claimants after notice of the
seizures was published.

PW 16 was Mr. Oliver Mubita Kalabo who informed the
court that he was Permanent Secretary in charge of
Administration at Cabinet Office. He said that he knew A1
as the former President, Dr. Chiluba whom he said was a
Public Officer.

In Cross-examination the witness replied that the
President of the Republic of Zambia was a public officer.
He said however that he (the witness) was not the head of
the Civil Service.

It remains to be seen whether PW 16’s assertion that the
President of the Republic of Zambia is a Public officer.

J112

PW 17 was Mr. Isaac Chitundu, whose profession is
accountant and was engaged at the time of his testimony
as Finance Manager at AFSL. It is clear, therefore, that like
PW 10, the witness too was re-employed by the Bank of
Zambia after it took over the AFSL. As such I will, like in
the case of PW 10 approach his testimony with caution in
that he may not only be a person with an interest of his
own to serve but also may have been influenced by his new
position at the AFSL. I must accordingly look for
supporting evidence before I can rely on his testimony.

The witness testified that he was first employed by the
AFSL in 1999 as Chief Accountant. He was called to
confirm merely that the AFSL managed the Zamdaell
properties as well as the properties of Hearnville Limited.

He was not cross-examined.

PW 18 was Ms. Fridah Tamba, who gave her occupation
as Assistant Director, Finance Department at the Bank of
Zambia.

J113

This witness brought to court payment instructions from
the Ministry of Finance to the Bank of Zambia. She
presented them in the order of the offences in the counts
as follows:

Count 1 and 4.

. Payment instruction NO. 71 of 1998 dated 14th April,
1998 in the sum of US$ 250,000 for the benefit of
Wilbain Incorporated.
. Payment instruction NO. 73 of 1998 dated 14th April,
1998 in the sum of US$ 650,000 for Systems
Innovations.
Counts 2 and 5

. Payment instruction No. 99 of 1998 dated 27th May,
1999 in the sum of US$ 250,000 for Wilbain
Incorporated.
. Payment instruction NO. 98 of 1998 dated 27th May,
1998 in the sum of US$ 650,000 for Systems
Innovations.
J114

Counts 3 and 6

. Payment instruction NO. 177 of 1998 dated 21st
October, 1998 in the sum of US$ 250,000 for
Wilbain Incorporated
. Payment instruction No. 176 of 1998 dated 21st
October, 1998 in the sum of US$ 650,000 for
Systems Innovations.

Counts 7 and 8

. Payment instruction No. 203 of 1998 dated 4th
December, 1998 in the sum of US$ 650,000 for
Systems Innovations
. Payment instruction NO. 204 of 1998 dated 4th
December, 1998 for US$ 250,000 (in relation to
count 7 only) for Wilbain Incorporated
. Payment instruction NO. 170 of 1999 dated 31st
August, 1999 in the sum of US$250,000 (in relation
to count 8 only) for Wilbain Incorporated
. Payment instruction NO. 171 of 1999 dated 31st
August 1999 in the sum of US$ 750,000 (in relation
to count 8 only) for Systems Innovations

J115 J116

Count 9

. Payment instruction NO. 197 of 1999 dated 1st
October, 1999 in the sum of US$ 750,000 for
Systems Innovations.
. Payment instruction NO. 198 of 1999 dated 1st
October, 1999 in the sum of US$ 250,000 for
Wilbain Incorporated.
. Payment instruction NO. 227 of 1999 dated 29th
October, 1999 in the sum of US$ 750,000 for
Systems Innovations
. Payment instruction NO. 228 of 1999 dated 29th
October, 1999 in the sum of US$ 250,000 for
Wilbain Incorporated.
Count 10

. Payment instruction NO. 11 of 2000 dated 23rd
June, 2000 in the sum of US$ 250,000 for Wilbain
Incorporated.
. Payment instruction NO. 12 of 2000 dated 23rd
June, 2000 in the sum of US$ 750,000 for Systems
Innovations.
. Payment instruction No. 38 OF 2000 dated 21st
June, 2000 in the sum of US$ 250,000 for Wilbain
Incorporated.
. Payment instruction No. 39 of 2000 dated 21st June,
2000 in the sum of US$ 750,000 for Systems
Innovations.
. Payment instruction NO. 55 of 2000 dated 23rd
June, 2000 for Wilbain Incorporated.
. Payment instruction NO. 56 of 2000 dated 23rd
June, 2000 in the sum of US$ 750,000 for Systems
Innovation.

The witness testified that all the payments were made
through the Zambia National Commercial Bank London
branch account.

In cross-examination the witness stated that although the
beneficiaries indicated on the payment instructions was
either Wilbain Incorporated or Systems Innovations the
payee was the Zambia National Commercial Bank. She saw
no relationship between the monies paid out and those
alleged to have been stolen in the various counts.

J117

She replied that the total amount involved in the transfers
was US$ 9,600,000 while the total allegedly stolen
according to her came to US$ 1,066,060. She said that the
payments were being made to service debts. She said that
the Bank of Zambia was acting on the instructions of its
client the Ministry of Finance and Economic Development
which in turn acted on behalf of a Government agency, the
Zambia Security Intelligence Services (ZSIS). She stated
that she was not familiar with the operations of the ZSIS
and was not competent to talk about them. She said that
someone from the ZSIS would be better able to explain the
(purpose of the) transactions. She said that the bank’s
clients have not complained over the payments or that the
money was stolen.

In re-examination she stated that there was no apparent
connection between the payments and any of the accused.

PW 19 was Mr. Reggies Phiri who stated that he was the
Director General of the ZSIS at the date of his testimony.

He gave evidence that he was not aware of the existence of
Zamdaell, Hearnville Limited, Lusaka Trust Limited. DGH

J118

Poly products or the Leyland account. He said that his
predecessor Mr. Xavier Franklin Chungu had not handed
over any of the entities to him.

The witness also stated that the resources of the ZSIS
should be used for the operations and administration of
the Service and did not include meeting the private
expresses of the Director General or the Head of State.

In cross-examination PW 19 replied that anything that was
not handed over to him when he took over office as
Director General did not belong to the ZSIS. He said that
information in the intelligence service is given on a “need
to know” basis and that the Director General decided what
information to pass on and because of the nature of
intelligence work it was not possible for him to know the
activities his predecessor was engaged in. He stated that
the handover of office between him and his predecessor
spanned seven hours in all over a period of three days. He
said that he did not ask him about the companies (owned
on behalf of the ZSIS). He replied that the Service could
carryout some of its functions through a company.

J119

The witness replied that he received two statements from
the Access Finance Service Limited showing that the ZSIS
owed the company money in kwacha and dollars but could
not recall how much it was. Interest was being charged
and he discussed the issue with A2 whom he requested to
freeze the account so that he could verify it. He said that
the account (Zamtrop) was not handled by the ZSIS
accounts office but by his predecessor in person. He said
that as such it was his predecessor who could explain the
account. He said, however, that his predecessor confirmed
the existence of the account to him. He did not know about
Wilbain Incorporated. He knew about Systems Innovations
but did not know the terms of the engagement between the
ZSIS and the company.

He said that his office was based on trust and that what he
may do may not be found appropriate by another Director
General. He said that each Director General came with his
own style. He said that he could form alliances with other
agencies, determine operational details and was ultimately
answerable to the President. He said that were he used
money in the course of his work he should not be accused
of stealing it until he and the recipient had been talked to.

J120

He stated that transactions that may appear suspicious or
questionable in the ordinary course of things may be
appropriate from the intelligence point of view.

The witness explained that the funds of the ZSIS were used
for administrative purposes and for operational purposes.
Funds for the former purpose were pre determinable while
those for the later could not be.

He stated that no law prohibited the receipt of help, money
or gifts by the president or how those should be managed.

He stated that the Zamtrop Account was a ZSIS
operational account and was used by his predecessor. He
said that the Auditor General would know about funds
disbursed to the Service. He said accordingly that none of
the accused could know the source of the funds, which his
predecessor had. He was aware of audits done during his
predecessor’s tenure but had not seen the reports. He said
that under the ZSIS Act there was nothing wrong in
putting funds from (private) sources into the ZSIS Account
or money meant for the President as the Director General
decides what goes into it and he commands and controls

J121

the Service. His view was that there was nothing wrong if
A1’s (private) funds went into the ZSIS account and were
paid out of that account.

The witness finally stated that he was not ware that ZSIS
funds were misappropriated, that was why he (the ZSIS)
was not the complainant in this case. He was not aware of
any monies which any one of the three accused stole from
the service.

In re-examination the witness stated that the Finance
(Control and Management) Act governed the management
of Government funds and that under the Act Government
officers are not allowed to keep personal funds in a
Government account. He said that similarly the ZSIS Act
did not.

He replied that he came across no agreement establishing
any trust between individuals who represented the ZSIS
interest in any private companies.

The witness stated that the ZSIS had an account with the
AFSL but that the account had nothing to do with the

J122

personal expenses of the Director General and the
President.

PW 20 was Professor Moses Musonda, a retired diplomat.
He stated that between October 1997 and May, 2001 he
was the Zambian High Commissioner in London.

The witness stated in chief that Mr. Stanley Nkumbula (PW
21) the person responsible for Protocol at the High
Commission informed him that he had received an
instruction from A1 to deliver a parcel to a certain person.
The witness said that he advised PW 21 to carry out the
instructions.

In cross-examination PW 20 replied that there was nothing
wrong in A1 instructing PW 21 as he did.

PW 21 was Mr. Stanley Kangwa Nkumbula, who stated
that he was the First Secretary at the Zambian High
Commission in London, Protocol Department at the time of
giving his testimony. The witness stated that he recalled
two occasions once when he was instructed by A1’s Private
Secretary to collect money from the ZNCB London Branch

J123

which he was to give to Mr. Xavier Chungu who was
transiting through London from New York on his way to
Lusaka. He said that he informed PW 20 about the
instruction who told him to comply. He said that he
collected the money and later gave it to Mr. Xavier
Chungu.

The witness stated that the second incident was a call he
received from Mr. Xavier Chungu who told him to collect
money (from the ZNCB London Branch) and await further
instructions. He said that on the same occasion A1 had
instructed him to receive Miss Chifunda and Mrs. Mwanza
at the airport and arrange accommodation for them. The
witness said that he carried out the instructions of Mr.
Chungu.

Mr. Nkumbula testified that on another occasion he
collected money from ZNCB London branch and took it to
then Mrs. Chiluba. He said that at the ZNCB he dealt with
Mrs. Kaluba (the General Manager) or Miss Bennet (the
Operations Manager). He recalled on other occasions
collecting and giving money to A1’s children namely,
Hellen, Kaindu and Freddie on A1’s instructions. He also

J124

used to receive instructions from then Director General
ZSIS, Mr. Xavier Chungu and that this was between 1998
and 1999. He could not recall the amounts of money he
used to collect and never kept a record.

PW 21 was cross-examined. He stated that none of the
monies he collected were delivered to A1 or to Mr. Xavier
Chungu. He said that his salary was about K24 Million
(£3000) (per month) and that if he were recalled he would
not get any salary close to that. hHe stated that he would
like to keep his job in London.

In re-examination PW21 stated that his evidence was not
motivated by any desire to keep his job.

None of the monies collected by this witness was related to
that in the charges.

PW 22 was Mr. Ketson Kandafula who gave his occupation
as Property Manager at the Access Finance Service
Limited. He stated that he managed properties owned by
Zamdaell and Hearnville Limited and that he collected

J125

rental payments which he handed over to the accounts
section.

PW 23 was Mr. Bernard Mungulube a Senior Internal
Auditor at the Ministry of Finance and National Planning.

The witness testified that he was asked by officers of the
Task Force on corruption to examine documents dealing
with contractual payments to Wilbain Incorporated and
Systems Innovations. He said that the payments were for
security installations. He said that he came across the
payments at the Ministry of Finance. He identified several
documents evidencing the transactions already admitted
into evidence by the testimony of PW 18.

In cross-examination the witness replied that the payee
was the ZNCB London Branch. He said that the documents
were authored by the Permanent Secretary Budget, Mrs.
Chibanda through the Principal Accountant, Mr. Mtonga.

He said the payments were being made on behalf of the
ZSIS who had contracted the two companies.

J126

In re-examination, PW 23 stated that he audited some of
the payments and signed by way of audit authority. He
identified those relating to counts three and six in which
US$ 250,000 and US$ 650,000 were paid out to Wilbain
Incorporated and Systems Innovations on 21st October,
1998; and those relating to count ten in which US$
250,000 and US$ 750,000 were paid out again to Wilbain
Incorporated and Systems Innovation on 21st June, 2000
respectively.

PW 24 was Miss Esnart Shanzongo, an Administrative
officer at the Catholic Relief Services at the time of her
testimony. She testified that she was an Executive
Assistant at the AFSL before that.

The witness told the court that she was shown some
memos by officers of the Task Force on Corruption. She
identified five documents as the ones she was shown. She
said that the Access Finance Service Limited would
instruct Meer Care and Desai to make payment on the
basis of the memos.

J127

In cross-examination she replied that Meer Care and Desai
dealt with the AFSL as a company.

She said in re-examination that the documents she had
identified were the only ones shown to her by officers of the
Task Force.

PW 25 was Mr. Michael Phiri, who gave his occupation as
Tax Manager at KPMG Zambia. He stated that he joined
the firm in 2005. Before that he worked for the Zambia
Revenue Authority (ZRA) as Assistant Commissioner of
taxes.

He listed a company and several vehicles as properties
owned by A1’s wife, Mrs. Regina Chifunda Chiluba which
he said he learnt from both A1 and his wife that she had
acquired from monies given to her by A1. The witness
produced a list which was admitted as evidence of cash
amounts allegedly given to Mrs. Chiluba by A1 over the
years from 1995 to 2001 totaling over US$ 350,000. The
witness stated that no tax was levied by the ZRA on these
amounts.

J128

In cross-examination PW 25 stated that Cabinet office did
not supply him with enough information on how much
income A1 earned as President during his foreign trips. He
stated that it was possible that several of the properties
were acquired before A1 became President and that the list
of monies A1 gave to his wife is not conclusive. He did not
find out how much A1 may have received in terms of gifts.

In re-examination the witness said that A1 refused to
disclose the sources of the gifts for un explained reasons.

PW 26 was Mrs. Inonge Grace Muyunda. She gave her
occupation of a banker employed as Head Internal Audit,
Compliance and Controls in the ZNCB.

This witness was called to produce documents relating to
the handling of and certain transactions that took place in
the Zamtrop Account held at the ZNCB London branch.
She stated that the Zamtrop Account was a Government
Account.

She tendered signing mandates for the account which
showed that from about 1995 there were two signatories to

J129

the account, one of whom was then ZSIS Director General,
Mr. Xavier Chungu who appears to have controlled the
account. In 1996 these arrangements were changed. The
following four letters which were admitted into evidence
explain the signing arrangements. The first letter reads:-

“Office of the President/Special Division

P.O Box 50212
LUSAKA
18th December, 1995
The General Managers
Zambia National Commercial Bank
London
United Kingdom.

We have received instructions to close our Account NO:
0IC/19/70000/03 with effect from 7th December, 19955.
Could you now proceed to have the balance transferred to
the new Account NO. 58/C/40/7018501 or 0IC/1970185.
Any further proceeds to the old Account should be redirected to the new Account. I have requested the High
Commission to action their part with urgency.

J130

(signed)
X.F.CHUNGU
DIRECTOR GENERAL”

The letter bears handwritten comments which the witness
did not explain. The letter appears to be a faxed copy and
has a “RECEIVED” stamp dated 18th December, 2005. The
second letter reads:

“Office of the President/Special Division

P.O Box 50212
LUSAKA
2nd August, 1996
The Branch Manager
Zambia National Commercial Bank
London Branch
LONDON

ACCOUNT NO: 58C40/70185/01

J131

Please be advised that the second signatory to Account NO.
58C40/70185/01, Mr. D.NYANGULU is no longer a
signatory to this Account.

2. In this regard you will be advised about the successor
signatory in due course. Meanwhile, please accept the
Permanent Secretary, Mr. X.F.CHUNGU as the Sole
signatory.
(signed)
X.F.CHUNGU
PERMANENT SECRETARY “
The foregoing letter has a “RECEIVED” stamp dated 2nd
September 1996. There are no other writings on it. The
third letter reads:

“Office of the President Special Division

P.O Box 50212
LUSAKA
22nd August, 1996
The General Manager
Zambia National Commercial Bank

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London Branch
LONDON- EC ZR 6A R,
UNITED KINGDOM.

PROPOSED MEASURES TO PROTECT OUR ACCOUNTS

Following a run of attempts to deceitfully withdraw money
from Account No. 58C 4070185 01, it has been found
necessary to propose some measures to further secure our
Accounts.

2. If it is acceptable to you, I wish to suggest that the
following measures with regard to all transactions on our
Accounts be implemented upon receipt of this letter:
(a) handling of all transactions on the Accounts between
us and the Branch be restricted to the General Manger
and the Branch Accountant, Mrs. Elaine J. BENNETT, in
person;
(b) documents and correspondence on the Accounts shall
be delivered personally to the General Manager or Mrs.
BENNETT by hand of the second signatory to Account
NO. 58C407 18501 based at our High Commission in

J133

London. Similarly, documents from the Bank to us should
be given personally to the second signatory. Other
documents and correspondence will continue to be
delivered through Zambia National Commercial Bank,
Head Office, London;

( c) all foreign exchange transactions shall be given serial
numbers as was the case with the last dispatch to the
undersigned.
(d) Account No. 58C 407018501 shall be used for
depositing purposes only and not for any other
transaction. Money from this Account shall be moved to a
Confidential Account on my written instructions and
endorsed by the second signatory at the London Mission;
(e) as for transactions on the confidential Account, this
again should only be effected with my written
instructions bearing my signature and that of a second
signatory based here in Lusaka. In short, the second
signatory, at our Mission in London shall not be a
signatory to the confidential Account; and
(f) Lastly, all the above instructions shall be preceded
and followed by personal telephone confirmation
J134

between the undersigned and the General Manager or
Mrs. BENNETT.

3. Having made these suggestions, I wish to mention
that it is not our intention to encumber your banking
procedures but out of concern to protect our Accounts.
We should, there fore be most grateful if you could
implement the proposed measure. May I also seize
this opportunity to sincerely thank you and the entire
management for having foiled several fraud attempts
at our Account.
4. Lastly, I wish to request you to send me another copy
of Account signatory forms.
(signed)
X.F. Chungu
DIRECTOR GENERAL “
The letter was received on 2nd September, 1996, the same
date as the previous later. The fourth letter reads:

“Office of the President, Special Division

P.O Box 50212
LUSAKA

J135

28th November, 1996
The General Manager
Zambia National Commercial Bank
London Branch
London Business Centre
19/23 Moorgate,
LONDON E2R6AR.

