Kennedy Phiri: Once again the guest is Mr Maxwell Nkole Task Force on Corruption chairperson, good evening Mr Nkole and welcome to the programme.
Nkole: Good evening thank you, it’s a pleasure to be here.
Phiri: It’s great to have you. We are really blessed that you could find time to be with us on this programme.
Nkole: No… I had to, I have not been to the studios for a long time. I think I passed through once and it’s a great pleasure to be back here.
Phiri: Mr Nkole I think getting underway it is important maybe for us to establish the background to the issue that we are looking at this evening.
Nkole: …I have been in this job for the last four years and it was in 2005 that President Mwanawasa approached me to come and take over this role from old man Mark Chona because he wanted to make a change. So I left my United Nations employment to come and take up this challenge. And at the time and in accordance with the President’s briefings, there were over 70 cases the Task Force had opened and some of these cases involve Dr Chiluba and some other people whose cases we have already processed. The President was anxious that the cases were not moving and he told me that there was need to get these cases moving and where there was insufficient evidence close the cases and clear the people who are suspected to have committed the offences. But at the same time he said to me that you have to prosecute those where there is a prima facie case, so since my arrival at the office we have been scrutinising through this case files and as you know looking at the whole administration of president Chiluba’s government, the ten years, it’s quite a huge task and so here we are and several other cases have gone under. We have secured convictions as Task Force in extent of 13 convictions. We have outstanding cases at investigation stage, we have been involved in the recovery of assets and we also been involved in both criminal and also civil litigation. Most of these cases at civil law here in the High Court in Zambia going all the way on appeal up to the Supreme Court are still outstanding. Some of the litigation we have been involved in including the London judgment are cases that are yet to be registered here again opening up another avenue for civil litigation before our own High Courts here. We have several cases at criminal law, which are still outstanding and one of them is president Chiluba’s case, which ended up in acquittal last week. Shortly after the acquittal, I issued a statement to say that we welcome the conclusion of that case because from 2003 and this is 2009 it’s six years later. We have been in court back and forth and these cases were not being decided on time. So for us at the Task Force we are quite happy that the case had come to a conclusion and I said regardless of what is the finding of the court, let us accept that the court has made a decision. Now apparently I was misquoted to suggest that I was saying that we have accepted the judgment, far from it!
Phiri: We are meant to believe that you congratulated in fact the former president on that one.
Nkole: No, no, no! I didn’t. All I said was that we do accept as Task Force the decision of the court because we have to respect our courts’ independence of the way they do things. However, we were unhappy and because maybe I didn’t come out strongly about us being unhappy following the acquittal two three days later it became necessary for me to clarify our position and that’s when I said that we are not happy with the acquittal because we strongly believed that Dr Chiluba was not innocent and there were reasons for that. At the same time we also welcome the conviction of the other two co-accused persons in the same trial. We said we welcome the conviction of the two co-accused person but we are not happy with the acquittal of Dr Chiluba, we believe he is not innocent.
Phiri: What does the acquittal mean?
Nkole: The acquittal unfortunately it’s the decision of the court and what it means is that either party who is dissatisfied with the decision can go to a higher court and raise grounds of appeal. In this case for instance, if you look at conversely the conviction of Mr Kabwe and his co-accused Aaron Chungu and then subsequent being sentenced to prison, they went to prison and actually filed the notice of appealing. They are appealing against their conviction and sentence. And the court said then that either party to those proceedings can actually appeal. The court gave the right to either party either the state, Mr Chungu including Dr Chiluba can make an appeal on this matter. The acquittal for us it’s the decision of the court, which we respect and we have the freedom to either appeal on it or leave it as it is and that’s how we are looking at things. Subsequently, I have given instructions to MNB Chambers who are the lawyers who have been conducting the prosecution of this case all these years to say that if there are good grounds of appeal, we should go ahead and make that appeal.
Phiri: On the same aspect of appealing Mr Nkole, people have argued that you do not have the mandate, that mandate that has to come from the Director of Public Prosecutions (DPP).
Nkole: They are arguing out of ignorance. In my briefing notes upon my appointment, I sat with the President and he explained to me how he expected me to work with the DPP, how he expected me to work with the Attorney General. And he defined what should be the role of the chairman of the Task Force against corruption. He did underline that we have a collaborative relation with the office of the DPP and Attorney General. He never said I should take instructions from the DPP or the Attorney General for whatever we do because president Mwanawasa wanted to be very distinct about the role of the prosecutor and the role of the investigator. He didn’t want to mix the two roles so he said the chairman of the Task Force will be solely responsible to carry out investigations and then I am going to give him a pool of lawyers to work with. Should the matter require that it should go for review to the DPP, the chairman refers the matter to the DPP and that is how we have operated. I work very closely with the office of the DPP together with the Attorney General and all these cases we have done in London and prosecution of cases we have done here we have done and I have done it with full disclosure both to the Attorney General and the DPP including this particular acquittal.
