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Chilumba to answer on all six counts
By Speedwell Mupuchi
Zambian correspondent

Former Zambian President, Dr Frederick Chiluba

THE Lusaka Magistrates Court on Friday, February 15, 2008, found former Zambian president Dr Frederick Chiluba with a case to answer and consequently put him on his defence over charges of theft by public servant involving US $500,000.
The court found Dr Chiluba with a case to answer on all the six counts he is facing. But the former Zambian president has placed his trust in God who he said that GOD is in control and I am ready to defend myself. Dr Chiluba and former Access Finance Services directors, Faustin Kabwe and Aaron Chungu are separately charged with theft by public servant.  The trio, as public servants employed by the Zambian government, allegedly stole the money between 1998 and 1999. Among the charges Dr Chiluba is facing relate to houses he gave his former ministers, Eric Silwamba (presidential affairs) and Vincent Malambo (legal affairs) as reward for representing him in the 1996 presidential election petition.

Passing the ruling in a crowded courtroom, Ndola Deputy High Court Registrar Mr. Jones Chinyama sitting as a magistrate said the prosecution established “a prima-facie case against the trio to warrant putting them on their defence
“In this ruling, I therefore ask myself whether the evidence presented is such that a reasonable tribunal might convict upon. I also reminded myself that it is not my role to establish whether the case has been proven beyond reasonable doubt but to simply determine whether there is sufficient evidence to justify the calling upon each one of the accused persons for their defence,” magistrate Chinyama said. Magistrate Chinyama observed that the money that Dr Chiluba allegedly used to purchase houses for Mr. Malambo and Mr. Silwamba including money used to pay for his children’s school fees was from the security account, popularly known as the Zamtrop account that was managed by the Office of the President whose director general was Mr. Xavier Chungu.

He also observed that the defence submitted that the money in Zamtrop account was co-mingled with Dr Chiluba’s personal money that was used for his personal expenses.
Magistrate Chinyama noted that at that stage of the proceedings, there exists evidence which a reasonable tribunal might convict on assuming that there is no further evidence”.
“I therefore, find each one of the three accused persons with a case to answer with respect to the offences that they are charged with and I put them on their defence.”

Dr Chiluba and his co-accused are expected to open their defence on May 5, 2008.
Lead prosecutor in the case Mr. Mutembo Nchito had submitted that the evidence they had demonstrated that all elements of theft by public servant and theft simpliciter were present.
Mr. Nchito submitted that one of the ingredients of theft was taking or fraudulent conversion where a person either moved or caused money to move or converted this money to his or another person’s use where that person to whom it is so converted was not the owner.
Mr. Nchito explained that in terms of count one and four an amount of US $242,484 of government funds remitted to the Zamtrop account was moved from that account routed through Meer Care and Desai in London ending up in an account at Access Financial Services. He stated that Faustin Kabwe caused these funds to be remitted to Access Financial Services whereas Aaron Chungu caused US $50,000 of the same funds to be paid out to Standard Chartered Bank for the benefit of Shonga Steel as a deposit for the property in Roma township which was acquired for Mr. Silwamba in pursuit of an undertaking made by Dr Chiluba to Mr. Silwamba.

Nchito told the court that in terms of count two and five, an amount of US $160,000 of government funds remitted to the Zamtrop was moved from that account routed through Meer Care and Desai in London ending up in an account at Access Financial Services. He said that Mr. Kabwe caused US $125,000 of those funds to be remitted to Access Financial Services whereas Mr. Chungu caused the same to be paid out to D.H. Kemp and Company for the benefit of Shonga Steel as a balance for the Roma Property that Dr Chiluba promised to Mr. Silwamba. Nchito stated that in terms of count three and six an amount of US $150,000 of government funds remitted to the Zamtrop account was moved to Access Financial Services and Aaron Chungu paid out the same money to E. Florence as purchase price for the Kabulonga property procured for Vincent Malambo through a company called Zamdaell to consummate Dr Chiluba’s promise to purchase the said property for Mr. Malambo.

Mr. Nchito said that stealing, as in the case, would also involve moving money out of the rightful owners’ account and depositing it in an account where the thief had control over it. He explained that theft could occur stricto sensu provided there was conversion of the thing stolen and that it was unquestionable that the money in dispute was converted to the use of persons other than the Government of the Republic of Zambia (GRZ). Mr. Nchito submitted that the taking or moving of something of the crime committed by Dr Chiluba, Mr. Chungu and Mr. Kabwe occurred by moving or causing to move GRZ funds from the Zamtrop account to Meer Care and Desai Client’s Account for the benefit of Access Financial Services and the further movement of the money from that account to the Access Financial Services Account number 200053028 at United Bank of Zambia (UBZ) and the crediting of the money to the Zamdaell Account at Access Financial Services belonging to Zamdaell Limited a company owned and controlled by Mr. Kabwe and Mr. Chungu.