Dear Madam,
INTRODUCTORY LETTER
I am writing to introduce to you Mr. Reuben SAKALA, First
Secretary at the Zambia High Commission in London. He is
the second signatory to our account with your branch

2. He will soon present himself to you in person. I shall be
grateful if you could accord him the necessary assistance.
Yours sincerely
(signed)

X.F. Chungu
DIRECTOR GENERAL”
J136

This last letter was received on 10th December 1996. In
relation to the second letter requesting that the Permanent
Secretary Mr. X.F. Chungu (who clearly was also the
Director General of the Office of the President/Special
Division) be the sole the signatory until the bank was
advised of a second signatory, a signing mandate was duly
executed by Mr. Chungu and the document was tendered
in evidence. From the correspondence above, it is clear
that a second signatory. Mr. Reuben Sakala was put in
place in 1996.

The witness also produced and tendered as evidence
documents which were admitted pertaining to several
payments of money from the Zamtrop Account NO.
58C40/070185/01. This account has been numbered
variously as 58/C/40/700185/01 and 58/C/40/7018501
etc. I am satisfied that the account being referred to is one
and the same Zamtrop Account not with standing the
variations.

The payments evidenced by the document are as follows:

J137

1. US$466,000 paid to Meer Care and Desai on 24th
April 1998.
2. US$ 150,000 paid to Meer Care and Desai on 12th
June, 1998;
3. US$ 10, 000 paid to Meer Care and Desai on 16th
June, 1998
4. US$ 81,275.25 (£47,950) cash drawn by order of the
Account signatories (two) on 7th December, 1998 and
paid out to Hertfordshire University, US$ 13,560
(£8000), in respect of Hortensia Chiluba’s fees while
the balance of US$ 67,715.25 (£39,950) was
collected by Hontensia Chiluba on 8th December,
1998;
5. US$42,714 (£25,200) cash drawn by order of the
Account signatories (two) on 7th December, 1998 and
paid to Christchurch college at Canterbury, Kent in
the United Kingdom for Hellen Chiluba’s fees on 8th
December, 1998;
6. £21,611 cash drawn by order of one of the Account
signatories on 14th October, 1999. On the same date
US$ 27,906.48 (£16,611) was transferred to
Cambridge centre for Sixth Form studies in respect
of fees for Hulda Chiluba;
J138

7. US$33000 cash drawn by order of one of the
Account Signatories on 22nd December, 1999 and
paid to Hellen Chiluba US$ 7000, Frederick
US$6000, Hontensia US$10000 and Huldha
US$10,000 on 22nd and 23rd December, 1999. On
payment these amounts were converted to their
British pound equivalent;
8. US$200,000 transferred to Meer care and Desai on
11th November, 1999; and
9. US$ 205,000 transferred to Meer Care and Desai on
7th July, 2000
PW 26 also produced and tendered as evidence a
statement of account for the Zamtrop Account which runs
from 11th December, 1995 to 27th February, 2001.

I have had the benefit of perusing this statement which
runs from 29th December, 1995 with a debit balance of
US$87.17 to 6th February, 2001 again with a debit balance
of US$5,368.16. The initial overdrawn position built up to
the sum of US$380,994 on 29th December, 1995 until the
account received the sum of US$528,982.99 from Wilbain
Tech. Inc. as the narration shows. The statement shows a

J139

trend whereby funds were received into the account from
several sources and then paid out variously. In the process
the account was overdrawn several times.

Among the prominent injectors of funds into the account
were the Zambian Ministry of Finance through the Bank of
Zambia for various purposes which included debt
servicing, purchase of equipment, in one case a motor
vehicle and for operations so far as I can tell from the
abbreviated narrations against the entries.

Payments were made out from the account. Some of the
most frequent or prominent payees or beneficiaries were
Boutique Basille, Red-Cliffe Limited, Permase General
Findeco Branch, Systems Innovations, ZNCB Main
Branch-Lusaka, Meer Care and Desai, Progressive Life,
Robert Standeart, Mr. Attan Shansonga and Wilbain Tech.
Inc.

Several payments were also made to ZSIS officials such as
Mwanambale, W.Y.Zulu, Mr. D.Nyangulu. The name A
Mundia (Alex Mundia at other times) kept on popping up.

J140

There are also, of course, the known payments to A1’s
children and to Mr. Nkumbula.

The statement does not of course show whether the
payments were on account of the monies received into the
account. The narrations do not disclose any relationship in
large measure. I take it of course that this is the reason
why the Task Force engaged the expertise of PW 31. Mr.
Maulu Hamunjele.

There are other contributors to the Zamtrop Account who
are not readily distinguishable or the purpose of their
funds explained such as the credits of 16th September,
1996 for US$60,000 (although this was immediately
followed by a payment to R. Standaert of a similar amount
on the same day), 26th September 1996 for US$1,547.32,
12th November, 1996 for US$300,000 from ZANACO BANK
HEADQUARTERS LUSAKA, 27th January, 1997 for
US$1,000,000 (sent through Citi Bank of Switzerland), 27th
March 1997 for US$72,833.41 (Being funds received by
order of “THE PRE”), 2nd June, 1997 for US$55,578.76 for
procurement of Motor vehicle, 14th July, 1997 for US$
40,000 from Austral Equipment Limited, 30th December,

J141

1997 for US$ 42,770 being a counter Credit, on a date
which is not clear but between 17th February, 1998 and
20th February, 1998 for US$ 25000 from “one of our clients
Citibank (Switzerland) details none given”’, 21st May, 1998
for US$50,000 from Chanobie, 28th July, 1998 for
US$299,985 from Zhuang Gut Hue of Beijing, 16th
September, 1998 for US$329,973.20 from “A customer VIA
CR SUISSE FIRST”, 17th September, 1998 for US$
169,963.50 from “THIRSK HOLDING VIA CR AGRICOLE
INDU”, 6th October, 1998 for US$ 589,957.50 from Hesmar
Trading.

Other remitters were on 23rd October 1998 for US$49,006
from Chanobie; 14th December, 1998 for US$ 199,962.50
from Hesmar Trading; 12th January 1999 for US$ 500,000
from Lubbeck Fine; 25th January, 1999 for US$500,000
from Citibank New York; 5th February, 1999 for US$
99,982.50 from Labbock Fine Limited; 10th February, 1999
for US$200,000 received “via Credit Suisse 1st Boston”;
19th February, 1999 for US$ 249,973.20 from a customer
“Details None Given”, 5th July, 1999 for US$ 15,889.28
being a cash counter credit; US$1,000,000 from
Leadenhall Trust via Barclays Nassau; 2nd August, 1999

J142

US$78,500 “by order of the President”, 26th November
1999 for US$35,486 being a refund from David Game
College; 1st December 1999 for US$15000 from “Chanoby”;
22nd December, 1999 for US$30,000 and on 23rd
December, 1999 for US$ 20,000 both from Mr. and Mrs.
Rathi; 23rd February, 2000 for US$224,000 from Meer
Care and Desai “Details None Given”, and 29th December,
2001 for US$449,995.48 from Cave Malik.

It is quite plain from the statement that the bank would
pay out monies on the basis of the monies held in the
account at any given time and that were the account was
overdrawn the bank used its own funds to pay. It is
obvious therefore that the best place to look for an
explanation how the monies coming into the Zamtrop
Account were expended would be the accounts kept by the
ZSIS or the persons who were in charge of the Zamtrop
Account.

PW 26 also tendered into evidence Frederick Mwape
Chiluba’s and Hortensia Chiluba’s passports copies as well
as bank account opening documents for Hortensia.

J143

The witness stated that the documents pertaining to the
foregoing were kept by the bank (ZNCB). She stated that
her Department (Audit) uses the documents in the audit
process to review the nature of the transactions and as
such the documents at issue were bank records.

When the prosecution applied to have the documents
admitted as evidence the defence resisted. I do not intend
to restate the grounds for the objection or the arguments.
Suffice to state that I stand by my ruling in which I
admitted the documents because I find nothing really
objectionable about them.

PW 26 noted that one of the Foreign Exchange Application
forms for £47,950 was faxed from the AFSL

In cross-examination PW 26 replied that the Zamtrop
Account was operated by persons with the mandate to do
so. She said that only the mandate holders could explain
the transactions. She said that she was not asked to
provide documents relating to credit inflows into the
account. She conceded that those documents should have
been provided to get a further understanding of the

J144

transactions. She stated however, that the Zamtrop
statement had both credits and debits and that monies
that were received into the account from various sources
include both Government and private ones. She pointed
out that Mrs. Beauty Kaluba was the General Manager and
Mrs. Jean Bennet was the Operations Manager at the
ZNCB London Branch.

The witness replied that it was in order for a non account
holder to send money to another non account holder
through the ZNCB. She said that she did not find any
document stating that any of the three accused was paid
or stole money in the Zamtrop Account.

The witness stated that it was unusual to have only one
signatory to a Government Account as there are
instructions that they should have two signatories at any
given time. Although much also was said about the signing
mandate I will point out here that the issue was resolved
while I was reviewing PW 26’s evidence in Chief that the
measure to have a single signatory was temporary as the
correspondence shows and that by the time of the
transactions in issue there were two signatories in place.

J145

However, it is clear that the bank accepted the mandate
and honoured the instructions to pay on the basis of the
single signatory. As the witness stated, Mrs. Kaluba, the
General Manager was a competent officer and there is no
evidence that she or Mrs. Bennet, her Operations
Officer/Accountant objected to the proposal. The view of
this witness’s later comment that the one signatory
transaction were illegal is, therefore, inconsistent as the
transactions were permitted by competent authorities at
the bank. The witness ended by saying that Government
has not complained about the transactions and so has the
ZSIS. She conceded that the Zamtrop Account was
properly operated.

In re-examination PW26 stated that the statement of the
account does not show that any of the accused put money
into the account. She replied that where non account
holders sent money through the bank the suspense
creditors account is ordinarily used. She said that the
Zamtrop Account was not a suspense Account. She said
that money put in a Government Account belongs to
Government.

J146

PW27 was Mr. Newton Chisashi, the Head Personnel
Services at Shonga Steel Limited. This witness stated that
his company owned several houses one of which was the
Roma property. He stated that his company decided to sell
the property among others to raise funds for operations.
He stated that PW14 was one of the applicants. He said
that he negotiated the price with him at a meeting
attended by Mrs. Silwamba and A3. He said the price was
subsequently fixed at US$175,000. He said, however that
the actual purchase was conducted through the AFSL. He
said that A3 told him that the purchaser of the property
should be shown as Zamdaell Limited whose box number
the witness noted was the same as that of AFSL. The
witness stated that as far as he was concerned the house
was being sold to PW14 and that infact an agent wanted to
be paid commission for finding PW14 as the purchaser.
He said that he had no dealings with A1 and A2.

The witness tendered several documents pertaining to the
purchase of the property. The subject covered by the
documents produced by this witness relate to the issues
covered by the letters produced by PW9. However, I will
set out the contents of two of the letters produced by PW26

J147

for the benefit of better understanding of the transaction.
The first letter which is on an AFSL letter head reads:

“April, 15th 1998
Mr Chisashi
Shonga Steel (Z) Ltd
Lusaka.
Dear Mr. Chisashi,
84 MUTANDWA ROAD, ROMA.
Please refer to our discussion concerning the property above.
As discussed we are keen on acquiring this property and
our offer price is US$175,000.
Please let us know if you are agreeable to this so that we
proceed in finalizing the issue.
Thanking you in anticipating.
Yours Sincerely
(signed)

A. Chungu
EXECUTIVE DIRECTOR”
The second letter which is on a Shonga Steel letter head is
obviously a reply to the foregoing letter and reads:

“NBC/CPS/jln/98
17th April, 1998.
Mr. A. Chungu,

J148

Executive Director.
Access Financial Services
Lusaka.
Dear Mr. Chungu,
RE; SALE OF PROPERTY NO. 84 MUTANDWA ROAD, ROMA
TOWNSHIP, LUSAKA
Thank you for the telex message of April, 15th 1998, and we
advise as follows:

1. Your offer of 175,000 US Dollars for the purchase of
the above property is accepted but the balance of
5,000 US Dollars will be paid by your client since he
had agreed to the sale price of 180,000 US Dollars.
2. Kindly let us know whether you will directly deal with
the legal formalities or through your lawyers. To this
effect we would appreciate being advised who they
are.
3. We shall appreciate that full settlement of the
purchase price is either made payable to Shonga Steel
Limited or to Standard Chartered Bank (Z) Ltd.
4. We hope you will treat this matter as urgent since we
have other people who had made offers who keep on
telephoning us but we give priority to your client by
virtue of being a Zambian citizen.

J149

Yours Sincerely
SHONGA STEEL LIMTED
(Signed)

N.B. Chisashi.
CONTROLLER – PERSONNEL SERVICES”.
It is quite plain from the foregoing correspondence
that PW27’s view was that the purchaser of the
house was PW14 and that AFSL were acting in that
behalf, that is to purchase the house for PW14. As
the witness said he did not understand how
Zamdaell got involved.

PW27 was cross-examined and he replied that A3
informed him that the purchaser was Zamdaell. I
am here reminded of A2’s and A3’s shareholding
interests and directorships in Zamdaell Limited by
the evidence of PW2. He conceded that the
correspondence did not say that his company was
offering the house to PW14. There is of course
PW27’s statement that he viewed the AFSL to have
been acting for an unnamed client.

J150

In re-examination PW27 replied that Musa Dudhia
wanted a Commission to be paid by Shonga Steel for
finding a purchaser for the house, PW14.

PW28 was Mr. Samuel Mukupili, who gave his
occupation as Passports and Citizenship Officer.
The witness was called to produce documents
pertaining to the applications for passports and in
particular the affidavits of the four children of A1
alleged to have had fees paid for them or cash given
to them from the Zamtrop Account.

When the affidavits were tendered as evidence the
defence counsel raised an objection on the ground of
lack of relevance. I ruled the documents to be
admissible and that I would reserve the question of
relevance to be dealt with in this judgment. As has
already been shown above the documents were
brought in to establish that the recipients of the
funds from the Zamtrop Account were actually A1’s
children. The witness was not cross examined.

J151

PW29 was Mr. Moola Akasiwa, a Chief Investigations
Officer in the Drug Enforcement Commission but
attached to the Task Force on Corruption at the time
of his testimony. He said that he was part of a team
of (Task Force) officers that conducted a search at
A2’s residence on 30th June, 2002. He stated that
several documents were seized among which were
two documents, financial ledgers, the first of which
was for Horizon Zambia account No. 3475/0001
dated 23rd April, 1998 and the second for Harptree
account No. 3388/0001 also dated 23rd April, 1998.
He identified the two documents shown to him and
they were admitted into evidence without objection.
I have looked at the two ledgers which are titled
“Matter Ledger” Each ledger purports to begin from
the “start of the matter” to around or near the date
of its publication. Hence, the Horizon Zambia Leger
starts from 30th July, 1997 and closes on 18th April
1998 while the Harptree Holdings ledger starts from
8th April, 1997 and closes on 27th March, 1998.
The two ledgers record receipts and payments from
the accounts. I shall revert to the ledgers where

J152

need arises with regard to the transactions recorded
in them.

PW29 was not cross examined.

PW30 was Mr. Geoffrey Chilufya Mulenga who gave
his occupation as Legal Officer in charge of litigation
at the Bank of Zambia.

This witness was called to produce documents
pertaining to movements of money between Meer
Care and Desai and the AFSL. He stated that these
documents were in the possession and custody of
the Bank of Zambia which took over the running of
the company and Access Leasing Limited. He stated
that most of these documents were letters written by
either A2 or A3 instructing Meer Care and Desai to
remit the money. The witness talked about the
documents referred to by PW24. He also talked
about letters written by Meer Care and Desai which
followed the instructions by A2 or A3. All these were
admitted as evidence without objection. It is
necessary to reproduce the letters.

J153

The first pair of letters read:

“INTERNAL MEMORANDUM
To: FMK.

cc: SM
From: AC
Date: May 7, 1998
SUBJECT: FUNDS TRANSFER

We need to be reimbursed the sum of US$242,484 for
various clients affairs handled through Meer Care and
Desai.
Please arrange for this to be paid. Details of this
reimbursement are attached.
(Signed)
Att’d”

There is then a handwritten note on the bottom of
the memo which reads:

“Dear Iqbal
Please remit the above amount of $242,484 to the
account of Access Financial Services at the United
Bank as per the transfer details already with you
Thank you
(Signed)

F.M. Kabwe.
J154

……..1998”

The document containing the details of the
reimbursement referred to in the memorandum was
not produced or talked about by the witness.
However, Meer Care and Desai appears to have
reacted to this request by instructing their bank to
pay in the following terms.:

“Meer Care and Desai.
Solicitors
Mayfair
London
WIY JHA
Tel: 0171-409 0291

TIX: 269223

MERLAN G.
FAX: 0171 629 3344
DX: 44410 marble
Arch

The Manager
National West
Minister Bank Plc

J155

International Banking (Centre) Your ref:
Kings Cross House Our ref:
IM/YK/3556
By Fax Date:
12th May, 1998
Dear Sir,
Please accept this letter as our instructions to remit by
telegraphic transfer, the sum of US$242,484
beneficiary to pay all costs and charges, as follows:

Beneficiary: United Bank of Zambia
For Further Credit: Access Financial Services
Ltd Zambia

Bank Details: Citibank N.A.
111 Wall Street
New York.
10043 N.Y

Account number: 36125729
Remitter: Meer Care and Desai.
Please debit our US dollar account number 02507404
for the above remittance.
Yours faithfully,

J156

(Signed) (Signed)

MI Meer N. Desai”

The foregoing letter bore no other writings. The
second pair of letters comprises a handwritten letter
and a letter from Meer Care and Desai as follows.

“MR IGBAL MEER
MEER CARE & DESAI
LONDON
Dear Iqbal,
Further to our conversation this afternoon please
arrange to transfer the sum of $160,000 recently
received by you to Access Financial Services Limited
as per remittance details previously provided.
Thank you.
(Signed)

F.M. Kabwe
18th June, 1998”.
Meer Care and Desai wrote to their bank as follows
(omitting the addresses which are the same as in the
previous letter).

“Dear Sir,

J157

Please accept this letter as our instructions to remit,
by telegraphic transfer, the sum of US$160,000 as
follows.
Beneficiary: United Bank of Zambia.

For further Credit: Access Financial Services–
Ltd Zambia.

Bank details: Citibank N.A.
111 Wall Street
New York
10043 N.Y.

Account number: 36125729
Remitter: Meer Care & Desai.
Please debit our US dollar account number 02507404
for the above remittance, together with all costs and
charges incurred thereto.
(Signed) (Signed)
MI Meer N. Desai”

The third pair comprises a handwritten note followed
by instructions from Meer Care and Desai to their

bank as follows:
“Dear Mr. Meer.
This will serve to confirm my verbal instructions to
you to send the sum of US$150,000 to Access

J158

Financial Services Limited from their account with
you.
Thank you as always.
(Signed)

F.M. Kabwe
11/12/98”
Meer Care and Desai instructed their bank as follows:
“Dear Sir,
Please accept this letter as our instructions to remit,
by telegraphic transfer, the sum of US$150,000 as
follows:
Bank Details: Citibank N.A.
111 Wall Street
New York
10043 N.Y.

Account number: 361255729

Beneficiary: United Bank of Zambia.