Phiri: What is your reaction listening to latest information coming through that the DPP has given instructions that you shouldn’t proceed with the appeal? He feels that there is need to study the court ruling.
Nkole: Well I think it’s a question of semantics I am not sure that he is supposed to…I think he has advised. He gave advice that he wanted to look at the judgment so that he can give his own opinion. But that’s not the way we operate, how we have operated in the last six years is that our prosecutors prosecute these cases and if these cases are appeallable, we make a decision, a management decision at the Task Force that we should appeal. That’s how we have operated. I personally do not think president Chiluba’s case is anything special that our own prosecutors or indeed myself cannot make a decision that we are going to appeal. And it’s from that premise that I wrote a letter to MNB chambers. I said well it looks like there is an acquittal here but according to the advice you have given me, there are grounds to appeal I would like you to go ahead and in the meantime let me inform the DPP that we are going to go ahead with the appeal, so he was informed.
Phiri: Are you going to take his advice on this or not?
Nkole: Advice to appeal we have already appealed. As a matter of fact, I shouldn’t even be discussing the merits of our grounds of appeal right here because we already lodged in the papers. As of this afternoon, the clerk of the High Court has already accepted the documentation. It is already in so it’s not an issue now and if I try to make any comments on our appeal strategy it will be subjudice. I would rather not make any comment on this matter and it’s a matter that we gonna have to deal with internally between my office and that of the DPP. But in terms of legality of whether we should appeal or not, the appeal as already gone through.
Phiri: Are you able to walk us through some of the grounds that you feel this case has to go back to court?
Nkole: Well not exactly, I would rather maybe we don’t discuss the grounds of appeal right now especially in view of some of the political interests that are being expressed right now in the Chiluba camp and among some of our own government officials, I would rather not. But I think that our statement is that we have already filed an appeal, as of this afternoon it’s gone through and whosoever wants to be party to that appeal is free to come and join us.
Phiri: Talking about political sentiments really before judgment there were such political statement…I know you have spoken highly of the late president Dr Levy Mwanawasa, really is the current government committed to fight this corruption?
Nkole: What I would say is that Kenneth Kaunda had his own strategy of fighting corruption. I remember I was on the team that investigated Kenneth Kaunda on the copper gate and president Chiluba came into office after Kaunda and he commissioned an investigation against Kaunda for theft of copper. And I and the late Alex Makayi we looked into those and we developed some case files. He had his own strategy how he wanted to investigate alleged corruption, president Chiluba. Then after him comes Mwanawasa and Mwanawasa too forms the Task Force against corruption and he believed that high-level corruption had gone too far in president Chiluba’s era so he creates the office that I am heading and we have been working by way of a vision that Mwanawasa had and the strategy that he had. Now after Mwanawasa, we have the current government who is actually a spill over or just a continuation of Mwanawasa’s legacy. They have inherited the Task Force and I think since the time President Banda has been in office, we have heard from government, the leader of the House saying that the fate of the Task Force is being decided by the government, which is fine. Which means that the government is looking at maybe the new strategy of how to advance the fight against corruption and may not necessarily want to approve the current status quo. If it is the intention of the government to disband the Task Force at this point in time, it is within their will to do that. We will be more than ready close the doors and handover the keys.
Phiri: Do you think this issue is coming up maybe because of the way the Task Force was established? People have argued really that your body is basically illegal.
Nkole: You know Ken, president Mwanawasa invoked and you can read this on your own Article 61 of the Constitution of Zambia in creating the Task Force. And that Article 61 states that the President of the Republic of Zambia shall have power, one to create and to dissolve any office within the land, two to appoint and disappoint any other person that he wants and in his appointment letter president Mwanawasa cites the provision of the Constitution to say in the exercise of powers vested in me as president of the Republic, I hereby create the Task Force on Corruption, which will be headed by a chairman.
Then he goes to spell out the duties of the chairman of the Task Force on Corruption. People have said the Task Force is illegal, if the president is acting within the powers of the Constitution is he acting illegally? I don’t know where some of the people which law school they went to…I went to the University of Zambia and I know that when the president invokes powers vested in him under the Constitution, he is acting legally and constitutionally. So those people that have been challenging the legality of the Constitution maybe might be doing that out of ignorance. They don’t know what the president did to create this office. What they could be doing is maybe challenging the current administration or whosoever is in the office now to say can you revoke the creation of this office. And of course the president including President Banda right now has got the power. If he wants to close the Task Force tomorrow all he has to do is invoke his powers under the same Constitution, the same Article 61 and say I hereby dissolve the Task Force and then tomorrow we can lock up and go, period.
Phiri: Has the death of president Mwanawasa made your work any difficult?
