LUSAKA magistrate Nsunge Chanda says the disclosure of earnings of former Zambia Air Force commander Lieutenant General Eric Chimese cannot threaten state security in any way therefore it is wrong to classify his emoluments as confidential.
Magistrate Chanda has however directed that she will hear the evidence of Colonel Bernard Chileshe, a director in charge of salaries and pension at ZAF under finance department, in chambers.
This is in a matter where Lt Gen Chimese is facing charges of abuse of authority and is jointly charged with Chita Lodge proprietor James Chungu for money laundering.
Last month, Lt Gen Chimese’s defence lawyer Kelvin Fube Bwalya prevented Col Chileshe from disclosing the amount of money that his client accrued from the time he assumed office as ZAF Commander until he was fired.
Bwalya said salaries, pension benefits and emoluments relating to service chiefs could not be disclosed without authority from the President as it was considered classified information.
He said disclosing the same would amount to an illegality.
This was after Col Chileshe told magistrate Chanda that in May 2019, after officers from the Drug Enforcement Commission visited ZAF, he was assigned by the command to compute personal emoluments and benefits accrued to Lt Gen Chimese for the period he served as commander from 2011 to 2018.
“I got the information from the pension fund relating to payments made to NAPSA, gratuity, leave days, three months salary notice and repatriation for General Chimese. For the salaries, I got the information from the payroll for the period 2011 to 2018 when he retired,” Col Chileshe said.
He further explained that he also collected information relating to Lt Gen Chimese’s foreign travel allowances and compiled the said information for the DEC.
Col Chileshe said Lt Gen Chimese’s emoluments were approximately K11.7 million but before he could disclose further information relating to what the accused accrued from pension benefits, salaries and travel allowances between 2011 to 2018, Bwalya curtailed his testimony arguing the evidence bordered on State security.
Bwalya said the law relating to classified information was very clear on communication of protected information by any person apart from an authorised person.
He said there must be a specific waiver by way of authority.
“The salary, allowances and benefits of the ZAF commander are well known as classified information and disclosure of classified information without authority from the President may land the witness and others who give such information without authority into trouble,” Bwalya said.
“A person who gives such information without a waiver will commit an offence and may be liable to a conviction of a term not less than 15 years and not exceeding 25 years. My instructions are to inform this court that a commander’s earnings are classified as secret and confidential.”
He said the conditions of service for all service chiefs were given directly to them by the Secretary to the Cabinet in the name of the President and that conditions of service for service chiefs could not be discussed without authorisation from the Commander-In-Chief of the Armed Forces.
Bwalya cautioned Col Chileshe against being found on the wrong side of the law, and restrained him from further disclosing what Lt Gen Chimese had obtained during the period he served as ZAF commander until he was retired in national interest, without being permitted by President Edgar Lungu.
He said senior officers such as Col Chileshe and other government officials were under oath not to disclose classified information even after 25 years of leaving office.
“The rationale is found in the preamble of the state security to protect the state and its officers. In the absence of the colonel producing a letter from the Commander-In-Chief of the armed forces that he has been authorised to disclose classified information, such borders on illegality,” Bwalya submitted. “Even us as the defence we may need to get instructions from accused number one (Chimese) to cross-examine the colonel which will border in us receiving classified information which again may be illegal. This witness is incompetent to go beyond what he has told the court without committing an offence.”
In his response, Chief State Advocate at National Prosecutions Authority Gamariel Zimba said the defence had alleged that the testimony by Col Chileshe was classified information and the State could only respond if the defence presents documentation to the cases they cited and those relating to classified information.
At this point, Bwalya requested that the parties and the court resolve the matter in Chambers before the court could render its ruling.
Zimba submitted that Lt Gen Chimese’s emoluments do not fall under confidential information which could threaten State security.
He argued that section four of the State Security Act which the defence relied on in their objection was cited out of context.
“ Accused number one’s personal emoluments cannot be said to be a code, a password, personal sketch or other documents for use at a protected place,” Zimba said.
He submitted that in line with the Presidential emoluments Act, the Head of State’s emoluments were in public domain.
“How then would we argue that the personal emoluments of another public officer who is subordinate to the Commander-in-chief of the armed forces becomes classified information?” Zimba asked.
He said Lt Gen Chimese’s personal emoluments were not closer to what the State Security Act seeks to protect.
But in her ruling, magistrate Chanda said a ZAF commander’s emoluments were partially classified information under the State Security Act and that exposing the same would not compromise State Security.
She said that Lt Gen Chimese was a public servant paid by a department under the Ministry of Finance and in the interest of justice, it was wrong to classify his earnings as confidential information.
“This is not the first time an Air Force commander is being tried and their emoluments disclosed. There is no suggestion under the State Security Act that emoluments for an Air Force commander was classified information,” magistrate Chanda said. “I have carefully considered the law that can help me, the authorities cited by the defence falls off. I find that the general’s emoluments are not classified matters as the legislator would have stated it clearly.”
Magistrate Chanda said that she would proceed to hear the evidence of Col Chileshe in chambers to enable him to adduce all the evidence needed in the matter.
She further directed that the State would be prejudiced if the information was disclosed.
Trial continues on November 6, 2020.