For further Credit: Access Financial Services Ltd –

Zambia.
Remitter: Meer Care and Desai.
Please debit our US dollar account number 02507404
for the above remittance together with Nat West costs
and charges incurred thereto

J159

Yours faithfully,

(signed) (Signed)
MI Meer N. Desai”

The fourth pair comprise a typed facsimile message
on an AFSL letter head to Meer Care and Desai and
an instruction by the latter to their bank as follows:

“Date: December, 2, 1999
To: Mr. I. Meer – Meer Care and Desai
From: F.M. Kabwe.
Subject: Funds transfer.

No. of pages inclusive of this: (one) 1

Dear Iqbal
Please remit the US200,000 received for Access
Financial Services to the Access account at United
Bank of Zambia through the usual transfer channels.
Thank you and best regards.
(Signed)”
Meer Care and Desai wrote:
“Dear Sir,

J160

Please accept this letter as our instruction to remit by
telegraphic transfer, the sum of US$200,000 as
follows:-
Bank: Citibank N.A.

111 Wall Street
New York
10043 N.Y.

Account number: 36125729
Beneficiary: United Bank of Zambia.
For further Credit: Access Financial Services Ltd –

Zambia.
Remitter: Meer Care and Desai.
Please debit our US Dollars account number
02507404 for the above remittance together with Nat
West costs and charges incurred thereto.
Yours faithfully,
(Signed) (Signed)
MI Meer N. Desai”

The fifth and last pair of correspondence comprises a
handwritten letter on an AFSL letter head and an
instruction from Meer Care and Desai to their bank
as follows:

“July, 10, 2000

J161

Dear Mr. Meer,
Please effect the following payment request on behalf
of your clients:-

Amount:
US$236,000 (two
hundred thirty six
thousand)

Beneficiary: Access Financial Services

Limited.
Bank Detail: Already with yourselves.
The clients involved are:

System Innovation $31,000

– Access Receipt of $205,000
(ZANACO)
TOTAL $236,000

Thank you and best regards

(Signed)
Faustin Kabwe”

Meer Care and Desai wrote:

J162

“Dear Sir,
Please accept this letter as our instruction to remit, by
telegraphic transfer, the sum of US$236,000 as
follows:
Bank details: Citibank N.A.

111 Wall Street.
New York
10043 N.Y.

Account Number: 36125729
Beneficiary: United Bank of Zambia.
For further Credit: Access Financial Services

Limited -Zambia
Remitter: Meer Care & Desai.
Please debit our US dollars account number
02507404 for the above remittance together with Nat
West costs and charges incurred thereto.

Yours faithfully,
(Signed) (Signed)
MI Meer N. Desai.”

The witness also produced a statement of the AFSL
Account with Meer Care and Desai maintained by the
latter. The transactions in the foregoing correspondences

J163

is reflected in the statement (which is titled MATTER
LEDGER) except for the July, 1999 remittance of
US$236,000. The statement itself opens on 6th February,
1998 and closes on 6th June, 2002.

In cross examination PW30 replied that that the monies
shown above were not the only monies remitted by Meer
Care and Desai to AFSL. He said, however that the five
amounts above totaled US$988,848. He stated also in
effect that these transactions were also reflected on the
Zamin Account maintained at the AFSL but that the total
receipts in that account from Meer Care and Desai totaled
US$4,529,469. I notice in this connection that there are
other remittances to the AFSC shown on AFSL matter
ledger or statement kept at Meer Care and Desai besides
the five remittances talked about by the witness which
would bring the total remittances to well over the
US$988,848 of the five remittances totalled. The point
sought to be established I believe is that the five
remittances sent from Meer Care and Desai were received
at AFSL and acknowledged by posting them to the Credit of
the Zamin Account which the evidence has shown was
maintained by the AFSL as a ZSIS (Investment) account.

J164

He stated, however, that the US$988,484 was part of the
US$4,529,469.

The witness replied that once the funds were moved from
Natwest Bank to the United Bank of Zambia, AFSL became
the special owner of them.

In re-examination, PW30 stated that there were
inconsistencies between the Zamin statement kept at the
AFSL and the documents showing the five transactions
which denoted obscure banking practice contrary to the
Banking and Financial Services Act which required the
maintenance of clear and adequate records.

PW31 was Mr. Maulu Outmet Hamunjele who gave his
occupation as Senior Inspector, Non Bank Financial
Institutions at the Bank of Zambia. He stated, however
that he was seconded to the Task Force on Corruption at
the time of his testimony where he performed a forensic
audit function. He said specifically that he was the head of
a unit in the Task Force on Corruption that looked at the
financial side of investigations for which the Tas

J165

Force was created. The witness was accordingly presented
as an expert.

I recollect at this stage what I said in connection with the
testimony of PW3 regarding the approach to and status of
the testimony of an expert witness. Those observations
also apply here save for the further observation that the
defence also have submitted correctly that the role of this
witness was to place before the court all the materials used
by him in arriving at his opinion so that the court may
weigh their relative significance. I agree also with the
further submission that the expert’s opinion must be
based on the materials availed to him.

Like PW3 and PW6, PW31 was clearly related to the Task
Force, the prosecutor of this case. As such he appears to
have fallen foul of the passage I quoted from Blackstone’s
Criminal Practice, 2002 at paragraph F10.1 above.
However, I am reminded of the observations by the
State in their submissions that there are many cases in
which experts may be related to the prosecutor such as
ballistics experts forensic experts, firearms experts,
handwriting experts and pathologists all employed by the

J166

State and specifically in the case of handwriting experts,
by the Police Service which itself conducts prosecutions
through the Director of Public Prosecutions. If the
principle adumbrated in the passage was applied to the
letter it would mean that the testimony of all the experts I
have listed would be excluded. I do not think that is the
intention of the law. In my view the critical question
revolves around the independence of the expert when
giving his expert opinion. A court should therefore look for
and exclude such part of his testimony which is manifestly
biased or which clearly shows that the relationship enjoyed
between the expert and his employer has affected his
testimony so as to be unduly unfavourable to the accused.

In my review of PW31’s testimony I will restrict myself to
the opinions which he made strictly based on the materials
made available to him when he was making his analysis.

The witness stated that he was asked to make an analysis
of the movement of the monies charged in the twelve
counts in this case. He said that on the basis of
documents availed to him by the Task Force investigators
and in one case by A3, as well as interviews he had with

J167 J168

A2 and A3 and meetings he had with investigators from
the Task Force on Corruption, he made a report which he
produced to the court and on the basis of which he
testified. This report was admitted into evidence. I have
perused the report and notice that it comprises largely the
documents already admitted as evidence through the
witnesses that I have already reviewed. There are,
however, other documents which none of these witnesses
talked about and which appear for the first time by virtue
of the report. These documents appear to me to have
escaped the scrutiny of the defence. Since they are part of
the report now admitted as evidence I will consider what
weight to attach to them as I deal with each one of them.

The modus operandi of the witness’s analysis or tracing
exercise was to begin with an instruction by the Ministry of
Finance to the Bank of Zambia to remit a sum of money to
the Zamtrop account in London for the benefit of either
Wilbain Technologies Incorporated or Systems Innovations
Incorporated. These instructions were also the subject of
the testimony of PW18, the Assistant Director in the
Finance Department at Bank of Zambia.

PW31 then looked at the Zamtrop Bank Statement to
confirm the arrival or receipt of the funds from the
Ministry of Finance through the Bank of Zambia. He then
looked for payments from the Zamtrop Account of monies
which he considered related to the monies just received
from the Ministry of Finance. This was also the testimony
of most of the other witnesses. In this way he drew a
relationship between the Ministry of Finance remittances
to the payments allegedly made to accused 1’s children
from the Zamtrop Account in London.

The witness also followed up other payments from the
Zamtrop Account linking them to wherever the monies
were finally expended. In this way he also made
connections between the Ministry of Finance remittances
to the Zamtrop Account, from there to the Meer Care and
Desai account at Natwest Bank, then to the AFSL Account
at the United Bank of Zambia and eventually to the
ultimate recipients. The witness identified entries of these
amounts denoting receipts and payments within the
transit entities wherever the relevant documents were
available (Part of PW10’s testimony).

J169

With regard to the sum of US$50,000 in counts one and
four allegedly paid towards the purchase of the Roma
property the witness referred to the sums of US$650,000
and US$250,000 remitted by the Ministry of Finance to the
Zamtrop Account on 14th April, 1998 but whose value date
is 21st April, 1998 for the intended benefit of Systems
Innovations and Wilbain Incorporated respectively (see also
evidence of PW18). The two amounts are shown as
received on the Zamtrop statement on the 21st April, 1998
and 28th April, 1998 respectively. (Per PW26 also).
The balance before the receipt of those funds was
US$17,495.46. This brought the balance as at 22nd April,
1998 to US$917,495.46.

There then followed payments which the bank debited
against the funds available. One of the amounts debited is
the sum of US$466,000 which was transferred to Meer
Care and Desai on 24th April, 1998. There is no evidence
of money being received or how it was expended. Contrary
to PW31’s report and the submissions by the State the
Harptree ledger at Meer Care has no such credit allocated
at Meer Care and Desai.

J170

The witness referred to a sum of US352,484 appearing in
the AFSL financial ledger kept at Meer Care and Desai.
The narration shows that this amount was transferred
from an entity called Harptree on 7th May, 1998. The
Harptree ledger put in evidence has no such entry. No
relationship between the sum of US$466,000 and the
US$352,484 is established. It is also not stated were the
money from Harptree came from. The witness went on to
state that on the same day that the US$352,484 was
received, A3 notified A2 that they needed to be reimbursed
the sum of US$242,484 for various client affairs handled
through Meer Care and Desai. A2 endorsed on the note a
request to “Dear Iqbal” to remit that amount to the AFSL
account at the United Bank of Zambia. Messrs Meer Care
and Desai consequently instructed their bank Natwest to
effect the transfer on 12th May, 1998. The AFSL account
at the United Bank of Zambia was in funds to the tune of
US$242,404 less bank charges. This receipt of funds was
acknowledged within the AFSL books of account in the
equivalent sum of K460,568,911. This amount was then
broken down and credited to various accounts and the
Zamdaell account got US$50,000 (or K95,000,000) on 14th
May, 1998. These transactions are supported by

J171

documented entries as shown through the various
prosecution witnesses who testified.

The Zamdaell statement shows that on 14th May, 1998,
K95,000,000 was received with no reference to its source.
On the same day the same amount was paid out with a
reference number 004938 which as the evidence of the
witnesses shows is the number of the cheque paid to
Standard Chartered Bank in pursuit of the purchase of the
Roma property.

Interestingly and as PW31 pointed out there is also
recorded a payment out from the Zamin Dollar Account of
US$50,000 (equivalent to K95,000,000) on the 14th May,
1998 on the same cheque number. The obvious question
is which account paid for the transaction.

It is not difficulty in these circumstances to share some of
the views expressed by PW31 regarding the Zamin
account. Its authenticity is questionable. There is no
account number on the statement and it is devoid of
running balances. The statement infact serves no other
purpose than to list down the monies received and those

J172

paid out over the period to which it relates. I am not able
to say, however, that the Zamdaell account is more
credible particularly bearing in mind that the Roma
property was registered in the name of Zamdaell Limited
which is said to be owned by A 2 and A 3.

It may, of course, be that the Zamin account did exist but
the document produced in this case may not be an
adequate reflection of what the account recorded if at all.
I will not dismiss them out of hand and will consider the
issues relevant to them as they fall due and keeping in
mind that the documents credibility has been questioned.

PW31 concluded that in his analysis the US$50,000 or
K95 million used towards the purchase of the Roma
property was part of Government funds transmitted to the
Zamtrop Account from the Ministry of Finance and that
the Roma property was remuneration to PW14 for having
represented A1 in the Presidential Election Petition and
agreed between PW13 and A1 in the agreement of 7th
February, 1997.

J173

Coming to the US$125,000 charged in counts two and five
the witness’s evidence was that on 11th June, 1998 the
Ministry of Finance remitted two amounts of US$650,000
and US$250,000 (see evidence of PW26) for the purpose of
paying Wilbain Technologies and Systems Innovations.
The balance in the Zamtrop Account before these
remittances was US$10,304.73 as at 2nd June, 1998. After
the receipt of the money the Zamtrop statement shows that
several payments were made out among them sums of
US$150,000 and US$10,000 on 12th June, 1998 and 16th
June, 1998 respectively to Meer Care and Desai. The Meer
Care and Desai account at Natwest shows a receipt of the
monies less bank charges which the firm credited to the
AFSL account on the 12th June, 1998 and 16th June, 1998
respectively. It is notable that the instruction to pay at the
ZNCB London branch bears two signatures. In view of the
mandates I am certain that one of them is that of the
Director General or Permanent Secretary of the ZSIS, Mr.

X.F Chungu.
On 18th June, 1998 A3 wrote to “Mr.IGBAL MEER” of Meer
Care and Desai requesting the transfer of the US$160,000
“recently” received to the AFSL account at the United Bank

J174

of Zambia. On 23rd June, 1998, Mr. MI Meer and Mr.
Desai signed an instruction to their bank to remit the sum
of US$160,000 to the AFSL account at the United Bank of
Zambia. The AFSL financial ledger at Meer Care and Desai
was accordingly debited the sum of US$160,000 inclusive
of bank charges transferred to the AFSL on the 24th June,
1998. The AFSL statement at the United Bank of Zambia
acknowledged the receipt of the US$160,000.

On the same day, 24th June, 1998, Messrs Cave Malik and
Company addressed a letter to the Executive Director of
the AFSL (A3) to “arrange” a cheque to pay the balance of
US$125,000 for the Roma property. The letter has
endorsements such as “SM-please pay Monday”,
“….please pay and debit Zamdael account 26/6/98”. Two
other endorsements simply said “pay” with the dates
“28/6/98”. On 8th July, 1998 the AFSL account at UBZ
was debited with the sum of US$125,000 in favour of
Messrs D.H. Kemp who were acting for the vendors of the
Roma property, Shonga Steel.

PW31’s view is that the US$125,000 is traceable back to
the total of US$900,000 remitted by the Ministry of

J175 J176

Finance to the Zamtrop Account and is therefore
Government Money. This amount is the balance of the
US$175,000 purchase price demanded by Shonga Steel for
the property registered in the name of Zamdaell Limited
but whose beneficial owner is PW14.

It appears to be the prosecutions position that going by the
remuneration agreement between A1 and PW14 on one
hand and A2’s and A3’s interest in Zamdaell Limited, the
three accused persons are participants in the execution of
the common purpose of using Government funds to
consummate the agreement.

In relation to the sum of US$148,000 charged in counts
three and six, PW31’s evidence based on the documents is
that on 30th October, 1998 a total of US$900,000 was
remitted to the Zamtrop Account by the Bank of Zambia on
the instructions of the Ministry of Finance. The Zamtrop
Account statement shows that the balance before the
receipt of those funds was US9,144.75 as at 26th October,
1998.

On 7th December, 1998, the mandate holders signed for
the remittance of a sum of US$150,000 to Meer Care and
Desai. The witness observed that the instruction was
faxed from the AFSL at 17.48 hours. This is actually
shown on the copy of the document produced as evidence.

I would like to state here, however that the Zamtrop
statement shows that the funds received on 30th October,
1998 were exhausted by 19th November, 1998 leaving a
debit balance of US$4,262.37. This debit was however
cleared by funds totaling US$900,000 received on 4th
December, 1998 with the narration “FUNDS RECEIVED
B/O BIS” The US$150,000 could therefore, not have been
paid from the US$900,000 received in October, 1998.

The testimony of PW24, however, shows that the funds
received on 4th December, 1998 came from the Ministry of
Finance, I will accordingly proceed on the assumption that
the US$150,000 is alleged to have come from the funds
remitted on 4th December, 1998 and not those of 30th
October, 1998.

J177

The Zamtrop statement shows several payments from the
funds received on 4th December, 1998 before the
US$150,000 was remitted to Meer Care and Desai. The
Meer Care and Desai account at Natwest recorded a receipt
of US$149,987.66 (after deducting bank charges) and the
AFSL account at Meer Care and Desai was duly credited
with the amount.

On 11th December 1998 A2 wrote to “Dear Mr. Meer”
instructing him to remit US$150,000 to AFSL “from their
account with you” On 15th December, 1998 Meer Care and
Desai instructed Natwest Bank to remit US$150,000 to the
AFSL account at the United Bank of Zambia. Natwest
complied.
The
AFSL account at the United Bank of
Zambia shows a receipt of US$149,980 on the 16th
December, 1998 from Meer Care and Desai. The AFSL
ledger at Meer Care also shows a debit of US$150,611.11
which includes bank charges I believe.

One would have expected that the United Bank of Zambia
should have received the whole US150,000 since the bank
charges were debited from the Meer Care and Desai

J178

account with Natwest who in turn recouped themselves
from their AFSL account for the charges suffered.

Within the books of the AFSL, the sum of US$149,980
converted to K351,703,100 is noted (in the cash book) and
allocated to the Zamdaell account in AFSL. The Zamdaell
dollar transaction account statement shows a receipt of
the Kwacha amount. Both transactions are dated 17th
December, 1998.

On 21st December, 1998 one E. Florence sent a fax
message to A3 containing bank account details at the bank
of Scotland. On the copy of the Fax are endorsed
instructions to transfer US$148,000 to E. Florence’s
account and to debit dollar purchase. The instructions
were effected and the sum of US$148,030 inclusive of
bank charges debited from the AFSL account at the United
Bank of Zambia.

According to PW31 the US$148,000 was part of the
US$900,000 from the Ministry of Finance paid for the
house given to PW13 as remuneration for representing A1
in the Presidential Election Petition. It seems to be the

J179

position of the prosecution that just as they allege in
relation to counts one and four and counts two and five,
the three accused participated in the common purpose of
using Government funds to consummate the remuneration
agreement between A1 and PW13 as the house was first
registered under Zamdaell Limited.

The witness proceeded to deal with the sums of K25
million and K43 million in counts eleven and twelve.
He began with the total sum of US$1 million deposited into
the Zamtrop Account on 11th November, 1999 from the
Ministry of Finance via the Bank of Zambia. The balance
in the account on 10th November, 1999 was
US$100,975.66.

On 11th November, 1999 an instruction signed by one
signatory was given to transfer US$200,000 to Meer Care
and Desai’s account at Natwest. A debit of the amount is
reflected on the Zamtrop statement on 12th November,
1999. On 25th November, 1999 Natwest advised Meer Care
and Desai that their account had been credited with
US$199,897.86 after deducting bank charges and the
statement of account recorded the transaction.

J180

On 2nd December, 1999, accused 2 wrote to Mr. I Meer of
Meer Care and Desai asking the latter to remit
US$200,000 “received for Access Financial Services” to the
AFSL account at the United Bank of Zambia “through the
usual transfer channels”. On the same day MI Meer and

N. Desai instructed their bank to transfer the money and a
debit for US$200,058.14 inclusive of bank charges was
entered against the Meer Care and Desai account with
Natwest. The United Bank of Zambia Account also
recorded a receipt of US$199,980 on 4th December, 1999.
This was in turn acknowledged in the receipts cash book
where the amount was equated to K533,946,600 and
credited as the document shows, to the Meer Care and
Desai Sundry Creditors account maintained at the AFSL
on the 13th December, 1999.
On 29th December, 1999, the sum of K533,946,600 was
transferred with the narration “Meer and Care – Transfer of
bala”. Worthy of note is the fact that the account was in
debt to the tune of K207,070,755. The transfer increased
the debit balance to K741,016,955. There then followed a

J181

credit of K741,016,955 which cleared the debit and closed
the account on a zero balance.