Nkole: Well, president Mwanawasa had a great passion and being a lawyer himself he wanted to follow details of our work to the letter because as a practitioner he was always interested in knowing the outcome of cases, in knowing difficulties of the office and through the executive briefings I could have with him he would ask me if I was having any difficulties. And when it comes to logistical support he would refer me to the Secretary to the Cabinet to say go and see the Secretary to the Cabinet to look into your staffing levels or into your transport or fuel problems or your travel and stuff like that. When it came to policy matters or matter pertaining to civil litigation he would encourage me to say go and discuss it with the Attorney General. If we were prosecuting a matter which requires the consent of the DPP he would encourage me seek concurrence of the DPP but in all these other cases we don’t need the DPP’s consent to prosecute, we make our own decisions within the Task Force because we’ve got qualified lawyers some of them, ex-lawyers such as Sebastian Zulu are State Counsels, Mr Mundia State Counsel these guys are fully, totally qualified to analyse and give opinion on any matter and we have been guided. The success that has been registered by the Task Force in terms of conviction and stuff like that is a result of the good work that these lawyers have been putting in. We haven’t had assistance in terms of prosecuting these cases from the DPP’s chambers. We don’t have prosecutors seconded there because most of the officers there may not be fully acquainted with the cases at hand. So the DPP and the Attorney General made a decision that we should hire private practitioners, people that are already in practice to come and assist us and these are the people that we have been working with and they are capable of making any decision on any matter.
Phiri: Maybe I bring you back to the case of the acquittal…there are so many issues that are pending, we know that you seized a number of properties from him, what is the status as regards this property?
Nkole: Again I said that we have filed an appeal pertaining to the criminal case and it’s only one criminal case that we have been dealing with concerning Dr Chiluba, which is to do with the Zamtrop account. We haven’t yet pulled out the other files from our closet where Dr Chiluba is implicated in, we haven’t yet done that. So we just wanted to pull the Zamtrop case upon which he has been acquitted in order not to be seen that we are being vindictive or we are just trying to mess Mr Chiluba around by bringing in so many cases at the same time. But I have information, I have the intelligence concerning his involvement, if I may say on other outstanding investigations, which I propose that we should wind up because I inherited these cases, they have to come to conclude. And needless for me to dwell in into which cases these are because you see it might be prejudicial to him. But just broadly speaking we have the Carlington maize… eight and half million dollars, with two Canadian commodity brokers Ali Ben Menashe and Alexander…the two directors of Carlington. Alexander we have traced him now he is in Louisiana Prison and so it’s our intention to talk to him and tell us where they took the eight and half million dollars? Who benefited from the eight and half million dollars? Is there any Zambian who benefited? The same thing goes with the US $20 million, which went to Mr Katebe Katoto. We’ve got to get to the root causes and beneficiaries of this money, where it has gone. This is Zambian money, you close the Task Force today you have to make a provision to ensure that these cases are concluded tomorrow or the other day. For now we have the mandate to deal with these cases, so we gonna have to deal with them for as much as we can and given the competencies at hand. If anybody is trying to block processing these cases because they want to close the Task Force, it is within their right to do so and the authorities will be able to see through why people are advocating for the closure of the Task Force.
Phiri: What could be the implication if such a move was to be taken that the Task Force is closed?
Nkole: Obviously, the government will have to put up what we call an exit strategy, they have to guide us as to how they want the closure to take place from the point of maybe handing over case files which are currently pending to another institution and then also telling us how to clear up all the cases which are currently in court. And also move forward now to an administrative closure and accounting for everything that we have done before we hand over the case. But I think it will be up to government to propose if eventually they decide that yes we should close by such and such a date they will give us the guidance of how they want to close it. Sometimes you can just slum the door and say it’s closed. We don’t mind about that and it’s not within our competence to suggest whether they should or they should not close the office. All we know is that the government intends to give much more power to the Anti-Corruption Commission (ACC), they want to strengthen it in several ways so that they can be the leading institution to tackle cases of corruption in future. If that means handing over all the cases that are at the Task Force to the ACC we are more than willing to do that.
Phiri: We move on Mr Nkole…I wanted your interpretation of the London judgment, which is yet to be registered here… what is the connection, the London judgment as well as the acquittal given?
Nkole: Absolutely, absolutely, you can look at it this way, the London case, the level of us as prosecutions group to prove that case is slightly lower than the level that is required in criminal cases. In the civil case you have only to prove the case maybe on a balance of probabilities they call it. Due to sufficient evidence to show that a wrong has been occasioned, on the other hand a criminal case requires a higher standard of proof beyond reasonable doubt. It is that ‘beyond reasonable doubt’ that on Monday last week the court here decided that maybe we didn’t discharge that burden of beyond reasonable doubt. But mind you this is the same court who said, who says, we haven’t discharged the burden who at the closure of the prosecution case had indicated that Dr Chiluba had a case to answer. They made a ruling, he has got a case to answer and they proceeded to put him on his defence. He was put on his defence and he gave an unsworn statement. Had he given a sworn statement, it would have enabled us to cross-examine him on the monies on his account so-called Zamtrop money, which was received on his behalf from well-wishers we wanted to know, who are these well-wishers? Could these well-wishers be some of the Carlington people who have taken US $8.5 million, could some of these well-wishers be the Katebe Katotos who have taken US $20 million, we want to know. So the very fact of finding him with a case to answer at the closure of the prosecution case and then with all the contradictions that eventually happened in the course of the defence case we find that no, he is not an innocent man. The same court alludes to that fact that they found him with a case to answer. So now when you compare the two, the liability case in London found him liable for fraudulent transactions and ordered that he should pay an equivalent value of money. We yet have to register that judgment so that we enforce it…now in extent of US $50 million, we have to recover from Dr Chiluba. And I want to say that the criminal matter has got no bearing on the London civil case because the London civil case is not about Zamtrop per se. It’s about various other illegal things that occurred in his administration. The Zamtrop case upon which he has been prosecuted two of his co-accused have been convicted personally, I don’t see how he could have been acquitted.
