What goes around… Zambia prosecutes another Former President

Lusaka – When Frederick Chiluba’s government briefly jailed Dr Kenneth Kaunda in 1997, no one would have thought every former leader of Zambia – except for Levy Mwanawasa who died suddenly while in office – would be prosecuted.
That precedent came back to bite Chiluba himself, and now Rupiah Banda.
Dr Kaunda, Zambia’s Founding President, was arrested soon after a small group of mutineers from the army attempted a coup in late 1997. Chiluba claimed Dr Kaunda was involved in the coup attempt, which took place when the latter was in South Africa.
In fact, Dr Kaunda spent weeks in Zimbabwe before returning to Zambia after the coup, only going back after getting false assurances that he would not be arrested.
It took the intervention of Presidents Julius Nyerere (Tanzania) Nelson Mandela (South Africa), Ketumile Masire (Botswana), Joaquim Chissano (Mozambique), Sam Nujoma (Namibia) and Robert Mugabe (Zimbabwe, who was at the time OAU Chair) to get Dr Kaunda released.
And then in 2008, Chiluba was himself convicted by a London court of abusing US$49 million of state resources during his tenure from 1991-2001.
Now Rupiah Banda is facing the courts on corruption-related charges.  
On March 15 this year, Zambia’s Parliament lifted Banda’s immunity as a Former President to compel the 75-year-old to explain – among other things – his alleged involvement in a US$2.5m oil deal with Nigeria during his three year term, from 2008-2011.
On March 25, Banda was dragged to court and charged with abuse of authority.
At the March 15 Parliamentary sitting, legislators alleged that Banda had used about US$360 000 of public funds for personal purposes in the oil deal.
Another allegation is that Banda used about US$2.3m of public funds to finance his Movement for Multiparty Democracy’s ultimately futile 2011 election campaign.
Furthermore, their investigations into the Mphundu Trust Property Development managed by his wife, Thandiwe Banda.
Banda has pleaded not guilty and his trial will start on April 3.
The ex-President told reporters outside the courts that: “It is a good thing that you all (Zambians) are interested.  It will be necessary to keep tabs on this case so that everybody can know the outcome.
“Naturally, it would have been better if I was sitting at home but I am a law-abiding citizen, I have to go through what everyone else goes through once they are charged.”
Government Joint Investigations Team spokesperson Namukolo Kasumpa said Banda had been formally arrested and charged in connection with the procurement of the Nigerian oil, which did not benefit the Zambian government.
“As part of his bond conditions, he has surrendered his passport and two working sureties, as well as K500 000 (US$100 000) in his recognizance.”
One of Banda’s lawyers, Sakwiba Sikota, argued that the charges lacked merit and that the arrest was “mere persecution” by the government.
“They decided to arrest him in respect of the issue of the Nigerian oil. The charges are extremely vague and we will see what kind of witnesses they will bring. The truth is that he did nothing wrong,”
Sakwiba added; “The truth is that he is innocent and there is nothing wrong that he has done. That is the truth which shall come to pass and which we shall all see.
“It will also show you that this was obviously persecution … I think it is going to be very amusing. In South Africa, you had what is called the Rivonia Trial; that is one where Nelson Mandela was charged with treason and so on.”
More charges could, however, be brought against Banda once the joint team of investigators from the Zambia Police Service, Drug Enforcement Commission and the Anti-Corruption Commission adduce documentation tabled before lawmakers when the decision o lift the Former President’s immunity was made.
Another of Banda’s lawyers, Robert Amsterdam, has appealed to SADC leaders to intervene in the matter.
In a letter addressed to all 15 SADC leaders, Amsterdam said: “If President (Michael) Sata (Banda’s successor) wants anyone to believe that his anti-corruption is genuine, then his government would follow procedure and not attempt to illegally jail Rupiah Banda before a fair and impartial hearing before a court of law.”
Amsterdam contends that Zambia’s ruling Patriotic Front party has repeatedly demonstrated that it is willing to break any and all laws to attack its opponents, and that President Sata has installed “a regime of impunity”.
Amsterdam cites a report filed before the SADC Secretariat by the Coalition for the Defence of Democratic Rights on February 15, 2013 which claims Zambia has repeatedly violated Articles 4 and 6 of the SADC Treaty.
“Under the Treaty, member states must not only support ‘human rights, democracy, and the rule of law’, but a specific commitment is made to ‘not discriminate against any person on grounds of … political views’.”
Banda had immunity from prosecution on matters relating to conduct during his term of office under Article 43(3) of the constitution.
Article 43(3) of the constitution states: “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 interests of the State.”
One of the Former President’s sons, Andrew, is already on trial on allegations of corruptly benefitting from contracts signed by the state’s Road Development Agency and Italian firm, Fratelli Locci Construction.
It is alleged that Andrew Banda, when he was First Secretary at Zambia’s Embassy in Italy at the time that his father was President, forced Fratelli Locci MD Antonello Locci to sign a two percent “gratification contract”.
He allegedly told the construction firm boss that he would not profit from his dealings in Zambia if he did not give the two percent kickback because he was the President’s son.
The claim is that Andrew Banda – who also served as Deputy Ambassador to India during his father’s administration – pocketed millions of US dollars as a result.
The Former President’s other son, Henry Banda, is also wanted for questioning in relation to allegations of corruption.
He is believed to be holed up in South Africa – along with his father – and has refused to return to face the authorities in Zambia.
It is also unlikely that the Former President himself will be going to assist in investigations back home any time soon.
Former President Banda is part of the Carter Foundation’s election observer mission to the March 4 Kenyan general election.
The unfolding situation is reminiscent of what happened to
Zambia’s second President, Chiluba, whose immunity was lifted in 2003 by Parliament.
Chiluba’s successor, Levy Mwanawasa, pushed through the lifting of the immunity resulting in his predecessor facing charges of pocketing tens of millions of US dollars in corrupt dealings during his two terms in office.
It was believed that Chiluba handpicked Mwanawasa as his successor thinking that he would shield him from prosecution for alleged corruption.
In a secret ballot, the National Assembly voted to lift Chiluba’s immunity. The Former President was also prosecuted in London, with a UK court finding him guilty of embezzling US$49 million of public funds.
That ruling has never been registered in Zambia and has thus not been executed in that country.


April 2013
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