The foregoing notwithstanding an account called Dollar
transaction, a Sundry debtor account purported to receive
the sum of K533,946,600 with the narration “Dollar
Purchase – Transfer of” on the 29th December, 1999. The
number of this account is the same as that of the Zamdaell
account maintained at AFSL. (The accounts are probably
one and the same). Before the transfer, the balance in this
account was K525,646,664.13. The following day, 30th
December, 1999, the K533,946,600 was reallocated on
account of a previous misposting (see narration) but it is
not shown were the money went.

The same figure of K533,946,600 reappears on the same
date and it is PW31’s view that, the money was sent there
from an account called DGH-London Deposit, also a
Sundry Creditors account with the narration “realloc of
amts prev’misposte” obviously saying “reallocation of
amounts previously misposted.” Notably the DGH London
Deposit opens and closes on the same day. The
reallocated amount creates the opening balance and on the

J182

same day two other amounts are credited, one for
K20,443,223.96 and another for K34,100,000. Two other
amounts are paid out on the same day of K75,481,510.37
and K56,216,741. The balance left at the end of the day is
K460,791,572.59. This last amount re-appears on 1st
January, 2000 as a balance brought forward which is
added to an opening balance of K607,791,572.59.

On 29th April, 2000 a debit is entered reversing the balance
brought forward of K460,791,572.59 leaving only the
balance of K607,791,572.59. On 31st May, 2000 this last
amount is reallocated to “jv80003”. It is certainly not clear
where the reversed K460,791.59 goes. What is clear is
that that amount is no longer in the account. There is no
explanation about the source of the K607,791,572.59 but
the journal Voucher to which the entry of 31st May, 2000
refers shows a re-allocation of this amount broken down as
K147,000,000 to DGH – M/C, K70,371,333.22 to AFSL
Client Account and K390,420,239.37 to Dollar purchase.
The sum of K147,000,000 is shown as received in an
account called DGH – Working Capital on 31st May, 2000
as a re-allocation. Before the receipt of these funds the
funds in the account had been exhausted. After the

J183

receipt of the money a sum of K157,500,000 was paid out
on account of Motorcity/Munda leaving a debit balance of
K10,500,000 which closed the account.

According to PW31 and as shown by the Zamin/AFSL
Client Services account the K70,371,333.22 re-allocated
from the DGH London deposit account as part of the
K607,791,572.59 on June, 2000 cleared an overdraft of
K25 million allegedly used to pay for A3’s shares in AFSL.
Notably again the transfer of K25 million to A3’s account is
the first entry so that the account began with a debit on
29th April, 2000. On 30th December, 2000 the account
records another payment of K43 million to Pukupan on
account of A3’s shares in that entity.

The witness formed the view that the sum of K25 million
and K43 million were part of the US$1,000,000 credited to
the Zamtrop account from the Ministry of Finance.

My review of the evidence above has shown that going by
PW31’s tracing work the US$200,000 attributed to the
Zamtrop account can be followed only up to the sum of
K460,791,572.59 in the DGH London account were it

J184

peters out. There is clearly no connection between that
amount and the sum of K607,791,572.59 whose source is
not explained. It is highly improbable on the evidence that
PW31’s conclusion can be justified.

I turn now to PW31’s analysis of the sum of US$205,000 in
count 10. The starting point is again the sum of US$3
million remitted to the Zamtrop account by the Ministry of
Finance through the Bank of Zambia between the 21st
June, 2000 and 23rd June, 2000. The balance before the
receipt of these amounts was a debit balance of
US$40,270.20. On 7th July, 2000 one of the mandate
holders signed an instruction to remit the sum of
US$205,000 to the Meer Care and Desai account at
Natwest bank.. By then the Zamtrop account had a
balance of US$223,358 other debits having been made
earlier from the US$3 million including another payment of
US$300,000 to Meer Care and Desai on 26th June, 2000.

There is no evidence of a corresponding receipt of the
US$205,000 at Meer Care and Desai’s account at Natwest.
However the AFSL account maintained at Meer Care and
Desai recorded a receipt of US$204,908 on 7th July, 2000

J185

with the narration “Zamtrop” which increased the balance
from US$105,522.24 to US$310,510.94.

On 10th July, 2000, accused 2 instructed “Mr. Meer” in a
letter to pay US$236,000 for the benefit of System
Innovations (US$31,000) and AFSL (US$205,000).
Meer Care and Desai in turn instructed their bank to remit
the money to the AFSL account at the United Bank of
Zambia. The transactions were effected between 10th July,
2000 and 11th July 2000 as the documents show. The
point I will draw from this transaction is that while the
sum of US$205,000 could be attributed to the similar
amount paid out from the Zamtrop account on 7th July,
2000, nothing is said about the source of the US$31,000.
Meer Care and Desai, according to the AFSL financial
ledger which they maintained recorded a payment out to
the AFSL on 12th July, 2000 of a sum of US$236,059.99
which included bank charges. There is no indication on
the ledger that an amount approximating the US$31,000
was received into the account. Obviously those funds
came from the funds held in the account. After all there
was already a sum of US$105,522.24 when the
US$205,000 (or more appropriately US$204,908) was put

J186

in. The state’s submission that the US$31,000 came from
Systems Innovations is clearly not correct because A2 did
not say so in his instruction.

On 13th July, 2000 the United Bank of Zambia
acknowledged a receipt of US$236,000 to the AFSL
account in respect of the funds received from Meer Care
and Desai. What followed thereafter is US$31,000 was
credited to an account called SYBLIS (It is not clear
whether this account is related to Systems Innovations);
US$80,000 to the Leyland Daf Account; US$30,000 to
Lusaka Trust and Corporate Services, US$20,000 to the
computer Project account; and US$75,000 to the
Mambilima House account.

The monies which were converted to the kwacha equivalent
then moved in the manner explained by PW10 from the
documents.

Recalling the evidence of PW10, the Leyland allocation
moved to the Leyland Daf Account at Access Leasing
Limited having earned interest along the way before ending
up in the RAZ account. The Lusaka Trust and Corporate

J187

Services allocation was used up within that account. The
computer Project allocation allegedly ended up in the RAZ
account as payment to AFSL for consultancy services
allegedly undertaken by the company on behalf of the
Roan Antelope Mining Corporation of Zambia (RAMCOZ).
The Mambilima house allocation ended up in the Epakor
account of PW12 towards the repayment of a loan.

PW31 opined that the US$205,000 was part of
Government funds remitted to the Zamtrop Account from
the Ministry of Finance and that A2 and A3 benefited from
it by virtue of their interests in the entities represented by
the investment accounts to which the money was
distributed.

With regard to the sum of US$123,989.25 charged in
count seven the witness started with the total sum of
US$900,000 received by the Zamtrop Account from the
Ministry of Finance on 4th December 1998. Before these
funds the balance in the account was a debit of
US$4,274.25 which they cleared. On 7th December 1998 a
total of US$81,275.25 (£47,950) cash was withdrawn from
the account by order of two signatories who, without

J188

doubt, included Mr. Xavier Chungu. On 8th December
1998 US$ 13,560 (£8000) was paid to Hertfordshire
University for Hortensia Chiluba’s fees while Hortensia
collected the balance of US$67,715.25 (£39,950). Another
amount of US$42,714 (£25200) was withdrawn by order of
two signatories and paid to Christchurch College for Hellen
Chiluba’s fees. Notably, the instructions to pay the
£47,950 and £25200 appear to have been faxed from the
AFSL offices at Lusaka. This confirms some relationship
between at least one of the signatories to the Zamtrop
Account at the ZNCB London and the AFSL. The Zamtrop
statement confirms these payments and PW31 posited the
view that the total sum of US$123,989.25 was part of the
US$900,000 Government funds received from the Ministry
of Finance to Service the Systems Iniovations/Wilbain
Technologies debts.

In relation to the sum of US$27,906 charged in count
eight, PW31 attributes this amount to the sum of
US$1,000,000 received from the Ministry of Finance into
the Zamtrop Account. On 21st September 1999. Before
that date the balance in the account was a credit of
US$365,090. This last balance is certainly attributable to

J189

previous credits which include another US$1,000,000
received from the Ministry of Finance on 2nd September
1999, US$ 78,500 received “B/O OFF OF THE
PRESIDENT” on 2nd August 1999, and a sum or
US$1,000,000 received “B/O LEADENHALL TRUST CO
BIS BARCLAYS NASSAU.”

On 14th October 1999 an instruction to pay out of the
account the sum of £21,611 was given and from this
amount £16,611 (US$27,906.48) was paid to the
Cambridge Centre for sixth form studies for Hellen
Chiluba’s 3rd term fees.

PW31 formed the opinion that the US$27,906.48 was part
of the US$1,000,000 received from the Ministry of Finance
on 21st September 1999.

Finally, in relation to the sum of US$33,000 charged in
count nine, PW31 traced the money to the sum of
US$1,000,000 received into the account on 11th November
1999. Before that the balance in the account was
US$100,975. Even here I would like to draw attention to
the credits of US$78,500 and US$1,000,000 received on

J190

2nd August 1999 and 30th July 1999 whose expenditure is
not explained accounting wise.

On 22nd December 1999, US$33,000 was paid to A1’s
children in sums of US$10,000 to Hulda, US$10,000 to
Hortensia, US$6000 to Frederick and US$7,000 to Hellen
Chiluba and the account shows this transaction. It is,
however, notable that on 1st December 1999 there was a
credit of US$15,000 from Charnoby. A further US$20,000
was received on the same 22nd December 1999 from Mr.
and Mrs. Rathi who put in a further US$20000 the next
day on 23rd December 1999.

PW31 still formed the view that the sum of US$33,000
came from the sum of US$1,000,000 received from the
Ministry of Finance.

PW31 was cross examined. He replied that a total of
US$9,000,000 went into the Zamtrop Account from third
party sources.
He said that
more than US$8,500,000
came from private sources and he did not find out what
those monies were meant for or how they were used. He
said that Mr. Anuj K Rathi told him that he sent money to

J191

the Zamtrop Account. He did not talk to Mr. Xavier
Chungu who was managing the Zamtrop Account because
the documents he had were sufficient.

The witness conceded that Mr. Chungu may have used the
money from private sources for his operations and to pay
private individuals. He stated that money from private
sources commingled with that from the Ministry of
Finance. He insisted, however, that the monies in the
charges came from the Ministry of Finance. He said that
he did not reconcile the monies from third party sources
and the monies from the Ministry of Finance. He said that
it was not necessary because the scope of his work was
limited to what the investigating officers asked of him.

The witness stated that he learnt from Mrs. Bennet, the
operations manager at the Zambia National Commercial
Bank London of an account called picture in which monies
from private sources meant for A1 were accounted for. He
stated also that he learnt that the “picture” transactions
were domiciled within the Zamtrop Account but that Mrs.
Bennet kept a separate spread sheet for that account. He
also learnt that the beneficiaries from this account were

J192

mainly A1’s children and the former Chief Justice, Mr.
Ngulube and his children. Much of this was contained in a
statement recorded from Mrs. Bennet by officers of the Anti
Corruption Commission on 21st July 2003 which was put
to PW31.

PW 31 was referred also to another statement by Mrs.
Beauty Kaluba, the Manager at the Zambia National
Commercial Bank London, which she made to officers of
the Anti Corruption Commission also on 21st July 2003.
Mrs. Kaluba confirmed that the Zamtrop Account received
other payments which Mr. Xavier Chungu advised her
were meant for A1 who would be communicating to her as
to the money’s disbursements. She said that although the
money was placed in the Zamtrop Account it was
disbursed as non Zamtrop. She confirmed that from those
monies payments were made to A1’s children. She
explained that the money initially kept in cash was
subsequently kept in the Zamtrop Account but in a
spreadsheet named picture. PW31 confirmed having had
sight of the spreadsheet and that Mrs. Kaluba and Mrs.
Bennet managed the funds under “picture”. He stated that

J193

he had met Mrs. Bennet before he did his tracing work but
did not mention that in his report.

PW31 stated that the remuneration agreement between A1
and the two Lawyers PW13 and PW14 can best be
explained by themselves. He concluded by saying that he
was not aware of the existence of the 1970 Finance
Charter.

PW31 was re-examined. He recalled that Mr. Xavier
Chungu had written to Wilbain how to deal with the
monies sent to them. He said that part of the US$8.5
million came from Wilbain and Mr. Shansonga who used to
receive money from the Zamtrop Account. He suggested
that although there was no evidence to support the fact the
monies from Wilbain and Mr. Shansonga may have been
Government, he maintained that the monies involved in
the charges came from the Ministry of Finance.
He
emphasized that the payments from the Zamtrop Account
are supported by the foreign exchange applications (which
are the instructions) and that it is the Zamtrop Account
which was debited.

J194

PW31 stated that according to Mrs. Bennet the private
funds started being put in the Zamtrop Account in
January 2001 to which the spreadsheet transactions
related. He said that according to Mrs. Bennet, the private
money before 2001 was being kept either in cash or in a
suspense Account.

The witness stated that the Financial Regulations prohibit
the depositing of private funds in Government Accounts.

He replied that monies received from sources such as
Lubbock Fine, Charmoby and Hesmar Trading have
nothing to do with the charges.

The witness read the letters purportedly written by Mr.
Xavier Chungu to Mr. James Allen Mills (of Wilbain
Technology) and Mr. G.A Ruskorsky of Samanco
Inc.
arranging that the ZSIS would be sending funds to the two
companies from time to time for certain projects. They
were to put the funds in their company accounts from
which disbursements would be made on Mr. Chungu’s
instructions.

J195

He said that he did not mention Mrs. Kaluba and Mrs.
Bennet in his report because they were not covered by the
terms of his reference.

On the remuneration agreement between A1 and PW13
and PW14 he said that it provided evidence that the
payment was to be in the form of two residential
properties. He ended by saying that the charges were not
about private funds.

PW32 was Mr. Frank van Dixhoorn who gave his
occupation as consultant and that he was the Managing
Director of a Company called Ravenscourt Zambia Limited
trading as Pukupan Safari Lodge.

The witness stated that A3 was a shareholder in
Ravenscourt Zambia/Pukupan Safari Lodge. He said that
A3 paid US$10,000 (K43 million) for his shares. The
witness identified the message that he sent to A3 asking
him to pay for his shares.

PW32 was not cross-examined.

J196

PW 33 was Mr. Vincent Machila, a senior Investigations
officer in the Anti-Corruption Commission. The witness
stated that in 2001, the Anti Corruption Commission
received a complaint of Abuse of Office against the Director
General of the Office of the President in respect of funds in
the Zamtrop Account. He said that the allegation was
further that the funds were used to purchase the
properties given to PW13 and PW14 on account of non
government related matters.

The witness stated that he interviewed PW13 and PW14
who gave him statements. The witness tendered the
statements as part of his evidence together with other
documents pertaining to the charges in counts one and
four, two and five and three and six. These documents
were admitted after considering the defence objection.
standby my ruling admitting the documents.

In the statements PW13 and PW14 confirmed that they
each received the property as remuneration for having
represented A1 in the Presidential election petition.
According to PW13’s statement A1 assured them that the
properties were bought from his personal money put in the

J197

Zamtrop Account. This allayed the witnesses’ fears after
listening to the President Levy Mwanawasa’s address to
Parliament, that Government funds may have been used to
purchase the properties. PW32, however, stated that his
investigations including the tracing work of PW’31 revealed
that Government funds had been used. The witness stated
that he charged and arrested the three accused as shown
in counts one to six.

In cross-examination PW33 replied that A1 had possession
of the US$50,000 and the US$125,000 after it left the
Treasury (Ministry of Finance) and that payment for the
Roma Property was effected. The same is the witness’s
view of the sum of US$148,000 and by the same token the
witness assumed A2 and A3 were guilty of theft even
though he was unable to state what it is that they did to
consummate the theft.

The witness stated that there were private funds in the
Zamtrop Account but he did not ask PW31 to trace them
because the issue did not arise.

J198

He stated that the AFSL leased out property on behalf of
its clients and that they also held funds for clients and
gave out loans. He said that the funds were kept in atleast
three bank accounts at the United Bank of Zambia and
Cavmont Merchant Bank. He said that although these
funds commingled records were kept for each client so that
it was possible to identify their funds.

The witness stated that the ZSIS was a client of the ASFL.
He said that he spoke to the Director General of the ZSIS
(Mr. Xavier Chungu) who did not tell him everything. He
concluded that ZSIS funds which are Government funds
had been stolen. He said, however, that the ZSIS did not
complain about any loss of its funds at the AFSL. He said
that the Director General was the person who should
explain the transactions.

He stated that the Auditor General is the officer tasked to
find out how Government funds have been utilized but he
did not use that office. Instead he enlisted the assistance
of PW31. He said that the registered owner of the Roma
property was Zamdaell Limited and that there was a
relationship between that entity and the ZSIS and

J199

controlled by the ZSIS but that he did not know the true
owners of it. He did not ask A1 about his relationship to
Zamdaell.

The witness stated that there was an assignment
purporting to transfer the Roma property from Zamdaell to
PW14 at a consideration of K180 million. He said that
PW14 told him that the assignment was meant merely to
facilitate the registration of the property in his name. He
said also that there is a (duly registered) assignment of the
Kabulonga property to PW13 at a consideration of K140
million.

PW33 stated that the purchase of the two properties by the
AFSL on behalf of the Zamdaell was within its lawful
activities from funds belonging to Zamdaell.

The witness stated that there were numerous documents
at the AFSL but that he only took those that he deemed to
be relevant to his investigation. He conceded, though, that
he may have left behind other documents which are
relevant to this case and which may put a different
complexion on the transactions.

J200

In re-examination PW33 replied that his investigations
were thorough. I doubt this. He said that the Auditor
General was not a criminal investigator but was merely
concerned with the expenditure of public funds. He said
the Director General ZSIS did not complain about the loss
of funds because he was part and parcel of the scheme (to
steal from Government). He stated that A2 and A3
purchased the properties which A1 gave to PW13 and
PW14.

PW34 was Mr. Trevor Nyoni a Chief Investigations Officer
in the Anti Corruption Commission. He investigated the
alleged theft of the funds in counts seven, eight and nine
of US$123, 980.25, US$27, 906.48 and US$33, 000
respectively from the Zamtrop Account. He arrested and
charged A1 for those amounts.

In cross examination the witness replied that he is one of
the investigators who commissioned PW31 to analyze the
Zamtrop Account. He was aware that the witness was not
a Civil Servant in the strict sense and that the Public Audit
Act, makes it an offence for any person other then the

J201

Auditor General to access the books and other documents
of the ZSIS subject to the waiver of the restriction by the
President under the ZSIS Act which he claimed the
President had granted.