Phiri: Do you think there was an invisible hand in this judgment?
Nkole: I wouldn’t say, what has happened here only upon appeal shall we know the truth. Nobody should want to block the appeal because we want to go and argue to present our arguments before a higher court as to why we think there should have been a conviction and I hope that nobody in the corridors of power and elsewhere should come and say we are blocking this appeal. You can’t block an appeal, the court said either party can appeal, why should anybody want to jump up and say you are not gonna go ahead. If the two co-suspects who have been convicted have got a right of appeal why shouldn’t the state have a right of appeal? So for me, I think that what I did in instructing MNB to go ahead and file the grounds of appeal is the rightful thing. We have to be seen to be advancing the due process of the law. We can’t block a due process by saying we shouldn’t go ahead with the appeal let the higher court….after all these cases are of great public interest. You know these are not cases that you want to close just at the magistrate level and say it’s done, it’s not done. You gonna have to prepare yourself to go all the way up to the Supreme Court. That is how justice is dispensed and that’s how it supposed to be seen to be dispensed.
Phiri: On the registration of the London judgment, where are we?
Nkole: We have started off very well, the Attorney General did a good job and we went before the late justice Japhet Banda but unfortunately as you know he passed on in a traffic accident, which means we have to restart the whole motion. Filing in motion before another judge, reallocation of the case before another judge, setting up dates of trial and most of the calendars are actually locked up. As of now, the Attorney General is trying to secure the dates when the hearing could take place. The Chiluba camp and his co-defendants are challenging the registration of that. So most likely we are going to go in for a protracted litigation just to get the registration of that judgment endorsed or secured by the court it will be protracted. And so far as that judgment…the London judgment is not resolved, you can’t talk about the lifting of Chiluba’s immunity. And in so far as these criminal cases upon… the state hasn’t yet exhausted the proceeding and the procedure of appeal up to the Supreme Court, you can’t talk about the lifting of somebody’s immunity.
Phiri: Some people argued that the case in the London High Court is a civil matter that can’t block the issue of restoring his immunity.
Nkole: When his immunity was being lifted, it never stated that it’s only limited to criminal matters, no! All sorts of abuses committed during his administration whether they are civil or otherwise. We, the people that have been strategising to select and choose which abuses, we decided that some of these abuses are best dealt with civilly. So a better option which would eventually just lead us to recover the amount of money, which was abused. Houses were bought using government funds, we have to recover all that…vehicles were abused, money spent on children’s education, public money and a poor Zambian there in the streets is actually there suffering, so we have to recover that and restore it to the Zambian people. President Mwanawasa said that all the monies that are being recovered by the Task Force should go into a recoveries account at the Bank of Zambia, which is actually managed by the Ministry of Finance and that, that money should therefore, eventually be used by the Ministry of Health to upgrade district hospitals across the country. Now that is not up to me to say what is going on there, that will be up to the government to say whether that policy, which was endorsed by Cabinet is currently ongoing and if they are using those monies that have been realised. The London judgment is in extent of 400 million if you put all the defendants together. We have to enforce that judgement in respect of each one of them. By the way, we have already made recoveries against Shansonga one of the co defendants. So what stops any other co-defendant from not paying their liabilities? Boutique Basili who was making the shoes and suits for Dr Chiluba says ‘here is your money I am giving it back to the Zambian people I didn’t know that I was doing this thing in a country which is as poor as what I have come to learn. I cannot have any of this money you have to have it back.’ He has paid it back so several other defendants are starting to pay back this money and there is nothing special why Dr Chiluba’s liability should not be enforced. You can argue and delay its registration but at the end of the day, we have a solid case against him at civil law there. And then side by side as I have said that we gonna have to appeal on this matter. We also are going to look at other criminal cases that are pending and outstanding and I hope that the authorities should not block us either as Task Force or indeed any other law enforcement agency from stopping to look into these cases.
Phiri: Talking about the same London case Mr Nkole, we are made to believe as a country through you the Task Force we lost about US $40 million.