Current director general of the Zambian intelligence, Regis Phiri, testified that contrary to the “protestations made by Mr. Kabwe and Mr. Chungu, Zamdaell Limited and its assets did not belong to Office of the President. Mr. Nchito noted that the actus reas of the crime also occurred in the use of money to pay for private contractual obligations entered into by Dr Chiluba, which constituted conversion of GRZ funds to the use of other persons other than GRZ.
He said that some of the money that found its way into the Zamtrop account from ‘private sources’ was in fact constitutive of GRZ funds laundered through Wilbain Inc and the private money allegedly remitted to Zambia National Commercial Bank (ZANACO) London Branch for the benefit of Dr Chiluba was not kept in the Zamtrop account until January 2001 long after the money alleged to have been stolen under the indictment was paid out of the Zamtrop account.
In his defence, the former Zambian president, through his defence team, submitted that he had no case to answer and asked the court to acquit him saying the essential ingredients of the theft charge have not been proved.

Submitting on behalf of Dr Chiluba, Mr. Kabwe and Mr. Chungu on a submission of no case to answer, the lawyers - Simeza Sangwa and Associates stated that charges against the accused were œspurious, ill-conceived and malicious .
“All the prosecution witnesses did unequivocally concede that the three accused persons did not receive or take the moneys that form the basis of charges against them. Neither is there evidence to suggest that they converted the said monies for the benefit of another person other than the owner. The witnesses conceded that there was no role played by the accused persons in the movement of these monies.”
“Article 43(2) states that a person who holds or held the office of President enjoys absolute immunity for acts done while performing the functions of that office - official capacity while under Article 43(3) a person who held the office of president enjoys legal immunity for acts done in his personal capacity while he held office of president but this immunity could be removed to allow for his prosecution once the National Assembly has passed such resolution,” Simeza stated. “Whilst in 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 a person did in his private capacity and not acts he did in his official capacity or while performing the functions of his office as president.
Simeza submitted that the charges brought against Chiluba for acts or offences allegedly committed whilst acting in his official capacity as president of the Republic of Zambia were legally incompetent as he was not amenable to the criminal jurisdiction of the subordinate or any other court of law in Zambia. Simeza pointed out that Chiluba was only to be amenable to the jurisdiction of the subordinate court in respect of acts done in his personal capacity when he was president. He said that charges brought against Dr Chiluba related to acts purportedly done while performing the functions of his office rendering his prosecution unconstitutional and legally wanting He stated that there was no evidence to show that Dr Chiluba stole the money in question on different dates but only assertions and fiction .

Dr Chiluba is charged with six counts of theft by public servant between 1998 and 1999 contrary to the provisions of section 272 and 277 of the Penal Code CAP 87 of the Laws of Zambia. On count one, Dr Chiluba on June 30, 1998 in Lusaka while being employed as in the public service as president of the Republic of Zambia and whilst acting together with Faustin Kabwe, Aaron Chungu and other persons unknown allegedly stole US $50,000 on cheque number 6119, the property of the Republic of Zambia. On the second count Dr Chiluba allegedly on the same date with Kabwe, Chungu and other unknown persons to stole US $125,000 on cheque number 6119 belonging to the government of the Republic of Zambia. Dr Chiluba is on the third count on December 22, 1998 while acting together with Mr. Kabwe, Mr. Chungu and other unknown persons alleged to have stolen US $148,000 cash belonging to the government of Zambia. He is on the fourth count with the same people but in December alleged to have stolen US $123,980.25 cash belonging to the government of Zambia. Dr Chiluba is on the fifth count on October 14, 1999 in Lusaka and acting together with unknown people alleged to have stolen US $27,906.48 cash the property of the government of the Republic of Zambia.

He is on the last count, on December 22, 1999 and acting with other unknown persons alleged to have stolen US $33,000.00 cash the property of the government of the Republic of Zambia. On the other hand, Kabwe and Chungu are alleged to have on May 14, 1998 while acting with Dr Chiluba in Lusaka stolen US $50,000 on cheque number 4938 belonging to the Republic of Zambia. On the second count, the duo is alleged to have on June 30, 1998 in Lusaka while acting with Chiluba stolen US $125,000 on cheque number 6119 the property of the Republic of Zambia. Mr. Kabwe and Mr. Chungu are on the third count, on December 22, 1998 while acting with Dr Chiluba alleged to have stolen US$ 148 030 cash the property of the republic of Zambia.
The embattled former Zambian president is challenging registration of a London High Court judgment that established that he and other Zambian defendants defrauded the Zambian government. Dr Chiluba had contested that the Zambian High Court had no jurisdiction to register a foreign judgment without a Statutory Instrument that was supposed to be issued by the President.