The witness stated that he has heard of the 1970 Finance
Charter but has never seen it. He was aware that the
charter concerns the operations of the ZSIS and that he
should have familiarized himself with its provisions. He
said that he did not know what the charter says about
private funds in an intelligence account or about funding
the account. He was aware that about US$8.5 million of
private funds went into the account from as early as 22nd
January 1997 until 26th March 2001. He did not
investigate how these funds were used by the account
holder. He did not get any explanations from the private
sources that put money into the account.

The witness stated that the payments in the three counts
were done in London and the money never moved to
Lusaka contrary to the allegations in the particulars of
offence.

J202

He stated that he was aware of Mrs. Kaluba’s statement
whom he talked to. The statement of Mrs. Bennet was also
put to him. He said that the entry of 19th February 1999
for US$249, 973.20 from an undisclosed customer and
which was put in the suspense account to await the
remitter’s details was consistent with Mrs. Bennets’
explanation that initially money used to be kept in cash or
posted to the suspense Account. He stated that the
monies in the three counts were paid from the Zamtrop
Account on the authority of the authorized signatory, Mr.
Xavier Chungu.

PW34 was re-examined. He replied that the period at issue
is October 2000 to 2001. He said that it was wrong to
keep private funds in a Government account. He said that
funds in the ZSIS account were for operations of the ZSIS
and not for a person’s leisure, school fees or to purchase
property.

The last witness for the prosecution PW35 was Mr. Friday
Tembo also a Senior Investigations Officer at the Anti
Corruption Commission. The witness stated that he was
seconded to the Task Force on Corruption and investigated

J203

the offences in counts ten, eleven and twelve relating to A2
and A3 who allegedly stole the sums of US$205, 000 from
the Zamtrop Account and K25 million and K43 million
from the Zamin Account.
He
collected documents
pertaining to the transactions and interviewed relevant
witnesses. He arrested and charged the duo for the three
offences.

PW35 was cross-examined. The witness replied that in
relation to the sum of US$205,000, A2 originated the
instructions that moved the money from Meer Care and
Desai while A3’s role was not clear from the witness’s
response. There was no movement of funds in the United
Bank of Zambia account of AFSL. In relation to the K25
million and K43 million in counts 11 and 12 the witness
stated that A2 had no role to play while A3 gave
instructions to pay the money and that the money left the
AFSL account at the United Bank of Zambia.

In re-examination, PW35 replied that A2’s role is explained
by his suggestion to Mr. Rozan to create a fictitious
account to allocate free shares to A3.

J204

EVIDENCE OF THE DEFENCE

I will review the evidence of the defence in the order in
which it was presented. As I stated at the beginning of this
judgment, A2 and A3 gave evidence on oath. A1 made an
unsworn statement. In relation to A1, I adopt the
submission by the learned defence Counsel regarding the
view of the law of statements not given on oath. Such a
statement is not dismissed out of hand.
It must
be
considered in the light of other evidence available. Its
impact is dependent on the availability of other stronger
testimony.

Apart from the evidence of the accused persons there was
also the testimony of nine witnesses.

A2 opened the defence and gave evidence in his behalf as
DW1. He stated that he was a part-time business
consultant at the time of his testimony. He treated the
Court to a discourse of his education, employment and
business background and development. Suffice to say that
the narrative informed the Court about A2’s experience in
the accounting field which led to the setting up of the AFSL
and Access Leasing Limited.

J205

A2 stated that he started the AFSL with A3 and that he
involved his wife, Mrs. Ireen Kabwe, who became a
shareholder with an interest of 70%. He also involved a
Frenchman, Mr. Jean Pierre Rozan who took up the
remaining 30% of the shares.
The
two shareholders
provided the initial capital base of the company. Later A2
and PW12 joined as shareholders to provide the needed
additional capital. A2 testified that the AFSL focused on
financial consulting, leasing, investment services and
various aspects of financial intermediation which
responded to the needs of the client.

In terms of structure there was a Board of Directors
headed by PW12 as Chairman. A2 was the corporate head
at management level with the title Chief Executive
Director. There were managers below them responsible for
the various sections of the AFSL section which included
leasing/lending, consultancy services, property
management and finance who reported to a General
Manager. There were the support staff and systems
through which the business of the company was

J206

conducted. The company developed and expanded its
customer base.

A2 explained the leasing, consultancy and the property
management businesses. In relation to the last item he
explained that the company acquired and managed
properties on behalf of clients and the income accrued
was fully accounted for to the investor.

He also talked about an investment called the Zam Access
note which bore better returns for those who invested in it
at rates higher than those offered by savings in commercial
banks.

A2 stated that the above scenario applied whether the
investor was a client or an institution. He said that in
most cases excluding the leasing and lending businesses
the client would provide the resources. The clients
included traders, taxi operators, bus operators,
construction companies and other business entities. They
managed properties for organizations such as Barclays
Pension Fund, the Catholic Diocese of Lusaka and the
Zambia Security Intelligence Services. He said that in the

J207

consultancy services arena the company took part in the
restructuring effort for RAMCOZ the company that owned
Luanshya Copper Mine and the company earned at least
US$250, 000.

A2 testified further that the AFSL was also contracted by
the ZSIS to undertake a number of assignments within
and outside Zambia.

The accused person narrated how among other notable
efforts the AFSL attempted to secure the purchase of Ndola
Lime for a Belgian Company called Socomer. He and Mr.
Rozan allegedly played key roles but the Zambia
Privatization Agency refused to accept their bid. A2 stated
that had it succeeded the investment would have taken on
a significant local shareholding to empower indigenous
investors including that of AFSL.

A2 also narrated how the AFSL assisted a foreign investor
called Daniel Israel to acquire an interest in the Lottery
business in Zambia. He also mentioned an effort by his
company to assist Zambian Airways in which the lead
prosecutor in this case was a representative of the airline.

J208

On how some of the shareholders related to the AFSL, A2
testified that he met A3 when they both worked for the
Chibote Group of Companies in the 1980’s. He invited him
to join him in setting up the new company called AFSL.
Regarding Mr. Jean Pierre Rozan, A2 stated that the
Frenchman was once Consul General for France to Zambia
and served as a director in a French Company in which
Government through the Zambia Consolidated Copper
Mines (ZCCM) had an interest. He stated that because of
Mr. Rozan’s extensive experience, influence and range of
contacts, he was an invaluable acquaintance in the
promotion of the AFSL. He said that Mr. Rozan secured
loan funds for the AFSL from his own companies.

Regarding Mr. Francis Kaunda, A2 stated that he knew the
former when he was chairman of the ZCCM. He said that
Mr. Kaunda later joined ITM the holding company to which
the Chibote Group of Companies belonged and for which
A2 also worked. He said Mr. Kaunda had very wide
experience. He said also that Mr. Kaunda’s brother Chad
was a close friend of his.

J209

A2 also explained his relationship with Meer Care and
Desai. He stated that he met Mr. Meer, a partner in the
law firm while they were both working for the ITM Group.
Mr. Meer was the group in house counsel before he
established Meer Care and Desai. He engaged Mr. Meer in
the acquisition of an apartment in London between 1989
and 1990 and later when he sold it. He discussed with
him regarding the formation of the AFSL and that the firm
would be the London Link whenever AFSL dealt with
foreign based clients. In this way AFSL was able to service
clients like Mr. Stanley Tampiyapa in the acquisition of the

T.G. Travel business in Zambia which was in financial dire
straits. They also acquired through Meer Care and Desai a
property in Northmead for a Zambian studying abroad
from the Bank of Zambia.
He
outlined several other
transactions conducted for clients who were abroad
through Meer Care and Desai.
A2 explained in relation to the ZSIS that he knew the
Director General, Mr. Xavier Chungu as his junior at Saint
Clements Secondary School in Mansa, Luapula Province
and met him later in his new capacity as Director General.
He said that he began to seriously interact with Mr.

J210

Chungu early in 1995 in connection with then collapsing
Meridian Bank which he had been asked by The Bank of
Zambia to help resuscitate. He stated that Mr. Chungu
informed him after the formation of the AFSL that the ZSIS
needed the company to provide a financial service. He
introduced the accused to Senior Officers in the service
such as Mr. J.K. Lungu, Mr. Yotham Zulu (DW3) and a Mr.
Mandona whom the AFSL would expect to interact with as
the relationship between the two entities grew. The
accused stated that he in turn introduced Mr. Xavier
Chungu to A3 who was the next most senior officer in the
AFSL after him. The three other ZSIS Officials were also
introduced to A3. Business started between the two
organizations most of which was handled by A3.

In connection with transactions involving funds to or from
foreign sources A2 advised. Mr. Chungu to route them
through Meer Care and Desai who were already facilitating
similar transactions. He said that for the ZSIS business he
dealt with Mr. Chungu in their official capacities, the one
as Chief Executive Officer of the AFSL and the other as
Director General, ZSIS.

J211

He recalled that Mr. Chungu met with Mr. Meer in 1996.
He clarified that the business relationship with Meer Care
and Desai was developed for the benefit of all clients.

A2 recalled the acquisition of Avalon Motors Limited
renamed Motor City Limited for the ZSIS. He testified that
the funds for the purchase of the enterprise came from the
Zamtrop Account and because they were foreign based,
they were routed through Meer Care and Desai. That is
when he knew about the Zamtrop account. He instructed
Meer Care and Desai to send the money to Zambia (AFSL)
for the intended investment.

In relation to the memo of 7th May 1998 produced by the
prosecution through PW30, A2 confirmed that A3 wrote to
him to request the payment by Meer Care and Desai of the
sum of US$242,484 for various clients’ services.

A2 stated that he never enquired where their clients got
money from and that banks and financial institutions did
not normally ask their clients the source of their funds
unless a crime was suspected.

J212

Another transaction A2 talked about was the acquisition of
a shareholding in Zamdaell Limited by the ZSIS through
the AFSL. The Accused person stated that Mr. Xavier
Chungu instructed him to acquire the interest in the
Company which had land in the Kanakantapa area for the
ZSIS. He stated that according to the printout from the
Companies Registry the Company was established on 11th
December 1991 while he was still working from Meridien
and was based in New York. This was also way before the
AFSL was established.

According to the printout the shareholding structure is
that Zamdaell International owns 99, 999 shares while the
AFSL has one share. A2 explained that prior to the
acquisition of the interest, Zamdaell Limited was wholly
owned by an offshore entity called Zamdaell International
which was being managed by a Mr. Murray Dewar (on
behalf of a Mr. Dale). He said that after the acquisition,
the AFSL was allocated one share because Mr. Chungu
had requested that the AFSL hold the ZSIS interest on
their behalf and that A2 and A3 be appointed as the
directors on behalf of the ZSIS.

J213

A2 stated that Mr. Chungu told him (original evidence) that
the ZSIS put up and maintains companies with
shareholders and directors who could not be connected in
a scrutiny of the operations of the organization and that
the operations of the ZSIS could only be disclosed on a
need to know basis. One such company was Assurance
Properties Limited through which the ZSIS acquired a
property in Kalundu. A3 testified that using Zamdaell, the
ZSIS acquired various properties such as the block of flats
along Roan Road in Kabulonga, Lusaka. The funds for
these transactions were provided by Mr. Xavier Chungu
from offshore sources through another London based firm
of Lawyers Messrs Cave Malik and Company. The AFSL
subsequently managed the properties and accounted to
Mr. Xavier Chungu on behalf of the ZSIS.

A2 testified that the AFSL also acquired property along
Sable road also in Kabulonga for the ZSIS but under an
entity called Hearnville Limited as instructed by Mr. Xavier
Chungu. The AFSL also managed this property. Other
properties which the accused said the AFSL acquired
under Zamdaell were the plot along Leopards Hill Road
paid for through Meer Care and Desai, stands numbered

J214

575 and 3218 Siavonga, and a Land Rover motor vehicle
which Mr. Chungu gave to a Mr. Kalumba who was doing
some work for the ZSIS in Mozambique.

A2 pointed out several payments made to Mr. Kalumba
which are acknowledged on the Zamin dollar and Kwacha
statements of account.

He said also that AFSL acquired other properties not under
Zamdaell such as the Chita Road property in Kabulonga,
and the property in Lilayi. A2 stated that the two
properties were acquired through his and A3’s company
called Lusaka Trust Corporate Services Limited because
Mr. Chungu did not want them to be under Zamdaell. He
stated that as far as he was aware the property was still
under the control and management of the ZSIS.

A2 pointed out payments related to these properties from
the Zamin dollar and kwacha statements. He said that he
did not derive any personal benefit from these
transactions. He said also that Mr. Xavier Chungu
provided the funds required for LTCS to purchase the
properties.

J215

A2 stated that the Zamin statement shows that the
amount received from the ZSIS in the Zamin Dollar
Account was US$4,529,469 while the amount he was
accused of stealing was less than US$500,000. He said
that the total amount received in the Zamin Kwacha
account was K9,853,742,500 against which K10,418,977,
121 was debited.

The accused also explained his company’s role in the
acquisition of a facility of the ZSIS known as the
Mulungushi Service Club and showed the Court various
payments recorded in the Zamin Kwacha account.

The witness recounted other payments of a non property
nature made by the AFSL on behalf of the ZSIS which
provided the funds. These are recorded in the Zamin
Dollar and Kwacha statements and were spent on air travel
and procurement of tractors. He said that the tractor
transactions became the subject of a theft case involving
Mr. Xavier Chungu, the former Secretary to the Treasury,
Professor Benjamin Mweene and the former Permanent
Secretary in the Ministry of Finance, Mrs. Stella Chibanda.

J216

A3 stated that the case was “dismissed” and the accused
acquitted.

A2 stated that the AFSL also paid on behalf of the ZSIS for
farm properties sold by the ZNCB and the purchase of the
ZSIS equity in DGH Poly Products Limited. There are
varied other payments which A2 stated were made by the
AFSL on behalf of the ZSIS recorded on the Zamin
statement. He stated that although he was the Chief
Executive Officer of the Company he did not personally
participate in many of these transactions and that other
officers of the Company notably A3 and Mr. Sebastian
Mathew the General Manager, Mr. Don Maila, Head of
Consultancy and Mr. Enock Mwale (PW10) handled the
transactions in the ordinary course of the company’s
business arising from the proper instructions of the client.
He said that the Zamin statements cover the period 1998
to 2002 because that is the period officers investigating the
matter from the Task Force on corruption requested
officers of the AFSL to account for. He said that as such
transactions that occurred before that period are not
covered.

J217

A2 stated that there were regular reconciliations for the
ZSIS in terms of the funds that came to Zambia and those
that were disbursed from Meer Care and Desai. He said
the AFSL made some money from the transactions handled
and the investments managed for the ZSIS.

A2 stated further that he used to receive complaints from
his members of staff including A3 arising from the
problematic handling of Mr. Xavier Chungu who seemed
overly obsessed with the Security of the ZSIS transactions
with AFSL. He said that Mr. Chungu visited the AFSL
offices often to reconcile the transactions.

A2 led the Court to view several of the properties
mentioned which the AFSL allegedly acquired for the ZSIS
on the instructions of Mr. Chungu.

A2 stated that in dealing with Mr. Xavier Chungu he
believed that the latter would not ask him to do anything
illegal and that as part of the AFSL he assisted Mr.
Chungu in issues he believed to be of national benefit.

J218

A2 stated that he was arrested on 30th June 2002 upon his
return from abroad. Because of this he relinquished his
position as Chief Executive officer at the AFSL.

The accused gave an account of the events that
surrounded his arrest and highlighted the speech made by
then President Levy Mwanawasa to Parliament regarding
the involvement of the AFSL in the “matrix of plunder” and
the seizure of the company and the Access Leasing Limited
by the Bank of Zambia that followed. He also talked about
the inspection conducted by PW6 and his team and
compared the report with another report arising from
previous inspection of the AFSL by the Bank of Zambia.
Since I have excluded that part of PW6’s testimony which
covers the report it seems to me unnecessary to review
A2’s evidence in that connection.

In relation to the US$50,000 charged in counts four (and
one), A2 stated that a full reconciliation of the US$242,484
from Meer Care and Desai was done at AFSL which shows
how the money, part of which is the sum of US$50,000,
was applied. A2 stated that he did not know that the
funds he said were remitted by Mr. Xavier Chungu through

J219

Meer Care and Desai were from the Zamtrop account. He
also did not know and was not able to tell whether the
funds were from the Ministry of Finance remittances to the
Zamtrop Account or from private sources. All he knew as
in all case was that they (AFSL) were carrying out ZSIS
instructions.

In relation to the sum of US$125, 000 charged in counts
five (and two), A2 stated that all that his company was
doing was to effect the instructions of a client to purchase
property. He said that he was not privy to the
arrangement (if any) between A1 and PW13 and PW14.

A2 expressed a similar position in relation to the sum of
US$148,000 (or US$148,030, if we include the bank
charges) charged in counts six and two.

On the sums of K25 million and K43 million charged in
counts ten and eleven, A2 denied that the monies were
derived in the manner demonstrated by PW31. He stated
that A3 maintained personal accounts within the AFSC
where he made personal savings such as the A.C Chungu
salary account and A.C Chungu Zam Access Notes

J220

Account. He stated to the effect that the K25 million share
capital account showing that amount reflects A3’s 5%
shareholding which was paid for from the latter’s personal
savings in AFSL. A2 stated that in the same way A3
acquired his equity participation in Pukupan.

A2 stated that the memo from Mr. Rozan in which it was
suggested that a fictitious loan account be created to be
written of over a period of three to four years for the benefit
of A3’s acquisition of shares in AFSL was not related to the
K25 million and was taken out of context in view of the
other issues discussed in it. Besides this he said that the
ledgers (pertaining to A3) were internal within the AFSL
(amounting to a mere declaration of intention) and that the
only money that moved out was the K43 million paid to
Pukupan from the bank account of AFSL. Explaining the
entries in the Zamin/AFSL client account A2 pointed out
that there were client funds in the account which were
paid out. He said that the credit entry of the amount of
K25 million in the AC share capital account showed the
recovery of those monies from the AFSL client account
which extinguished the debit.

J221

In relation to the US$205,000 charged in count 10, A2
stated that the four accounts shown in PW31’s tracing
work viz LTCS, Mambilima House, Leyland Daf and
Computer Project had no bearing (which I took to mean
was not related) to the actual payments made on behalf of
the ZSIS out of the US$205, 000. Earlier the witness had
stated that how the AFSL used the funds in its account
from whatever source was an internal matter as long as
they were able to account to the client for his investments.

With regard to the part of the US$205,000 allocated to the
Leyland account and PW11’s testimony denying that his
company had an account with the AFSL, A2 explained that
the Leyland account was so named after failed attempts by
the AFSL on behalf of the ZSIS to acquire property which
PW11 agreed that they were selling. He said that the
transactions recorded in the account did not mean the
AFSL had any dealings with Leyland of value. He stated
that no part of the US$205, 000 was paid to him or to A3
and the money is all accounted for according to the Zamin
Dollar statement.

J222

All in all, A3 denied stealing any of the monies alleged in
the counts with which he stands charged in counts four,
five, six, ten, eleven and twelve.

A2 was cross examined. He replied that he was a fellow of
the ACCA and a qualified accountant. He stated that the
transactions conducted on behalf of the AFSL clients
through the foreign based Lawyers, Meer Care and Desai
were monitored and reconciled monthly from books of
account maintained by the lawyers, Meer Care and Desai.
He said that there was no need to maintain mirror
accounts at AFSL.