Nkole: No… over the period of my time which is when the donors came on board in October 2005, that’s when they signed the MoU between the government and the donors, the donors have only put in US $10 million, which is US $5 million in 2005 and 2006 and then six and seven. So five, five…ten all together all the donors put together so I don’t know who is dreaming those figures of US $40 million and then all the other expenses it’s been born by the GRZ. All other expenses the donors put in and so you know…and all that money has been utilised to pay our London lawyers.
Phiri: Your push for the appeal is also being interpreted as just for personal benefit. We are meant to believe in a month on I think allowances and salaries it comes to K1.2 billion for about six people.
Nkole: I have never taken a single allowance from the Task Force since my appointment not even housing allowance or any sort of allowance. Of course maybe I do take a day or two if I am flying out to go and pay for my accommodation but I don’t take any allowance at all. Those officers working for the Task Force are drawn from the Zambia Police, DEC, ACC… there is only one person who is on contract at the Task Force and that’s me, I don’t draw that kind of salaries or allowances. By virtue of their operational duties, they are required to get maybe an operational allowance when they are operating outside Lusaka. That is all normal, it’s happening in all government institutions. There is nothing special about somebody working for the Task Force getting an allowance which allowances is gotten by anybody else so there is nothing so peculiar about that. They do get sort of an operational allowance when they are on duty but the figures don’t go to the kind of figures I think the person giving you those figures needs to come and see me or indeed read the Auditor General’s report because these things…our office is so public all the money from donors, all the money from the government is always reflected, the expenditure in the Auditor General’s report.
Phiri: Before I get to the messages, we have received a couple of messages that I will be able to read for you to respond…operational challenges I know that at some point the donors did withdraw, how are you managing in terms of…
Nkole: It has been difficult that is why it’s so difficult for us to, for instance, go and operate and trace the Carlington maize money in Canada and in the Canary Islands and in Jersey out there you need money to get there, to go and do operations there. The donors pulled out in May 2007 and since then, the government has been left alone to bear the costs. Of course, you know on one hand I would agree with the government when they say we should close the Task Force because it’s been expensive for them to run as a government on their own without assistance. Yes, I think they are legitimate reasons to do that, the London case is going on, there are still certain by the way motions and litigation still going on attracting legal cost from time to time. So it becomes a little bit difficult and the government has to decide when are they gonna stop this? But that is not to say they should stop to pursue the recovery of the US $20 million on the arms deal or indeed the Carlington deal or indeed any other of these flaws that were committed during the ten years of this administration. They should recover that money, there is nobody who has got the moral right to say stop that investigation because those are public funds, they have to be restored back to the Zambians somehow, we got to work out the mechanism of ensuring that…even if we can’t prosecute for being complacent or collusion in the loss of this money but at least we should be seen to make demonstrated efforts to recover the money on behalf of the Zambian people.
Phiri: Mr Nkole let’s see if you can be able to respond to some of the messages that we have received from our viewers quite a number of them that we have received. The first one says ‘Mr Nkole I feel the people of Zambia are betrayed by you and your people, you and you people were tasked to do something which you have failed to do, sad, what next now? One day Zambians are going to…’ maybe I take two or three then you respond. The other one says ‘we are human beings and we all know God please let him enjoy his rest of life forgive and forget lovely Zambians Mr Tembo from Lusaka’. Maybe the last one says ‘it was on news that only DPP can sanction an appeal against FTJ your comment sir!’
Maybe just the first one, this one who feels really betrayed the Zambians…you were tasked to do something, which you have failed. Is it true you have failed?
Nkole: I don’t know what’s failure in his definition. We are still pursuing these cases, we are still recovering money, we have recovered so much money in terms of asset recovery. We are yet up to enforce the London judgment. We have been prosecuting Mr Chiluba for US $500,000 and that case has collapsed, we are appealing and this is where I think that as Zambians we have to be careful. There is a Zambian complaining that you have let us down because of the acquittal and there are certain interest groups that are saying you can’t even appeal against it. Why shouldn’t we appeal? So dear comrade I think to the writer I would say that you are supposed to be advocating for us to appeal because in any case what if the higher court actually overturns the acquittal and finds this man guilty, what are you people going to say? It’s just fair that we ensure that justice is seen to be, being done and that both parties be allowed to do what is rightful…their right to do, which means if either party feels we should appeal we should go ahead. I feel that we should appeal I have given instructions that we should appeal and my lawyers have told me as of this afternoon the papers were lodged, I am quite happy with that.
