HIGH COURT REFUSES TO REMOVE FORMER ACC BOSS FROM DR. CHITALU CHILUFYA ‘S LEGAL SUIT!
By Mwaka Ndawa
HIGH Court judge Pixie Yangailo has declined to remove former Anti-Corruption Commission acting director general Rosemary Khuzwayo from the matter in which former minister of health Dr Chitalu Chilufya sued her and the Anti-Corruption Commission (ACC).
Dr Chilufya is demanding US $50.1 million as damages for libel over his malicious prosecution on corruption related charges in 2020.
She ruled that Section 4(1) and 17(1) of the Anti-Corruption Act does not give officers of the Commission blanket immunity from prosecution for actions taken in the exercise of their functions under the Act.
“It is clear from the said provision that in instances where the named officers have exercised their functions in bad faith. The said officers would be amenable to civil or criminal prosecution,” judge Yangailo said.
Dr Chilufya is seeking damages for malicious prosecution, libel and defamation, intimidation as well as exemplary and aggravated damages to be assessed by the court.
In his statement of claim, Dr Chilufya said between September and August 2020, he was prosecuted for possessing property suspected to be proceeds of crime involving more than $200,000 to purchase shares in Samfya Marines and Tourism Services, Spark Guest House, now Henry Courtyard, and a boat, which proceedings he attended at a great cost.
He submitted that according to an audio recording availed to him by ACC employees and made public, Khuzwayo was heard saying that she did not care whether he was innocent or not but that she just wanted him to be prosecuted.
“Khuzwayo in ACC institution abused her authority of office by sanctioning a malicious prosecution despite all the advice given to her that the plaintiff was innocent,” said Dr Chilufya.
Khuzwayo had requested to be disjoined from the matter on reasons that the role she played in the investigations touching on Dr Chilufya was done in good faith and in the exercise of her duty under the ACC Act.
She said there was a probable and reasonable cause or grounds upon which Dr Chilufya was arrested, charged and prosecuted for possessing property suspected to be proceeds of crime.
In her defence, Khuzwayo denied making, publishing or authorising the publication of any audio recordings about the deliberations with ACC officers.
“The second defendant at all times performed her functions diligently, professionally and legally and shall at trial plead the statutory defences, immunities and objections on the use of confidential information relating to the first defendant (ACC) and its functions,” Khuzwayo stated. “The second defendant as acting director general of the ACC executed her duties professionally and according to the law.”
She said Dr Chilufya was not entitled to the $50,100,000 or any other reliefs whatsoever.
In her ruling dated May 27, judge Yangailo said Dr Chilufya’s statement of claim had raised allegations against Khuzwayo that suggested that her actions against him as acting director general of the ACC were done in bad faith.
“The fact that it is alleged that Kuzhwayo exercised her functions in bad faith entails that she should be present in this suit to ensure that all matters alleged against her and in contention are resolved at once,” judge Yangailo said. “Kuzhwayo cannot be disjoined from these proceedings as the allegations raised against her relate to actions taken in bad faith in her capacity as acting Director General, which actions Dr Chilufya will be required to prove with cogent evidence at trial. Kuzhwayo will equally have an opportunity to resist the said alleged actions against her at the same forum. Accordingly, her application to be disjoined from these proceedings is dismissed.”
She further ordered that the titles and phrase “honourable Dr” prefixing Dr Chilufya’s name be struck out and the documents be amended.