He replied that Harptree was a ZSIS account set up by
Meer Care and Desai. He stated that the AFSL kept
records of receipts and expenditure of the funds from Meer
Care and Desai. He said that the AFSL was within their
rights to keep money at Meer Care and Desai (an offshore
investment) and not to reflect it in the records at home. He
denied that this last situation amounted to money
laundering. He said that the AFSL kept the money at the
AFSL as investment managers.

J223

A2 denied owing Zamdaell but that he and A3 were only
directors. He expected officers of the ZSIS to account for
the ownership of the entity to the Auditor General or other
relevant authority.

He said that he was not privy to the internal arrangement
at the ZSIS and the procedures involved when handing
over (office).

He said that the AFSL client Account was one through
which A3 and other employees mobilized funds for the
company either from themselves or third parties. He said
that A3’s shares were funded from this account before its
name was changed to Zamin sundry Debtors account.

He said in relation to Mr. Rozan’s memo that the term
“fictitious account” was used to mean that an account
would be opened for the equity (shares) transaction that
would later be funded by the AFSL.

He elaborated in a rather convoluted manner what became
of the funds allocated to the four accounts from the
US$205,000. He stated that the US$80,000 in the Leyland

J224

account found its way through his wife’s account (Ireen
Kabwe) on account of her share of an intended dividend
declaration. He said that the money was moved out when
the RAMCOZ account (RAZ) “needed to be restored.” He
explained that the AFSL had earned money from the
RAMCOZ consultancy which was used by the ZSIS. Thus
when the US$205, 000 arrived, part of it had to be reallocated to pay back what had been used.

On the US$75,000 in the Mambilima House account, he
said that the AFSL had obtained a Loan in the region of
US$250,000 from PW12’s Epakor to renovate Mambilima
House but when it was availed, part of it was used to meet
ZSIS transactions.
The
component of US$75000 was
accordingly recovered as payment towards the loan when
the US$205,000 came to the AFSL and the Epakor account
was paid. I recall of course the denial by PW12 who said
that he was not aware of the allocation.

On the US$30, 000 allocated to LTCS, the accused said
that the money was spent on repairs to Office of the
President houses and that the journal vouchers should

J225

show this although they were not found at the AFSL when
he went to look for them.

In relation to the attempted acquisition of Ndola Lime A2
stated that among those who expressed a beneficial
interest were himself, the AFSL and Mr. Xavier Chungu on
behalf of the ZSIS. Another person involved was Mr.
Robert Standaert to whom a block of flats in Belgium
owned under Harptree, a purported ZSIS investment were
sold. He said that the money realized was held in an
escrow account on behalf of the ZSIS in Belgium. He said
that the purchase of the flats by Mr. Standaert and his
participation in the Ndola Lime bid was a mere
coincidence. A2 denied that there was any arrangement
between him and Mr. Xavier Chungu to buy into Ndola
Lime.

On the Kabulonga and Roma properties, A2 said that
“they” were asked to transfer ownership to “other parties”
and was not aware of the reasons why these transactions
were taking place. He said that the ZSIS provided the
funds to acquire the properties.

J226

He could not say whether he ever sold his Mkushi Farm to
Mr. Chungu although he admitted to having received some
payments on it from the ZSIS funds remitted through Meer
Care and Desai. He also admitted that Mr. Chungu at one
point kept his animals at the farm. He conceded to selling
a house to Mr. Chungu in 1995 or 1996.

He reiterated that the owners of the properties that he led
the Court to view were the ZSIS although some of them
like the Lilayi property were registered under LTCS Limited
owned by him and A3.

He denied running a conglomerate. He said that assets
were bought with funds provided by the ZSIS. He said that
no fees were charged against the ZSIS. The benefit came
through cash flow support, profits on dollar trading and
fees from property management.

He stated that he used to pay for his children’s school fees
from his own funds held by Meer Care and Desai. He
denied helping himself to any Government money.

J227

He said the AFSL bought some residential properties in
Ndola for the ZSIS. He denied that they were bought for
A1. The funds came through Meer Care and Desai. The
Properties were bought in the name of Anusia properties
which he and Mr. Ketson Kandafula (PW22) owned on
behalf of the ZSIS. He denied that he and Mr. Chungu
stole Government money through the various transactions.

A2 was re – examined. He replied that mirror accounts do
not apply to non bank financial institutions. He said that
the transactions performed for the ZSIS by the AFSL were
fully accounted for to the ZSIS. He responded that
minimal records of communications with the ZSIS were
recorded because of the nature of the latter’s operations.

He repeated his denial that the transactions were evidence
of money laundering. He stated that records evidencing
the trail of the money were kept normally and nothing was
hidden. He expected the ZSIS as a major organization of
Government to have documented its side of the
transactions properly.

J228

A2 repeated also that the ZSIS, Meer Care and Desai and
AFSL transactions were done officially. He said that the
responsibility to inform PW19, the successor Director
General, of the level of the ZSIS operations and its
involvement with the AFSL lay with Mr. Chungu and other
knowledgeable members of the ZSIS. He did, however,
inform PW19 of his organization’s indebtedness to the
AFSL and the desire to continue the relationship cultivated
during Mr. Chungu’s tenure. He said that the purchase of
the Kalundu property through Assurance Properties
Limited confirms that the ZSIS used private individuals
and entities for some of its investments.

On the sums of K25 million and K43 million in counts ten
and eleven A2 repeated that A3 did not get Government
money to pay for his shares. He maintained that the
US$200,000 was fully accounted for. On the Ndola Lime
transaction he stated that had it succeeded the ZSIS and
other interested parties would have acquired shares in the
special purpose company which was to be created to
operate it.

J229

He reiterated that the funds paid for his children’s school
fees belonged to him.

He concluded by stating that he could not have stolen
money without the client (ZSIS) missing the funds.

A3 gave evidence as DW2. The accused outlined his
educational and working background as an auditor and
accountant. He explained that he met A2 while working
for Meridien leasing although he had known about him
when he also worked for the Chibote Group of Companies
before he was transferred to Meridien Leasing. He later
joined A2 at the AFSL in October 1995.

The accused stated that initially he discussed with A2 the
possibility of establishing a financial institution at the
latter’s behest. He stated that when the ASFL and Access
Leasing were established he was employed as General
Manager for Access Leasing Limited while a colleague of
his, Mr. Roger Sombe became General Manager at AFSL.
A2 was Executive Chairman of both AFSL and Access
Leasing Limited. He stated that he enjoyed a professional
relationship with A2 who assisted him in his career

J230

development. After one year he became Executive Director
of both AFSL and Access Leasing Limited. He said that
Accused 2 was responsible for policy matters while he
handled the day to day running of the companies.

He was surprised that he was jointly charged with A1
whom he never met whilst at the AFSL except for an
opportunity once in 1999 or 2000 when he attended a
discussion with officials from financial institutions over the
depreciating kwacha at State House. He said that he only
began to interact with A1 when these proceedings started.

A3 stated also that he was not related to Mr. Xavier
Chungu despite sharing similar sur names and that he
only came to know him when he started working at the
AFSL/Access Leasing Limited and A2 introduced them. He
stated that Mr. Chungu introduced his “operatives” to him
who included Mr. J.K. Lungu, Mr. Yothamu Zulu, Mr.
Mandona, Mr. Mwanambale and Yoram. He stated that
he dealt with these people in transactions that the AFSL
did for the ZSIS. He said that he had been advised that he
would be dealing with those officials from time to time and
that the need for confidentiality was emphasized. He said

J231

that he in turn introduced members of AFSL staff to the
ZSIS officers. He said that Mr. Sebastian Mathew was his
number two as General Manager at AFSL. He said also
that there was PW10, the Finance Manager at the time. He
said that the interaction between the officers from ZSIS
and the AFSL staff depended on the level of security.

A3 stated that his experience with the ZSIS transactions
was that it was the most difficulty client. They demanded
more information than they themselves provided and some
of their demands became unbearable on the company’s
cash flows. He stated that, to his knowledge, all the staff
that they dealt with from the ZSIS were alive apart from
Mr. J.K Lungu who had passed on. He was surprised that
the prosecution called none of them and only brought
PW19 the incumbent Director General and who was junior
to several of the staff that he dealt with at the time.

The accused recounted the events prior to his arrest and
how he was visited by the lead prosecutor, Mr. Nchito who
requested for information about A1’s relationship with the
AFSL. He stated that, thereafter, the AFSL premises were
raided by officers from the Task Force on Corruption who

J232

conducted sustained searches in the offices and carted
away documents. He said also that the officers also went
to his home and presented him with a restriction notice
containing properties he was thought to own.

A3 stated that he sought the intervention of Senior
Personnel at the Task Force on Corruption who explained
what was required. He stated that he was unable to
provide he documents required relating to transactions
with the ZSIS because all had been taken to the Task
Force offices. He said that upon his request, the lead
prosecutor assisted in securing the return of the
documents but a lot of them had gone missing.

A3 stated that they (AFSL) put together the information
requested including the Zamin statements. He stated that
the name Zamin was coined to protect the confidentiality of
the client.

He said that amongst the documents taken by the raiding
officers from the Task Force on Corruption and which were
not produced were Ledgers showing the audit trail of his
own money which he put in AFSL to pay for the shares.

J233

He said that other documents were Sundry Creditors and
sundry Debtors Ledgers which show the history of the K70,
371, 333.22 and his personal account under Aaron
Chungu which shows other funds including his Salary
going into the account. He said, however, that he had
brought some receipts which he produced and which he
claimed demonstrated that he put into the AFSL funds of
his own. He said that he was not aware of the memo to
create a fictitious account to allocate him shares from Mr.
Rozan to A2 until April 2003 when he received the
impugned Bank of Zambia inspection report.

As stated that his shares were issued in May 1997 and his
share capital account was debited.

In relation to the sum of US$205, 000 in count ten A3
stated that it was fully accounted for (in the manner of its
allocation). He said, however, that it was difficulty to show
how it was accounted for.

He denied stealing the US$50, 000 and US$125, 000
charged in counts four and five as well as the US$148, 000
in count six. In relation to counts four and five in

J234

particular, A3 stated that PW14 asked him to pursue the
property. Mr. Chungu told him to go ahead and that he
was going to provide the funds. He also said that Mr.
Chungu told him to register the property (Roma) in the
name of Zamdaell. He proceeded to conclude the sale and
a total of US$175, 000 was paid for the property. He said
that he kept the keys to the house until Mr. Chungu
collected them from him. Later PW14 brought him an
assignment for the transfer of the Roma property from
Zamdaell to himself (PW14). He consulted Mr. Chungu
who told him to execute it. He stated that later PW14
collected it from him. That was the last time he ever dealt
with the house.

He stated that the US$175,000 was never in his
possession at anytime for this transaction. In relation to
count six A3 stated that Mr. Chungu informed him that
PW13 would be visiting him. When PW13 came he asked
him to look for a house for him and that Mr. Chungu
would provide further details. He said that he found the
house which PW13 liked after seeing it. On the
instructions of Mr. Chungu, he proceeded with the
purchase transactions. He said that Mr. Chungu told him

J235

to register the (Kabulonga) property under Zamdaell. He
stated that after some time Mr. Chungu collected the keys
for the house from him. Later still PW13 requested him to
execute an assignment transferring the property from
Zamdaell to Mums Delicatessen. The arrangements were
made between Mr. Chungu and PW13. That was the last
time he ever dealt with that property. The US$148,000
never came into his possession.

A3 was cross – examined. He replied that the Zamin
statement was a reconciliation of the funds that came into
the AFSL and payments were made out on account of the
ZSIS. He said that the source of the transactions in the
Zamin account were the Ledgers. The Zamin statement
did mot show the other amounts held for the ZSIS, for
example, under Zamdaell Limited or Lusaka Trust and
Corporate Services Limited.

A3 repeated that he never dealt with A1 and he did not
know who had taken A1’s clothes to the AFSL.

He replied that in relation to the US$205,000 he dealt with
Mr. Chungu. He insisted, however, that the K25, million

J236

and K43 million came from his own funds. He said that he
produced his receipts to show the extent to which he put
money in AFSL and to demonstrate that he had the
capacity to pay for the shares. He stated that the K70,
371, 333.22 was his money which he put in AFSL. He said
that he paid the money through the receipts and his
salary. He could not, however state which of the payments
went towards his shares. He conceded to several receipts
that clearly had nothing to do with investing in the AFSL
or paying for his shares.

A3 stated that US$30,000 was allocated to Lusaka Trust
and Corporate Services Limited to take care of payments
for the ZSIS. He thought that the Lilayi property was paid
for from the LTCS funds. He said that he and A2 owned
LTCS on behalf of the ZSIS but that there was no trust
deed denoting the interest of the ZSIS.

A3 testified that the US$75,000 to Mambilima House was a
reimbursement of payments earlier made on behalf of the
ZSIS from funds loaned from Epakor.

J237

On the US$80 000 in the Leyland account it was A3’s
evidence that the AFSL spent theUS$80, 000 on behalf of
the ZSIS.

He denied stealing any part of the US$205,000 and that
the client, ZSIS was there to speak for itself. That
concluded A3’s testimony.

A1 as is known gave an unsworn statement whose effect
has been the subject of several comments already. He
gave his occupation as former Republican President (of
Zambia). He recounted how the Movement for Multi Party
Democracy (MMD) took over government and how before
this, the party raised enough money for their campaign
from private sources. He stated that because of the risk of
losing the election by the party being sponsored, the
sponsors remained anonymous to protect them. He stated
that the sponsors usually dealt directly with the leader of
the party and if his party won they benefitted by their
businesses. He stated that this quid pro quo was
universal. He stated that because of the politics of the day
he enjoyed a lot of goodwill.

J238

A1 stated that as a result of this goodwill, he was able to
purchase a building formally known as the Black Velvet at
US$ 1 million which came from friends and well wishers.
He stated that similarly he was able to raise funds through
appeals even to the African Union for funds with which he
started his personal project which he termed “national”
because of its intended purpose. This is the FTJ Institute
for Democracy and Industrial Relations. The sources of
the funds could not be audited, so the Director General of
the ZSIS, Mr. Xavier Chungu suggested that to guard
against contributions from unscrupulous people the funds
be routed through the intelligence Account (Zamtrop)
whether it was on account of his personal or party
activities. This would enable the screening of the money
and to promote accountability and transparency. He
accepted the advice.

A1 stated that the Intelligence Account was managed and
administered by the Director General and they agreed that
A1 would be giving instructions on the disposition of the
money. He stated that he was not worried with the
arrangement because he was aware that the account had
existed for almost 21 years before his tenure as president

J239

and was used in the Liberation Wars effort in Southern
Africa. He said that to avoid subjecting the intelligence
Account to scrutiny the United National Independence
Party (UNIP) Government promulgated the charter of 1970
(otherwise called the 1970 Finance Charter) to separate the
Intelligence Account from traditional Ministerial or
Government accounts which are audited (in terms of the
Public Audit Act, Chapter 378 of the Laws of Zambia).

A1 stated that the Finance Charter which he saw when he
was President only permitted the Auditor General in
person to have access to Intelligence Accounts. The
Intelligence Account was able to receive money from well
wishers and pass it on to the liberation movements
without being thwarted by inimical parties. He stated that
thus the Intelligence Account allows in private money
which Government uses for many activities including those
that may be considered illegal. The Intelligence account,
according to A1, is not regulated by the law as if does other
government accounts. He said though, that he only
became aware of the name Zamtrop in 2001 or 2002.

J240

A1 talked about how he supported Late President
Mwanawasa to succeed him and how money from private
sources and through the intelligence account assisted the
process. The accused expressed disappointment that a
person he had supported was the initiator of these
proceedings.

A1 enumerated the monies that his predecessor accused
him of having stolen. He pointed out that he has not been
charged with the theft of any of those monies. He said that
parliament rushed to strip him of his immunity and
resolved that he be prosecuted for offences committed in
his personal capacity. As far as he is concerned he has
been charged for offences allegedly committed in his official
capacity as president of the Republic of Zambia.

He said that the Task Force on Corruption was formed to
probe him and those that worked in his administration.

In relation to counts one, two and three A1 denied that he
had any dealings with the AFSL. He said he only came to
know A3 when he was jointly charged with him. As for A2
he knew him through Mr. Xavier Chungu who introduced

J241

him as a friend to the service. (ZSIS). He does not know
the law firm Meer Care and Desai or anyone working there.
He admitted knowing both PW13 and PW14 whom he said
worked as Ministers in his administration.

A1 stated that he retained their services in the presidential
Election Petition. As for their remuneration he said the
understanding was that he would pay them in due course.
He denied that there was an agreement between him and
the ZSIS to pay the remuneration using government funds.

In relation to counts seven eight and nine A1 explained
that his children went to school in England in 1994. He
said that from his many travels he earned enough
allowances to enable him maintain his children at school.
He stated that he used to give the money to the ZNCB
(Lusaka) to transmit abroad. How they did it he did not
know. He said that if he was in London in person he
would give the children cash. When he had no money his
friends would assist. His friends would send money to the
ZNCB London branch.

J242

A1 explained further that he has now come to know how
the ZNCB London branch was treating the money from the
explanations attributed to Mrs. Beauty Kaluba and Mrs.
Jean Elaine Bennet. He said that their statements to the
Task Force on Corruption were read by PW31 when they
were put to him during cross-examination to the effect that
private money did come into the account.

A1 pointed out that to his knowledge the Zamtrop Account
has been reconciled several times, first by Price Water
House and Coopers on the instructions of Government in
2002 and 2003, then by the Bank of Zambia also in 2002
and 2003 and finally by Grant Thornton in 2006 and 2007.
He stated that all these audits confirmed Mrs. Kaluba’s
and Mrs. Bennet’s conclusions that there were funds that
came into the Zamtrop account to the tune of between
US$8.5 million and US$9 million. He pointed out that
PW31 conceded that there were such private money
coming into the Zamtrop Account.

He denied taking any of the monies alleged in counts one,
two and three claiming that there were private monies in

J243

the Zamtrop Account. He said that he was not aware of
the details of how these monies were moved.

He stated that Mr. Xavier Chungu had assured him that he
would pay the lawyers from his private money in the
Zamtrop Account. He said that he had contributions at
the time of the payments in excess of US$1 million towards
his FTJ Institute project. He also pointed out payments
into the Zamtrop Account since 1997 which he claimed
were meant for him which appear in the Zamtrop
statement as follows. US$55, 578 on 2nd June 1997,
US$40, 000 on 9th July 1997, US$ 651.89 on the 22nd
December 1997, US$42, 770 on 30th December 1997
US$250, 000 on 18th February 1998, US$552, 486.19 on
15th April 1998 all totaling over US$1 million which came
in before the payments to his children. He said that some
of these monies came from his “Brothers” within the region
whose names he could not disclose.