Phiri: This one says that ‘how true is it that you are trying to shield the cases of theft coming against you?’ The other one says ‘Mr Nkole we know you just want to continue with your fat salary. As Zambians we are saying no to Task Force, we want to remain with the ACC please leave him alone’. Okay may be we can take another one, ‘this one says you are just wasting our taxpayers money, leave Chiluba’. Then this one says ‘Max The Post will use you to make their money and dump you be careful, the way you talk, act professionally and not politically’. Maybe you can respond to this…
Nkole: I have no relationship with The Post in my previous life. The Post has actually castigated me. I don’t know the owners, I am told it’s Mr M’membe and other people. I have no relationship with them. I am a professional pure and pure, at the UN yes, maybe my salary was in extent of US $12,000 to US $13,000 I was earning for the last 10, 11 years. When I came here my salary has dropped to almost US $3,000. So there is no fat salary I am picking here as compared to where I am coming from. And all these poor policemen from DEC and from police and whatever, they are just getting their basic police salaries. Nobody is gobbling any fat salaries from the Task Force at all, nobody! Not me, not even an allowance. And if it comes to people thinking that some of us are sticking on to this job, it’s just that we feel so passionate about what president Mwanawasa stood for. We have to redeem our country from corrupt elements and we have to fight this vice. It’s up to the fight, you need courage, you need determination to get into the shoes that I am wearing. You can’t fight corruption if you don’t have the courage to do it or indeed the passion. Mwanawasa came and said I think you can do it and I am doing it regardless of my little salary, I am doing it for mother Zambia. I’ve got passion to and I enjoy what I am doing so forget about people saying that fat salaries and stuff like that, that’s just petty jealousy and if any Zambian wants to come and do my job let them apply and come and do it. They are so free to come and want to take over and come and champion the cause for me I will support them. If anybody wants to take over my shoes and become the chairman of the Task Force on Corruption and promises that he will assist us to recover the money that has been plundered and restore it to the Zambian people, I am more than ready to leave office tomorrow. Anybody who has got the capability to compare in terms of efficiencies and effectiveness to drive these cases forward can come forward and take over. I’m just an ordinary Zambian. And I am just there to try to do what the Zambians want me to do. Fortunately for me the president says I have got some talents and some skills to try to assist to drive the fight forward. I have been trying to do that. If I am failing the Zambians, fine I think the appointing authority will review my performance and ask me to leave and get somebody else and I will go with my head up.
Phiri: We move on and take some more messages. Quite a number like I mentioned…’you have spent a lot on this case already some of you are stinking rich we know kalilo’. This one says ‘Mr Nkole don’t listen to fake NGOs who have no followers’. This one says ‘Mr Nkole why don’t you leave him alone, acquittal was free and fair I think it was the only case that you depend on’. This one says ‘how is it possible that for people involved in a case one goes scott-free whilst the other three get five-year jail sentence on the same case’?
Nkole: Absolutely, and that’s why we are going on appeal because we are saying that it’s similar facts, the case is drawn from more or less similar facts. You can’t lock these two people in and then acquit the other one. There has to be very compelling reasons why he is being and these are the reasons which we want the higher court to go and review. And let me also say that the Task Force was not created just to prosecute Dr Chiluba’s US $500,000 case that’s all, no! I think that is completely a mistaken position. Task Force was created to look at the general abuses and this Zamtrop case upon which he registered an acquittal is just one of the several cases that are supposed to be put up against him. And if people are trying to advocate to say leave him alone, who is going to bring back your US $20 million which was supposed to be used for the purchase of firearms here. Are you going to let that money go just like that? And then these same people who are saying leave him alone they will go around knocking and saying no I fought for you to say they should leave you alone so give me a percentage. Is that we are going to…no I am a fighter and we are not going to allow that. We have to pursue these cases rigorously until when we recover the money that’s been plundered…US $20 million just talk about US $100,000, US $50 or maybe US $5,000 what it can do in the township here just to uplift people’s lives, maybe put a borehole, maybe put a small road or a bridge or something like that. Now you are telling me, me appointed to fight corruption I should just let go of US $20 million down the drain? You got to be joking! And if that is the general attitude of Zambians to say leave him alone I wouldn’t leave him alone. We have to pursue justice to its logical conclusion. The Bembas say umulandu taubola the case can take for as long as 10 to 15 years, the case will still be outstanding there. If my investigators tomorrow have to go to Canada to go and talk to Alexander… before he is sentenced on 10th October and he is going to tell us who has benefited out of the Carlington maize and which bank accounts were used to deposit those monies, is that not fair for the Zambians to know? Is it not fair for the Task Force or indeed any other law enforcement agencies to follow up and recover that money and bring it back? That is taxpayers money. And so much money else has been lost in the privatisation of the mines and the parastatals, we just don’t have the capacity to follow up on each one of these cases and take these people to court because we shall be accused of harassing them. But we would like to do a thorough job, a professional job so that when we take somebody to court we know that we have a prima facie case. In all these cases we have taken to court the courts have actually agreed with us that they were good grounds to be taken to court including that of Dr Chiluba. We presented the case at prosecution stage and the court said yes, you had established a prima facie case and I am gonna put this person on his defence, that’s what the court said. Anna Chifungula, the Auditor General, as a prosecution we didn’t call the Auditor General to come and give evidence on our behalf to prove whose money it is that was in the Zamtrop account. Anna Chifungula was called by the defence by the Chiluba camp to come and give evidence in their favour and she said you can’t put your private money in a government account, the moment you do that, that money forfeits to the state, it’s government money. That’s what the Auditor General…that’s what is on the record. So these are some of the things, which we are saying I don’t want to comment on them but I think that the innocence of Mr Chiluba on the Zamtrop case for which he has been tried is questionable.
