By Peter Sinkamba
LUSAMBO ARREST BY ACC FOR ELECTORAL OFFENCES: A PEEP INTO JUSTICE DELIVERED IN REVERSE MODE
The Anti- Corruption Commission has arrested and charged former Kabushi Constituency MP and aspiring candidate, Bowman Lusambo, for electoral corruption.
Lusambo has been arrested and charged with four (4) counts of Bribery contrary to Section 81 of the Electoral Process Act No. 35 of 2016. It is alleged that the offences were committed between 1st April 2021 and 14th August 2021 in Ndola during the August 2021 General Elections campaign period.
The arrest follows the recent ruling of the Constitutional Court which nullified the election of Lusambo as Member of Parliament for Kabushi Constituency for engaging in electoral corruption. Resulting from its decision, the Constitutional Court issued a Report which detailed the electoral malpractices that were perpetrated by Mr. Lusambo. It is alleged that on the strength of this Report that the Anti-Corruption Commission instituted investigations into the alleged malpractices and corruption and proceeded to record a warn and caution statement from him, and has subsequently been arrested.
A number of mind bogling key questions arise from this new development of justice delivered in reverse mode.
The first question concerns the so called Double Jeopardy Principle which is derived from the Fifth Amendment to the US Constitution. This principle has been adopted in the Constitution of Zambia 1996, by way of Article 18(5), and prohibits anyone from being prosecuted twice for substantially the same crime.
For avoidance of doubt, the relevant part of Article 18 (5) states as follows:
“No person who shows that he has been tried by a competent court for a criminal offence and
either convicted or acquitted shall again be tried for that offence or for any other criminal offence of which he could have been convicted at the trial for that offence, except upon the order of a superior court in the course of appeal or review proceedings relating to the conviction or acquittal.”
In this case, the ACC states in its press statement that “on the strength of this Report (Concourt report) the Anti-Corruption Commission instituted investigations into the alleged malpractices and corruption…” In other words, there was no order of the Concourt but merely a report comprising opinions.
In this regard, several legal questions arise from the Lusambo case. First, was Lusambo tried for breach of the Electoral Code of Conduct? If the answer is yes, the next question is: is the Electoral Code of Conduct a set of laws that comprises criminal offences? If the answer is yes, then the next question arises: did the High Court and Concourt find Lusambo guilty of the alleged alleged Electoral Code of Conduct crimes? If the answer is yes, then won’t the anticipated trial, in the subordinate court, for breach of the Electoral Code of Conduct, be in breach of Article 18(5)?
The second question is: is the report of the Concourt alluded to by the ACC the same as the court order contemplated in Article 18(5)?
The third question is: suppose in the subordinate court, Lusambo is acquitted of all alleged crimes, what happens to the Kabushi parliamentary seat which was rendered vacant for the alleged crimes?
The fourth question is: suppose, after acquittal in the subordinate court, the State appeals to High Court which earlier found him guilty on the same allegations, will justice be genuinely delivered to Lusambo this time around?