A1 pointed out other payments into the Zamtrop Account
from 17th June 1998 of US$50,000, 28th July 1998 of
US$299,985, on 16th September 1998 of US$329,973.20,
on 17th September 1998 of US$169,963.50, on 14th

J244

December 1998 of US$199,962.57, on 24th December 1998
of US$230,547.30, on 30th July 1999 of US$1,000,000, on
2nd August 1999 of US$78,500 and on 26th November 1999
of US$35,486. He noted the US$1,000,000 of 30th July
1999 that this was a donation for the purchase of the party
headquarters while the US$35,456 paid into the Zamtrop
Account was a refund from David Game college in respect
of one of his children.

A1 stated that he was not aware that the money paid on
his behalf came from the funds that were remitted to the
Zamtrop Account from the Ministry of Finance. He
claimed that there is his money still in the Zamtrop
Account.

At the close of A1’s statement the learned Public
Prosecutor requested that I confirm that it would receive
the same treatment accorded to all unsworn statements. I
duly confirmed this. However, for the sake of clarity, I will
repeat my earlier observation that such a statement is not
dismissed out of hand or the issues in it ignored just
because the statement is not given on oath. There must be
evidence to entitle me to dismiss the statement or any

J245

issues raised in the statement. Otherwise all that is said is
taken into account and maybe believed if there is nothing
to rebut it.

The next witness for the defence was DW4, Miss Doris
Nambela who gave her occupation as Master of the
Supreme Court.

The witness was called to produce the verbation report of
the record of proceedings in the Presidential Election
Petition number SCZ/EP/01/02/03/2002 between
Anderson Kambela Mazoka, Leutenant General
Christon Sifapi Tembo, General Godfrey Miyanda and
Levy Patrick Mwanawasa and Electoral Commission of
Zambia and Attorney General. The record which was
admitted into evidence without objection contains the
testimony of Mr. Xavier Franklin Chungu who was PW45
in that case. Together with the record a copy of the
Attorney General’s submissions was availed to the effect
that A1 in this case had more than one source of funds, a
matter which the Supreme Court appear to have upheld in
its judgment. She noted, however, an observation made by
the Court that A1 should have been called as a witness to

J246

state where he got the funds from which he (allegedly)
mobilized for the party (MMD).

The witness was led through portions of Mr. Chungu’s
testimony, the submissions of the Attorney General and
the Judgment regarding the funds that were put in the
Zamtrop Account.

In cross examination DW4 stated that Mr. Chungu was
facing charges at the time he was testifying in the election
petition.

DW4 was not re examined.

I will immediately comment that I do not see what value
the defence wished to derive from the materials tendered.
Very clearly whatever was said in the election petition was
within the context of that matter. In fact I was not directed
to any findings of fact on the issues to which I was led. If
the intention was to put the testimony of Mr. Chungu in
that matter on this record, then I do not think the action
was proper because as I have said already the evidence at
the time was given within the context of the petition and I

J247

do not think that it can be relied upon in this Court to
support any finding of fact.

DW5 was Mr. Isaac Chilanga who stated that he was the
Chief Investigations Officer at the Anti Corruption
Commission. He stated that he was attached to the Task
Force on Corruption from 2002 to August 2004 and that
he participated in the investigations pertaining to the
present charges.

He recalled interviewing among other witnesses Mrs.
Beauty Kaluba and Mrs. Elaine Jean Bennet in London, in
the United Kingdom. He stated that he recorded
statements from the two witnesses which he signed. He
identified the two statements and tendered them as part of
his evidence. They were admitted without objection.

In cross – examination DW5 stated that the monies for A1
were received between December 2000 and 2001. He said
that according to the statement by Mrs. Bennet the monies
in the picture account started coming in January 2001 to
the Zamtrop Account.

J248

In re – examination DW5 stated that according to the
statement of Mrs. Bennet, money for Accused 1 used to
come in cash and was kept as such before it was decided
that it be put in a suspense account. From January 2001
money began to be kept in the Zamtrop Account under
what was called “picture” account. The recipients of the
money held under picture were mostly A1’s children. DW5
conceded that monies had been coming even before 2001
which were used to pay for A1’s and the former Chief
Justice’s children.

I have had the benefit of reading the two statements.
Firstly, I notice that pages 2, 4 and 5 are missing from
Mrs. Kaluba’s statement. Secondly Mrs. Bennet’s
statement which appears to be more elaborate of the two
makes no comment on the funds that did not seem to
originate from the Ministry of Finance before 2001 or even
2000. I shall return to this issue later.

DW6 was Mr. Wilson Yotam Zulu who gave his occupation
as an unemployed retired Civil Servant. He said, however,
that he used to be an Executive Director in charge of
administration in the ZSIS before his retirement in

J249

February 2003. He said that in that position he used to
report to the Director General who in turn reported to the
President. He said that there were several other
directorates but that the operations of one directorate was
not fully known to the other to avoid compromising their
work. He said that the Director General could assign work
to any employee in the service without the knowledge of
the immediate supervising officer.

He said that throughout his service the modus operandi of
the ZSIS had never changed.

He was introduced to A2 by Mr. Xavier Chungu and A2
later introduced him to A3. He said that as far as he
knew, the ZSIS had a facility at the AFSL whereby they
could borrow money and pay back at the end of the month.
He said that the borrowings were in cash and would be
paid back in cash as well. He would be sent by Mr.
Chungu either to collect money or to deliver money. He
said that the arrangement was between A2 and Mr.
Chungu. He did not know the details of it because the
“need to know” principle applied.

J250

He recalled the property bought for the AFSL in Kalundu
which was registered in the name of Assurance Properties
Limited in which he and a private person were the
shareholders and directors. He said that he did not know
who the current owners are. He listed several other
properties allegedly bought for the ZSIS through Assurance
Properties in Siavonga and Chirundu.

In cross – examination DW5 replied that his relationship
with A2 and A3 was official and above board. He, however,
acknowledged being given a loan without applying for it by
the AFSL and for which there was no security and which
he had not repaid by the time of his testimony. He stated
that the Finance Directorate fell under him but he had
never seen the Zamin statements.

He knew that the ZSIS was renting property from the AFSL
in Kabulonga and rent was being paid.

He stated that he was familiar with the Financial
Regulations and that the controlling officer could permit an
officer to keep personal money in a Government account.

J251

He said that the Zamtrop Account was not necessarily a
Government account. It was a Service Account and that
once Government money had gone into it. It became
service money. An operation would dictate how to treat
the money. He said that accountability was done in
accordance with the Finance Charter. He did not know if
the AFSL was holding ZSIS funds. If it was, the money
could be traced unless it was disbursed as operations
money in which case records were destroyed every year
except of course, for the records held by a bank. The
Finance Charter distinguished between operation funds
and other funds.

In re – examination he said that there was nothing wrong
in the Director General as controlling officer allowing
someone to keep his personal money in the Government
account. The Auditor General is the only person
authorized to audit operation funds.

DW6 was Mrs. Eness Michael Banda Bobo, the Register of
Patents and Companies. She brought a file from the
companies Registry containing details about Assurance
Properties Limited. The file showed that the company was

J252

incorporated on the 23rd March 1994 and that the
shareholders and directors were Yotam Zulu and Alex
Chilufya. She stated this to be the position at the time she
was testifying.

In cross – examination she stated that the last return was
filed a 15th April 2003.

DW7 was Mrs. Anna Chifungula the Auditor General for
the Republic of Zambia. She said that she succeeded Mr.

F.M Siame. She said that auditing involved the
investigation or scrutiny of public funds to ensure that
they are properly accounted for and utilized for the
intended purpose. In carrying out her audit function she
is entitled to subcontract to private auditors but that this
is not allowed in respect of the security wings and the
ZSIS. She personally audits these with the assistance of a
small team of workers (auditors). She stated that the
operations of the ZSIS are governed by a different financing
system.
She stated that the Finance Charter describes how ZSIS
funds ought to be audited. The procedure for auditing is

J253

the same except that the audit itself is not for public
consumption. She said that she was not at liberty to
disclose what the Finance Charter says and that the
Director General ZSIS was in a better position to do so.

She gave evidence that the controlling officer for the ZSIS
funds was the Director General himself. She said that
there were two types of expenditure voted for the ZSIS,
that is funds for the normal day to day running of the
institution and funds for operations. She stated that in
respect of the funds for the running of the ZSIS her officers
do go in, audit and they issue a report for public
consumption. In respect of funds for operations these are
audited personally by her with two of her directors and the
audit is reported to the President and the Director General.
She said that the foregoing was required under the
Zambian Constitution the (Public) Audit Act and the
Finance Charter.

She said that PW31 was not one of her accounting officers.
She said, however, that the office of Financial Analysis and
forensic Audit appears to have been created within the
Task Force and since the Task Force got funding from

J254

Government it was part of Government. She said in the
same breath that the Zamtrop Account in her
understanding was being used by the ZSIS for their
operations. She said that the audit by the Task Force
should normally have been done by her office and the
office would have to decide what action to take if anything
was found to be amiss. Her role ends with the report to
the President. She said that she had seen a document
where her predecessor had carried out an audit of the
Zamtrop Account.

DW7 was cross – examined and she said that her office
could not complain since it was the owners of the money
(those in charge of the money as I understood her to be
saying) who should take steps to secure it.

She replied that were her office had carried out a forensic
audit and discovered fraud, theft or money laundering, this
is reported to the Anti Corruption Commission (ACC),
Police or the Drug Enforcement Commission (DEC) as the
case may be who may carry out further investigations and
bring the culprits to book.

J255

She said that it was not permissible to put private money
in a Government account and where this is found to have
taken place the money is confiscated and becomes public
funds. In the case of the ZSIS receipts and vouchers (of
these private monies) have to be produced.

She said that the Director General is required to disclose to
her assets which are held privately to avoid losing track of
them. A document of trust must be availed for audit.

In re – examination she stated that she had established
that there were properties held privately on behalf of the
service. Some of these properties were held in the names
of private individuals. She stated that she had not carried
out an audit of the ZSIS transactions during her
predecessor’s tenure. She said that it is the Director
General who must produce the Deed of Trust to establish
the source of funds she said that whenever private funds
were found in a Government account the Ministry of
Finance is informed.

DW8 was Mr. Maxwell Nkole, the Executive Chairman of
the Task Force on Corruption. This witness was required

J256

by the defence to produce several documents listed in the
summons served on him. The witness said that he was
not able to find the documents apart from one, his letter of
appointment to the substantive position. He said that his
mandate was derived from the Executive powers of the
president. He said that there was an instrument creating
the Task Force on Corruption by the president kept by the
Attorney General.

There was no cross – examination.

DW10 was Mrs. Suhasini Melwani, the Managing Director
of Sky Jet Travel. She testified that she joined the
company in 1999 as General Manager and found a
running account relating to air tickets purchased by the
AFSL and some government agencies which included the
ZSIS and Cabinet office. She said that from time to time
the AFSL used to pay for tickets on behalf of the ZSIS
(Office of the President – Special Division) Receipts were
issued to the AFSL but indicating that it was on account of
the ZSIS and account postings would be made to reduce
the liability of the ZSIS.

J257

She produced several receipts, a letter from the United
Bank of Zambia and a
Sky Jet Travel Finance Bank statement. These were
admitted without objection. The documents are self
explanatory.

In cross – examination the witness stated that her
company was owned by Mr. Stanley Tampiyapa until
December 2001 when she and her husband bought it.

She was not re – examined.

DW11 was Mr. Joseph Alexander Jalasi, a lawyer, who
gave his occupation as Acting Special Assistant to the
President. He was called to produce a Report of the
Tribunal Appointed pursuant to Article 58 (3) of the
Republican constitution to enquire into the question of
removing Mr. Mukelebai Mukelebai from the office of
Director of Public Prosecutions.

He was not cross – examined. The Report is quite
voluminous and the defence did nothing to highlight the
areas in the Report which are relevant to these

J258

proceedings. I have myself not been able to make use of
the Report as such. As I said when reviewing the
testimony of DW4, this was a veiled way of trying to admit
the testimony of a witness given in another proceeding and
whose context is obviously quite different from the case at
hand. I will exclude this evidence because quite clearly it
has no evidentiary value at law.

DW12, who was the last witness, was the Attorney General
for the Republic of Zambia, Mr. Mumba Malila. He was
called to produce a document that constituted the Task
Force on Corruption. The Witness stated that there was
no such single document. He said that the entity was an
administrative collection of experts from the Zambia Police
Service, the Drug Enforcement Commission, the Anti
Corruption Commission, the ZSIS, the Bank of Zambia and
the Auditor General’s office under the superintendence of
the Director of Public Prosecutions (D.P.P). These experts
constituted the Task Force on corruption and were
allocated cases to investigate which were both novel and
sophisticated. The prosecution function was equally
assigned to suitably qualified individuals from the private
sector who were appointed by the D.P.P.

J259

He could not recall seeing the instrument that appointed
the lead prosecutor in this case but elaborated that in the
course of this work he sees so many documents.

In cross-examination the witness restated that prosecutors
are appointed by the D.P.P.

He was not re – examined.

The defence closed their case and this concluded the whole
of the evidence in this case. In my review of the evidence.
I endeavoured to bring out the substance of the testimony
but do realise some of it was surplussage. In any event I
am able to and will base my decision on the foregoing. I
should mention here that I had written in excess of 3500
pages during this trial much of it containing the evidence
of the witnesses. I will now make my findings of fact.

THE FACTS OF THE CASE

The foregoing review of the evidence shows that there are
issues that appear common to both the prosecution and

J260

the defence or upon which there is no dispute. I will state
these issues and proceed to find them established as facts.

It is common ground that on 11th July, 2002, then
President Dr. Levy Patrick Mwanawasa addressed
Parliament in a special meeting on the State of the Nation.
In his address the late President among other issues
disclosed that he had discovered and established a prima
facie case of the embezzlement or suspicious payment of
funds from the Zambia Intelligence Service Account
(Zamtrop) at the ZNCB in London. He named some of the
beneficiaries from the account who included A1. The
President expressed the desire that the matter should be
thoroughly investigated to avoid the loss of otherwise good
cases due to lack of adequate preparation. The President
them stated that he had been requested, unfortunately, by
some leaders including some Members of Parliament to lift
the immunity of his predecessor. He said that he had no
such power. He, however, guided the House that that was
their prerogative under Article 43 (3) of the constitution of
Zambia, if they resolved to do so.

J261

It is common cause that the National Assembly
subsequently resolved that Accused 1’s immunity be
removed so that he could be charged with any criminal
offence or be amenable to the jurisdiction of any Court for
offences committed while he held the office of president of
the Republic of Zambia. A1 was subsequently arrested
and charged together with A2 and A3 who were implicated
in the embezzlements or suspicious payments of money
from the Zamtrop Account.

There is no dispute and the evidence has shown that in
relation to the charges in this case the Ministry of Finance
used to remit funds to the Zamtrop Account through the
Bank of Zambia for the purpose of servicing debts allegedly
owed to two American Companies, Wilbain Technologies
Incorporated and Systems Innovations Incorporated in
pursuance of contracts for security installations. I will
point out here that the contracts were not proved in this
Court.

The evidence has however shown and there is no dispute
that the Zamtrop Account was managed by the Director
General of the ZSIS, Mr. Xavier Franklin Chungu, who was

J262

always a signatory to the account. The evidence has also
shown that the signing mandates authorized two
signatories except for the period from August 1996 when
Mr. Chungu removed the authority of the second signatory
Mr. D. Nyangulu and constituted himself as the sole
signatory. There is evidence that a second signatory was
restored in November 1996 upon the introduction of Mr.
Reuben Sakala. It is clear from the evidence that even
after restoring the second signatory, Mr. Chungu could
still sign alone and the bank honoured the transactions.

There is no dispute that Mr. Chungu time and again gave
instructions to the bank through either the General
Manager, Mrs. Kaluba or the Operations Manager Mrs.
Bennet to pay money to among others, A1’s children or for
them in respect of college/university fees or to transfer
money to the Meer Care and Desai account at the National
West Minister Bank (Natwest Bank). It is clear that at
least two times the instructions to pay money to or for A1’s
children were faxed from the AFSL offices.

The evidence has shown that when these payments and
transfers were made the Zamtrop Account had money

J263

received from the Ministry of Finance. At the same time it
is also clear that there were monies received in the
Zamtrop Account from sources other then the Ministry of
Finance which have been referred to as being “private
funds” or “from private sources.”

The defence have alleged and the prosecution have not
denied that the management or handling of the funds in
the Zamtrop Account was determined by the Finance
Charter of 1970 whose existence was confirmed by the
Auditor General and notwithstanding the provisions of the
Finance (Control and Management) Act, cap 347 (in this
case the pre 2004 edition which was repealed by Act No.
15 of 2004) and the Public Audit Act, cap 378 of the laws
of Zambia.

The prosecution has alleged and the defence has not
denied that A1 was responsible for the money paid to or for
his children in counts 7, 8 and 9 from the Zamtrop
Account and of course that Fredrick, Hellen, Hulda and
Hontensia are all A1’s children who were living in England
during the period to which the transactions relate.

J264

It is clear from the evidence that at or about the time funds
were received by Meer Care and Desai from the Zamtrop,
A2 would instruct Meer Care and Desai to remit amounts
similar to or less than received, to the AFSL account at the
United Bank of Zambia apart only from the case in count
10 when more money was remitted by Meer Care and
Desai than the firm received from the Zamtrop Account.

The evidence has shown that A2 and A3 who were share
holders and the directors in the AFSL were also
shareholders and directors in Zamdaell Limited, and
Lusaka Trust and Corporate Service Limited (LTCS) and
that the monies received from Meer Care and Desai were
allocated to the Zamdaell account or Zamin Account at
AFSL.

The evidence has further shown that there was
collaboration between A1 and Mr. Xavier Chungu with
regard atleast to the monies sent to A1’s children a matter
which A1 admitted in his unsworn statement.

It is the evidence of the prosecution and the defence has
not denied that money was disbursed in amounts equal to

J265

or less than those received from Meer Care and Desai at or
about the time of such receipt.

It is on record and has not been denied that A1 had
executed an agreement with PW13 and PW14 to
remunerate them with two houses for having represented
them in the presidential election petition and it is not
denied that PW14 was given or paid the Kabulonga
property bought at US$175,000 and in respect of which
the sums of US$50,000 in counts 1 and 4, and the
US$125,000 in counts two and five were paid to Shonga
Steel Limited. It is also not denied that PW14 was given or
paid the Roma Property bought at US$148, 000
transferred to E. Florence in Scotland.

It has been established that even though the two
properties were registered in the name of Zamdaell Limited
they were intended for PW13 and PW14 as remuneration
for having represented Accused 1 in the Presidential
Election Petition.

It is common cause that several accounts were maintained
at the AFSL. These included the Mambilima House

J266

account, Computer Project Account, Leyland Daf account,
and Lusaka Trust and Corporate Services Limited account.
There is no dispute that a sum of US$236,000 was
received from Meer Care and Desai from which the sum of
US$205,000 was credited to the Zamin Account on the
same day of its receipt. This is the money which was
distributed to the four accounts above in the respective
accounts of US$75,000, US$20,000, US$80,000 and
US$30, 000. It is also settled that in addition to these four
accounts the following other accounts were maintained viz,
Ireen Kabwe account, belonging to A2’s wife, Epakor
Account belonging to PW12 and the RAZ Account
maintained for the RAMCOZ transactions. The defence do
not deny that the US$75,000 ended up in the Epakor
Account to allegedly service a loan of US$250,000 provided
by PW12. They do not also deny that the US$20,000 from
the computer project and the US$80,000 from Leyland all
ended up in the RAZ account to allegedly pay back monies
used on account of the ZSIS. The defence did not refute
PW11’s and PW12’s denials that the respective amounts
were held to the credit of their accounts. Infact PW11
denied that his company, Leyland held any such account
with the AFSL, a matter which A2 and A3 sought to

J267

explain away by starting simply that they named the
account as such following a failed transaction with PW11’s
company.