Phiri: As the Task Force what lessons have you learned… really what has happened in the Chiluba case?
Nkole: We are still studying the whole thing and this is why I think that we can only put up meaningful arguments when the matters go before the High Court, that is when I think the Zambians will need to know what has gone wrong. That’s when we can put up our own arguments. We can’t start arguing the case right now here because that is the domain of our lawyers and including the DPP’s chambers to go and argue our case. All we can do is consolidate our case for argument and say we believe that this man should have been found guilty. As to whether or not there has been some influence I don’t want to say that. But it’s quite interesting how a court that has found somebody guilty after the closure of the prosecution case can subsequently found him innocent…I mean found him guilty or with a case to answer and subsequently acquit him, it’s a contradiction for me as far as am concerned. So I think that’s our position and say that we did welcome the conclusion of that case because it has taken so long. I think in the best interest of justice it’s better that these cases be handled by the Task Force that have gone on and on must be concluded. You might want to know that the delays in concluding these cases is mostly attributable to the defence themselves rather than the prosecution side…70 per cent of all adjournments and of all these dragging on of these cases it’s because of the defence trying to find excuses hoping that maybe as we go on maybe one key witness might die. So therefore that will break down the case and stuff like that. If you are trying to accord the suspect due process you just have to conform and say well let’s go on an adjournment. So these cases have been dragging on not because we are interested or because we want to stay in position. We want to wind up the cases and go home, this is a very risky and lonely job. I personally don’t want to stay this way for the rest of my life or indeed another one or two years. I want to be free like you mingle… we cultivate a lot of enemies in this job. We are playing with people’s lives or is it livelihoods and of course they have got sympathisers and these sympathiser are not happy with us and yet these risks that we expose ourselves to by accepting these jobs they gonna stay with us for the rest of our lives. That unfortunately is the price we will have to pay so it’s so disheartening for anybody even to suggest that these people are enjoying there. There is nothing to enjoy in this job, absolutely nothing and until Zambians start appreciating the due process of the law, the fact that legal matters must be allowed to take full course are we going to be ourselves.
You can’t start politicising these cases, these are purely criminal cases and let the law flow…let it flow without suggesting or being sympathetic to any of these people that we are prosecuting.
Phiri: Do you feel the case has been politicised?
Nkole: Well I have heard some political sentiments being expressed ‘leave him alone, give him a pardon’, whatever. Why should we give somebody a pardon? If we give him a pardon we might as well give a pardon to every other person who has gone through our hands. There shouldn’t be any sacred cows, there shouldn’t be any discrimination… certain people given preferred advantage. If all these people that we have been locking up and others who have been acquitted had the right of appeal as a party to the proceedings why should we make special arrangements for Dr Chiluba’s acquittal? Let the law take its course, period!
Phiri: People have said there is also need to extend…that’s why the element where people say maybe witch-hunting comes in. There have been people that have suggested that your mandate be extended even maybe to the Kaunda regime, even part of the late president Mwanawasa’s regime.
Nkole: That’s what you would expect law abiding citizens to be advocating, to say that there should be equality before the law. If Chiluba can be investigated by the Task Force, extend the mandate of the Task Force to include Kaunda’s era, Mwanawasa’s era, that way you will be seen to be fair. I think that is a plausible argument rather than say frustrate the work that has been covered so far because I have to start afresh. And in this job that we do there is need for a very strong political will. We have seen it in this country that governments come and go. There was Kaunda, nobody thought the one party state will ever go, it went. Then came FTJ, he went. By an act of God, we lost President Levy Mwanawasa, now we have a fourth president. A new administration may come in, it could be the same party but somebody else, a leader who comes in looking at issues differently. We don’t want another person to come and say let us open the Task Force again because now we have just realised that they were an efficient tool to fight corruption. Whilst there is still room to modify maybe the task Force as an institution whilst there is still space I think these issues have to be debated and look at the achievements of the Task Force vis-a-vis and see how you can help to advance the cause. I think that is a much more pragmatic way of looking at things otherwise there is nothing personal in this job for anyone of us. I have nothing personally against Dr Chiluba, he is actually my uncle. He is Uncle Fred but I have a job to do and when I speak about this I am not speaking out of hate or any kind of misconceived ideas against him. I respect him, he was my president, he was my commander-in-chief at one time, that’s it but I have a role to play and if you ask me to go and investigate president Kaunda, I will just do that after all we did it before. And if you ask me to go and investigate president Mwanawasa I will do it without fear or favour, that’s Max Nkole.
Phiri: What is the way forward then Mr Nkole regarding what we are facing as regards this case?
