Amb. Emmanuel Mwamba
Economic and Financial Crimes Court Illegal
Who will protect citizens’s rights when Judiciary joins a Govt crusade?
When Archbishop Emeritus Telesphore Mpundu advised the Patriotic Front (PF) to stop being crybabies but instead go out and test the truth of the New Dawn government’s commitment to the rule of law, Bowman Lusambo must have taken that admonition to heart.
That should be the reason he has petitioned the Constitutional Court to consider the constitutionality of administrative creation of the fast track Financial Crimes Court, and the ease with which citizens are being deprived of property on mere suspicion, not conviction, that their assets could be proceeds of crime.
Whereas the odds may be insurmountably stacked against Bowman Lusambo, it is important that the Constitutional Court considers his petition: that is the path of constitutional development and has import for a future of enhanced protection of citizens’ rights.
And while the Constitutional Court deals with his petition, the Zambian public will be well advised not to dismiss this case as being brought by a PF politician disgruntled by loss of his parliamentary seat through a judicial process.
Rather, ordinary citizens must actually take notice of, consider for themselves and actually debate the circumstances of Lusambo’s petition, and implications of the key issues he has raised on citizens’ enjoyment of the range of rights involved in this case.
There are three major issues that Lusambo has raised in his petition, which the Court, and Zambians should look at objectively.
The first one is a concern about the manner in which the Chief Justice, by an administrative arrangement, announced and facilitated the setting up of the Economic and Financial Crimes Court at both the Subordinate Court and the High Court.
In his Petition filed on 31 January, 2023, Lusambo raises two points regarding the establishment of the Economic and Financial Crimes courts. The first one is that the instrument that set it up in the High Court did not state the composition of the Court, and raised questions whether its creation was in line with national values.
The second issue Lusambo raises for the Constitutional Court to consider is that the maters that took him to court were not financial crimes which had suddenly been thrust to be tried before a court whose jurisdiction remained unknown.
Related to this is the current ease with which Lusambo had his property restricted by law enforcement agencies, for being “reasonably suspected to be proceeds of crime”.
But perhaps the issue of greater significance relates to the developments involving President Hakainde Hichilema and Chief Justice Mumba Malila, and the content of their respective statements on this matter, which set the stage for establishment of the Economic and Financial Crimes Court.
On 10 September, 2021, President Hichilema, as Head of the Executive, during the opening of the First Session of the 13th National Assembly, in relation to this subject:
“Further, we will introduce specialised fast-track stolen assets recovery mechanisms and courts for corruption and economic crimes”.
A few months down the line, Chief Justice Malila, in a speech during the Ceremonial Opening of the High Court criminal sessions for 2022, said:
“Patriotism abhors impunity. Criminal prosecutions must be instituted against alleged wrongdoers who should be afforded a fair opportunity to answer to allegations against then. Crimes of economic nature, especially, deserve expeditious disposal because of their effect on the economy of the country. In this connection, I am pleased to announce that administratively as Economic and Frinancial Crimes Court at the level of the Subordinate Court will soon be operational. It is designed to offer specialised, fast-track court services, and ensure that, all due process requirements being observed, illicitly obtained wealth is speedily recovered and restored to the public fiscus so as to enable the government channel the resources to build that essential road, pay that old village grandmother the social cash transfer money she so badly needs, repair that collapsed roof of the old school; and stock that public hospital with essential drugs”.
Was the Chief Justice’s speech merely coincidence of objectives or was it a signal that the Judiciary had “adopted” the agenda of the Executive?
The Chief Justice moved swiftly afterwards and through Statutory Instrument number 5 of 2022, the administrative arrangement for setting up the Economic and Financial Crimes Court at the Subordinate Court.
And suddenly, matters, including that involving Lusambo, that had been commenced in the Principal Registry of the High Court were administratively transferred to the new division.
Lusambo views this development as being aimed solely at achieving the agenda of the Executive through the Judiciary, through some novel actions.
“That to my surprise the Executive began processes not known before of getting seizure notices and getting property from citizens, such as myself, and my house was seized and, to defeat any action of mine to fight such injustice, they took the matter from the Subordinate Court to the High Court under the division of the Economic and Financial Crimes Court.”
There some non-legal points that may be raised about the significance of the above developments that preceded the setting up of the Economic and Financial Crimes Court.
The President, as a politician, was essentially making a political statement with his desire to bring” fast-track stolen asset recovery mechanisms and courts for corruption and economic crimes”. It stems from desperation to find evidence of his campaign accusations of widespread corruption by the previous government.
‘Fast-track stolen assets recovery mechanisms’ also carried the strong assumption of guaranteed convictions, which may be excused only because it was uttered by a politician heading the government.
This aspect should be another reminder to Zambians of the reasons why democratic wisdom argues for a very strong and independent judiciary.
Hence the alarm that Lusambo expresses when the Chief Justice appeared to have willingly jumped behind the President in this crusade.
With a speech that had phrases such as “patriotism abhors impunity”, Chief Justice Malila could inhabit a new category for judges – Emotive Activist.
There is everything overly emotive about the rendering in the Chief Justice’s speech of what the government is supposed to do with resources.
Lusambo’s disquiet stems from what appears to be Chief Justice Malila’s obsession with recovery of funds alleged to be stolen, rather than with delivery of justice, and due process is slotted into the picture simply for political correctness.
It is Lusambo’s contention that the President’s continuous reference to Chief Justice Malila as “out Chief Justice” is clearly aimed at pushing a particular agenda to the disadvantage of himself.
In his Petition, Lusambo has also taken issue with the placing of the Judicial Service Commission under the office of the President, especially in the light of events that followed.
After new members were brought into the Judicial Service Commission, and its Chairperson, Justice Matthew Ngulube replaced with Mwikisa Mukande, on Friday, 20 May, 2022 cadres of the the ruling United Party for National Development (UPND) marched to the Lusaka Subordinate Court demanding for the overhaul of the judiciary to weed out judicial officers they said were working against the new government.
Shortly afterwards, the Judicial Service Commission transferred 10 magistrates from Lusaka, but insisted that its decision was not influenced by politics. Lusambo insists this contravened some provisions of the Constitution and was therefore illegal.
Lusambo has also submitted in his petition that the decision by the Chief Justice to set up the economic and Financial Crimes Court administratively at the Subordinate Court is in breach of Article 120 (1) – (4) of the Constitution of Zambia.
Hence Lusambo is seeking from the Constitutional Court an order and declaration that the setting up of the Economic and Financial Crimes Court administratively at the subordinate court level is a breach of Article 120 (3)(c) of the Constitution and is therefore unconstitutional and illegal.
He is also seeking an order and declaration that the transferring of 10 magistrates by the Judicial Service Commission using section 6(e) of the Judicial Service Commission Act contravenes Article 122 of the Constitution of Zambia Act number 2 of 2016.
But whether or not Lusambo gets the reliefs he is seeking from the Constitutional Court, the issues he has raised on the conduct of the President and the Chief Justice preceding the establishment of the economic and Financial Crimes Court are important. They have an element of protection of citizens’s rights against a powerful crusading Executive, especially when the Judiciary seems to be fully on board the Executive steamroller.