There is no dispute that A2 had discussed the allocation of
free shares to A3 in the AFSL. It is not denied that shares
worth K25 million were allocated to A3 who claims that he
paid for them although the evidence shows that the money
for the shares came from the Zamin/AFSL client services
account. I am satisfied that the money that paid for
Accused 3’s shares in AFSL was recorded as and did come
from the Zamin/ AFSL client services account which is one
and the same account as I already found.

The foregoing are the issues that are common to both sides
or in respect of which there is no dispute. I find them
established as facts.

Now it is the prosecution’s case that each of the sums of
money in the twelve counts is traceable back to the
Zamtrop account and the remittances from the Ministry of
Finance through the Bank of Zambia.

J268

With respect to the offence in counts 1 and 4, it was
submitted that the US$50, 000 was part of the
US$242,484 GRZ funds remitted to the Zamtrop Account,
routed through Meer and Care and Desai which A2 caused
to be transferred to the AFSL before A3 caused it to be paid
towards the house given to PW14 following A1’s
undertaking to remunerate him by way of a property. The
ownership of Zamdaell Limited by A2 and A3 in which the
property was registered was also pointed out.

For their part, the defence submitted that according to A1
he was unaware of the transaction and that in any case
there were funds for A1 in the Zamtrop account from
private sources which had commingled with the
Government money. I recall also the statement of A1 that
the issue of remuneration was handled by Mr. Xavier
Chungu and he assumed that payment would be made
from his funds held in the Zamtrop Account from private
sources.

With respect to A2 and A3 the defence submitted that the
two accused persons were acting as officers of the AFSL
and that their ownership of Zamdaell Limited in which the

J269

Roma property (and the Kabulonga property) was
registered was on behalf of the ZSIS as instructed by Mr.
Xavier Chungu.

The foregoing submissions and arguments apply equally to
the offences charged in counts 2 and 5, and 3 and 6. I
have applied my mind to the evidence from both sides and
particularly the tracing work of PW31 on which the
prosecution case appears to be anchored. I also recall my
observations when I was reviewing this witness’s evidence.

The prosecution did not and the documents produced in
respect of count one and four do not show any relationship
between the US$466,000 from whence the US$50, 000 and
the US$352, 484 debited to Harptree came from. Iam
accordingly not able to find that the US$50, 000 was part
of the US$466,000 received by Meer Care and Desai from
Harptree. Consequently, this amount cannot be connected
to and I find that it is not connected to the Ministry of
Finance remittances.

Whether I would have found differently if the connection
was established will be clarified by the view that I take of

J270

the amounts in counts 2 and 5, and 3 and 6. I have
noticed and have not ignored the fact that the Zamdaell
ledger did record the receipt and payment of K95, 000,

000. If it was accepted that Zamdaell was a ZSIS
investment then the money expended would have been
Government money. The position of the prosecution in
this case is, however, that Zamdaell was merely a private
conduit through which the three accused persons and Mr.
Xavier Chungu collaborated to steal Government money
and acquired properties. After all it was never handed over
to Mr. Chungu’s successor. The prosecution are permitted
to maintain one position which is that Zamdaell was not a
ZSIS investment. What I have said above applies also to
the Zamin account which has also been described by the
prosecution as a means used by A3 to try and hide the real
intention behind the questioned transactions, which was
to steal. I reiterate that the desired connection was not
made as I have explained above.
The sum of US$125, 000 appears on the evidence to have
come from the Zamtrop account as demonstrated by PW31
and documents produced by PW10 among others and the
amount could only be paid after the Ministry of Finance

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remittances were received. The question, however, in view
of the defence arguments and submission is whether the
US$125, 000 was government money strictly so called or
private money in the sense that there was money from
private sources in the Zamtrop Account.

The prosecution have submitted that all monies put in a
Government account belong to the Government since the
law does not allow private persons putting their money in
such accounts. This was also the testimony of the Auditor
General who testified on behalf of the defence as DW5.
The position it seems is not so straight forward. The
Director General of the ZSIS PW19 conceded that for
operational accounts of the ZSIS, their management is
entirely under the Director General who is the controlling
officer. PW19 also found nothing wrong with putting
private money in the Zamtrop account whether or not it
was for the president since it was the Director General who
decided what went into the account and he was not obliged
to disclose the source of the money or its purpose. More
was said.

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I recall that when I looked at the Zamtrop statement I saw
and highlighted several payments that came into the
account from sources other than the Ministry of Finance. I
did state that their purpose was not stated and there is no
evidence how they were expended. Those amounts came
in way before 2000 when the prosecution allege and are
supported by the statements of Mrs. Kaluba and Mrs.
Bennet that private funds for A1 started to be credited to
the picture account spreadsheet in the Zamtrop account.
Infact as I found and A1 stated, these monies which
included very large receipts, came in as early as 1997.

Now, if one received money into his account on behalf of
others and he spends the money before he passes it on to
those others, is he absolved from paying from his account
from money’s that may become later available?
Logic
dictates that he is not absolved. He is still required to pay
and the owners of the money still entitled to demand
payment of their money.

In the present case A1 has claimed that money meant for
him was received since 1997 in the Zamtrop account on
the advice of the Director General. There is no evidence

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that the monies from the private sources were intended for
any other purpose. I have really exercised my mind on the
issue and I am unable to stop entertaining the possibility
that indeed Accused 1 may have been or was infact
entitled to those monies.

It is clear that the prosecution and PW31 in particular
ignored this possibility. In the circumstances I am not
able to agree with the conclusion of PW31 that the sum of
US$125,000 is traceable to the Ministry of Finance
remittances to Zamtrop.

The foregoing position would have applied to the sum of
US$50,000 charged in counts 1 and 4 had I found that
Zamdaell and Zamin were actually investments of the ZSIS
and , therefore, that the money belonged to Government.

What I have said above applied to the sum of US$148,000
charged in counts 3 and 6 even though it is clear that like
in the case of the other amounts, PW31 did manage to
connect the money to the Zamtrop Account but not to the
Ministry of Finance remittances.

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Similar considerations apply to the direct payments to and
for A1’s children in that contrary to the claims by the
State, PW31 did not demonstrate what became of the
private money so that the real and not notional possibility
remains that A1 was entitled to the money on that account
notwithstanding the low balances in the account when
some of these monies were paid. I accordingly, am unable
to find that there was any intent on the part of A1 or
collusion with Mr. Xavier Chungu to steal Government
money. I must emphasise that the evidence in this case
must be considered within the overall bounds of the case
bearing in mind also that at the time of the transactions,
Mr. Xavier Chungu reported to A1, who was the President
of the country.

Regarding the sum of US$200, 000 from which the K25
million and the K43 million charged in counts eleven and
twelve came, I have taken into account the submissions
by the parties. However, in view of what I said during my
review of PW31’s evidence that amount got exhausted or
was used up and the two amounts cannot be connected to
the US$1,000,000 but to the sum of K607,791,572.59

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whose source is not in my view explained. Surely PW31
and anyone who cared to look must have seen this.

I have noted, however, the manner of keeping the accounts
which frustrates a clear trail of the movement of monies.
The K70,371,333.22 from which A3’s shares were paid
came from the K607,791,572.59. Both A2 and A3 claimed
that A3 had personal funds from his salaries and other
deposits held by the AFSL. A3 produced several receipts
which he initially claimed were evidence of his payments
towards the shares but sustained cross examination
caused him to change course and say that the receipts
were merely to illustrate his capacity to pay.

The evidence has shown that the K70, 371, 333.22 was
once domiciled in the DGH London Deposit account before
being moved to the Zamin/AFSL client services Account.
These two accounts according to the defence were ZSIS
accounts and the money in them was government money.
I deem this to be an admission that notwithstanding the
failure to trace the K25 million and the K43 million paid
for A3’s shares to the US$200,000 which came from the
Zamtrop Account and possibly from the Ministry of

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Finance remittances, the suspicion that A3 was not
entitled to these monies is very real. I shall return to this
issue later.

The last amount dealt with by PW31 was the sum of
US$205,000 charged in count 10. I am satisfied that the
circumstances of the accounts show that it could only have
come from the funds in the Zamtrop Account
notwithstanding that a sum of US$236,000 was remitted
from Meer Care and Desai to AFSL. As it has been
established US$31,000 was allocated to “SYBLIS” which
the prosecution have not taken issue with. The balance of
US$205,000 was allocated to the four accounts as
explained above. Clearly the US$205,000 was government
money and the convoluted explanations by both A2 and A3
why the allocations were made saves only to confirm that
the use to which the money was put had nothing to do
with the Government. On the foregoing, I am satisfied
beyond reasonable doubt.

THE LAW

I had discussed at the beginning of the judgment the
ingredients that the prosecution have to establish in order

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to prove the guilty of each one of the accused persons on
each one of the offences charged.

I had also reserved for discussion after reviewing the
evidence whether the President of the Republic of Zambia
is a public officer. It is clear from the law that he is not.
As already observed the head of the Civil Service is the
Secretary to the Cabinet. The Public Service Commission
which employs and disciplines officers or public servants is
constituted by the president and it is answerable to him.
Further, bearers of the offices of Judge, Attorney General
and Clerk of the National assembly are by law not public
officers. The constitution does not say that the president
is a public officer. He is not answerable to and cannot be
disciplined by the Public Service Commission. His office is
elective.

In the circumstances, I am satisfied that the President of
Zambia is not a public officer and the charges against A1
are incompetent to the extent that they allege that he was
acting as a public officer or servant when he allegedly
committed the offences charged.

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The case of CHANDA V THE PEOPLE (1973) ZR 201,
however, demonstrates that where a person is charged
with the offence of Theft by Public Servant and he is found
not to be a public servant, it is competent to enter a
conviction for the offence of Theft contrary to section 272
of the Penal Code. I accordingly substitute the offence of
Theft by Public Servant contrary to sections 272 and 277
of the Penal code charged in counts 1,2,3,6,7 and 8 with
the offence of theft contrary to section 272 of the Penal
Code.

The question now is whether the ingredients of the offence
of theft have been established with respect to each count.
The substance of the ingredients were already outlined.

With regard to the offence in counts 1 and 4 charging the
theft of US$50, 000, I have found that the money has not
been traced to the Zamtrop account and that even if it
were, there is the possibility of more than one inference
that the money could be attributed not only to the
Government money in the account but also to the private
money that went into the account and whose expenditure

J279

has not bee accounted for. The ingredients of theft have
not been proved.

With respect to the offence in counts 2 and 5, I have found
as a fact that while the sum of US$125,000 was traced
back to the Zamtrop account, the possibility still remains
that it could be attributed not only to the Government
money in the account but also to the private money that
went into the account and whose expenditure has not been
accounted for. The ingredients of theft have not bee
proved.

For the offence in counts 3 and 6 I have again found as a
fact that while the sum of US$148,000 was traced back to
the Zamtrop account, the possibility still remains that it
could be attributed not only to the Government money in
the account but also to the private money that went into
the account and whose expenditure has not been
accounted for. The ingredients of theft have not been
proved.

With regard to the offence in count 7 charging the theft of
US$123, 989.25. I have found as a fact that this amount

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was paid from the Zamtrop Account. The possibility,
however, remains that the money could have been paid
from the government funds in the account or an account of
the private funds that went into the account and whose
expenditure has not been accounted for. I have preferred
that it is the private money on account of which the money
was paid. The ingredients of the offence of theft have not
been proved.

In count 8 charging the theft of US$27, 904.48, I have
equally found as a fact that the amount was paid from the
Zamtrop Account. The possibility still remains that the
money could have been paid from the government funds in
the account or on account of the private funds that went
into the account and whose expenditure has not been
accounted for. The ingredients of theft in this count have
not been proved.

In count 9 charging the theft of US$33, 000, I have also
found as a fact that the amount was paid from the
Zamtrop account. The possibility also remains that the
money could have been paid from the government funds in
the account or on account of the private funds that went

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into the account and whose expenditure has not been
accounted for. The ingredients of theft in this count have
not been proved.

In these 9 counts charging the offence of theft I am guided
by the holding of the Supreme Court in the case of

MUTALE AND PHIRI V THE PEOPLE (1995 – 1997) ZR
277 where it was said that where two or more inferences
are possible it has always been a cardinal principle of the
criminal law that the Court will adopt the one which is
more favourable to an accused if there is nothing in the
case to exclude such inference. In all the nine counts
above, the possibility of atleast two inferences is there. I
have adopted the inference that the monies were paid from
the private funds in the Zamtrop account whose
expenditure has not been explained. I find nothing to
exclude the inference. As I have repeatedly noted none of
the ingredients of the offence of theft have been established
in the nine counts and I have not been persuaded by the
prosecution’s submissions.

With regard to the offence in count 10 I did find that A2
gave instructions to transfer the money from Meer Care

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and Desai to AFSL while A3 instructed its apportionment
to the four accounts. I have also found the two accused
persons” explanations not to be believable and that they
applied the funds to uses other than for the benefit of the
Government.

The conduct exhibited by the two accused persons satisfy
me that they converted the US$205, 000 when they
applied it in a manner so as to permanently deprive the
Government of the use of it. There is no evidence
whatsoever that they had the authority even of Mr. Xavier
Chungu to apportion the money as they did, I am satisfied
that the ingredients of the offence of theft with respect to
count 10 have been established.

In relation to count 11, I did find that the K25 million was
not traced to the US$200, 000 which came from the
Zamtrop Account to Meer Care and Desai. As such the
ingredients of the offence of theft were not made out.
However, I did note also that A2 and A3 failed to explain
how A3 paid for his shares in AFSL. In these
circumstances, my view is that the two accused had an
obligation to explain reasonably how A3 came by the

J283

money. I would accordingly invoke the provisions of
section 188 (1) (c )of the Criminal Procedure Code, Cap 88
of our laws which states.

“188 (1) when a person is charged with stealing
anything and –

(a) …
(b) …
(c) the facts proved amount to an offence under
section three hundred and nineteen of the Penal Code,
he may be convicted of the offence under that section
although he was not charged wit it.”
The said section 319 of the Penal Code and particularly
subsection (a) states:

“319 Any person who shall be brought before a court
charged with –

(a) having in his possession anything which may be
reasonably suspected of having been stolen or
unlawfully obtained; or
(b)
…,
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And who shall not give an account to the satisfaction
of such court of how he came by the same, is guilty of
a misdemeanour.”

I am of the view that the facts in respect of the offence
under count 11 satisfy the requirements of section 188 of
the Criminal Procedure Code aforesaid. I am satisfied that
the ingredients of the offence have been established.

Finally, though not least, in count 12, I did find that the
K43 million was not traced to the US$200,000 which came
from the Zamtrop Account to Meer Care and Desai. The
ingredients of the offence of Theft were not established.
Like the case in count 11, however, and bearing in mind
that the two sums of money were alleged to originate from
the same amount of money, and that the K43 million was
also paid for Accused 3’s shares this time in Pukupan; and
further that both A2 and A3 failed to explain how A3 paid
for the shares I consider that this is a proper case for
invoking section 188 (c) of the Criminal Procedure Code as
well so that I enter an alternative verdict for the offence of
being in possession of Money reasonably suspected to have

J285

been stolen or unlawfully obtained contrary to section 319

(a) of the Penal Code.
My view is that the facts under count 12 satisfy the
requirements of section 188 of the Criminal Procedure
Code. I am again satisfied that the ingredients of the
offence have been established.

I am mindful of the protestations by or on behalf of A2 and
A3 in the payment of A3’s shares that they were acting as
officers of the AFSL and not in their individual capacities.
It is clear to me, however, that they used their positions as
the principal officers of the AFSL to advance A3’s desire to
acquire shares not only in the AFSL but in Pukupan as
well. The case of D.P.P. V SHAMABANSE (1973 ZR 83
(CA) may provide some insights in the attitude of the
courts in discerning certain actions of those who are
privileged to be in the leadership of institutions.

I would also like to comment before I end that the undoing
of the prosecution in this case was their failure to secure
the testimony of Mr. Xavier Chungu, a very key player,
without doubt, in most if not all of the transactions that

J286

constituted the charges in this case. But then, this is my
view.

VERDICTS

Having considered the evidence in the manner that I have
done I am satisfied that the prosecution failed to prove the
guilt of each one of the three accused persons beyond all
reasonable doubt for the offence of theft contrary to section
272 of the Penal code charged and the following are my
verdicts.

Count 1

Accused 1 – Not Guilty and is acquitted forthwith.

Count 2

Accused 1 – Not Guilty and is acquitted forthwith.

Count 3

Accused 1 – Not guilty and is acquitted forthwith.

Count 4

Accused 2 – Not Guilty and is acquitted forthwith.
Accused 3 – Not Guilty and is acquitted forthwith.

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Count 5

Accused 2 – Not guilty and is acquitted forthwith.
Accused 3 – Not guilty and is acquitted forthwith.

Count 6

Accused 2 – Not Guilty and is acquitted forthwith.
Accused 3 – Not Guilty and is acquitted forthwith.

Count 7

Accused 1 – Not guilty and is acquitted forthwith.

Count 8

Accused 1 – Not Guilty and is acquitted forthwith.

Count 9

Accused 1 – Not Guilty and is acquitted forthwith.

I am, however, satisfied that the prosecution have proved
beyond reasonable doubt the guilt of A2 and A3 for the
offence of Theft contrary to section 272 of the Penal code
charged in count 10 and for the offence of Being in
Possession of Money Reasonably Suspected to have been
stolen or unlawfully obtained contrary to section 319 (a) of

the Penal Code charged in counts 11 and 12 and I enter
the following verdicts.

Count 10

Accused 2 – Guilty and is convicted of the offence of theft
contrary to section 272 of the Penal Code.
Accused 3 – guilty and is convicted of the offence of theft
contrary to section 272 of the Penal Code.

Count 11

Accused 2 – Guilty and is convicted of the offence of being
in possession of money reasonably suspected to have been
stolen or unlawfully obtained contrary to section 319 (a) of
the Penal Code.

Accused 3 – guilty and is convicted of the offence of being
in possession of money reasonably suspected to have been
stolen or unlawfully obtained contrary to section 319 (a) of
the Penal Code.

Count 12

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Accused 2 – guilty and is convicted of the offence of being
in possession of money reasonably suspected to have been
stolen or unlawfully obtained contrary to section 319 (a) of
the Penal Code.

Accused 3 – Guilty and is convicted of the offence of being
in possession of money reasonably suspected to have been
stolen or unlawfully obtained contrary to section 319 (a) of
the Penal Code.

DELIVERED IN OPEN COURT THIS 17TH DAY OF
AUGUST 2009 AT LUSAKA

JONES CHINYAMA
PRINCIPAL RESINDENT MAGISTRATE

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