Nkole: I think that it’s… for all these people that are advocating and they want to see the demise of the Task Force, I think they are not standing firmly on behalf of the Zambian people. I think that the Zambian people need to be given chance to ensure that the law progresses and protects them and protects their assets. The Zambian people want to see that plundered money which has been stuck in overseas accounts must be brought back, that’s what they want to see, they don’t want to see us closing down shop and abandoning these cases if on the other hand I think one had to look at it he would say that if government decided to close down the Task Force today, tomorrow make the provision so that there is a smooth handover of all outstanding cases to a competent authority, either civil cases to the Attorney General, outstanding criminal cases before, they go to the DPP or indeed cases at investigation stage to the Drug Enforcement and ACC, that way they would have dissolved the Task Force and then those competent authorities can take over. I think that’s the way forward. But for now, let us allow the law to take its course, there has to be an appeal which was recognized by the presiding magistrate to say that either party should be allowed to appeal and we should not be seen to be frustrating that.
Phiri: There is a message here that we can take Mr Nkole, this one says ‘I don’t agree that Zambians have welcomed Dr Chiluba’s acquittal as reported to have been said by the president because no survey or opinion poll has been carried out to that effect. Don’t you think that the head of state should be asked to withdraw that statement?’
Nkole: Spare the head of state, he is a politician, he can say what is best suitable for the country in the circumstances. And we are not going to be talking about what the politicians talk about in these cases. Exactly, the same reason why all these NGOs, all these other people who are not parties to these proceedings trying to make comments should not detract our attention from seeking what is just and fair. What is just and fair is that there has been an acquittal, which we said as Task Force that we do accept the decision of the court, however we don’t subscribe to the theory that, that same decision alluded to Dr Chiluba’s innocence. So it’s on that score that we said that okay not all Zambians actually agree that he was acquitted because there was no evidence. We believe that this issue as to why he was acquitted and on what grounds he was acquitted and whether or not he is innocent or guilty those proceedings can only be determined by a higher court and through a higher court maybe even up to a Supreme Court. Because there are certain critical issues raised in that judgment including whether or not a sitting president is a public servant. You just can’t let an issue like is a president a public servant or not and leave it there and say he is not a public officer, no! Presidents of every country whether elected or nominated is a public servant but am not challenging the decision of the court, am just saying that my own personal understanding, presidents elected or nominated they are public servants and we can go up to the High Court and Supreme Court to argue that point and see whether or not Dr Chiluba wasn’t actually a public servant. So this is where we draw our courage to say this matter has to be argued beyond the current level at which it has been acquitted to a higher level.
Phiri: You have told us that you have appealed just make us understand what next, you have appealed what next, what are we waiting for, what will happen?
Nkole: We have appealed, the matter has to be listed down, it must be allocated to a High Court judge for hearing and we just have to wait to get the hearing dates and either parties will be informed. We have lodged in our appeal, the papers of our appeal will be served on Dr Chiluba’s lawyers and they will start preparing their case of arguments against the appeal and we will also be lodging our own appeal and eventually the judge will sit down to determine the merits of both cases. And I am saying that until such a time that these issues are thoroughly dealt with either through the High Court, the Supreme Court we shouldn’t be talking about lifting anybody’s immunity here. Let us have respect for the law and the course of the law to take place before we can start talking about immunity. Personally, I would support Dr Chiluba’s lifting of immunity if in fact all these cases were cleared, if the London judgment was cleared. This appeal we are lodging is cleared, his outstanding investigations against him are also cleared. I will be the first one to advocate that restore his immunity so that he is free to move up and down.
Phiri: Well, Mr Nkole we have to windup but before we do that I have the privilege to give you I think 30 seconds to give us your wind up remarks on such a programme like this one.
Nkole: Well, what can I say? I think I have said so much. All I can say is that the Task Force was set up in order to recover in accordance with its mandate…one, to investigate plunder of national assets, two, to recover those assets, three, to prosecute any alleged criminality or indeed civil liability for all those people involved and then four; to document lessons learnt. We have had lessons learnt from processing these cases before the court of law and working with other institutions. We have documented cases learnt and these lessons learnt that this country has to try to build upon. Task Force has contributed immensely to the success of case law in this country. We have built up legal precedents which will be followed in future so the institution has not been in vein. It has been very much key in terms of developing the rule of law in this country, in terms of also helping the vulnerable groups, poor people try to get back a little bit of the money. And also I think we have… we will be remembered as one institution that tried to restore to the Zambian people those assets that were looted in order that they can be used for development. I must also say that president Mwanawasa’s vision concerning accountability and transparency and uprightness in public office should be something which should be applauded because working with him and getting his briefings more or less on regular intervals I found him to be a person of very high integrity and he really meant to serve the people. He could say to us that if you don’t have a case against Mr P, please leave him alone, don’t harass him. But if you have got a case against Mr A, which is credible, take it to court. Let the courts decide. At one time we wanted to advocate for special courts to say well in view of the fact that there are complaints…. [break in transmission] Inspiring person to us fighters, inspired us to continue the fight and if the fight is going to be stopped at least we will have lessons learnt which we can impart to future generations, that’s what I can say.