PERSECUTION VERSUS PROSECUTION: A LOOK AT THE FIGHT AGAINST CORRUPTION IN ZAMBIA
By Sean Tembo – PeP President
1. I have said it before on numerous occasions, and l will say it again that l will support any genuine fight against any corruption that might have been perpetrated by the previous Patriotic Front regime and it’s members. If the previous regime stole from the Zambian people, then that money and property needs to be recovered and given back to the State. But that process needs to be done within the confines of the rule of law and devoid of vengeance and retribution. There are three things which l have observed in this fight against corruption which l wish to talk about today.
2. Firstly, l have noted a high appetite by law enforcement agencies being ZP, ACC and DEC to exaggerate the value of property that they allege to be proceeds of crime, as well the use of such exaggerated values to compare to an accused person’s past income and subsequently derive a false conclusion that the accused person’s past income is far lower than the value of property which they acquired and therefore such property is suspected proceeds of crime and must therefore be forfeited to the State and the accused must be convicted. Such line of reasoning is patently flawed and mischievous and it is a pity that our law enforcement agencies have adopted it and our Magistrates Court has embrassed it, to the extent that there was even a conviction of two people a few weeks ago based on this flawed reasoning.
3. You see, comparing a person’s past income to the current value of property that they accumulated is like comparing tomatoes to oranges. As an illustration, if my salary 13 years ago in 2010 was K5,000 and after saving for a year l buy a plot in Ibex for K30,000 and because of an appreciation of property values in Lusaka, that property is now worth K2 Millon, then it is mischievous for law enforcement agencies and the Courts to compare my then salary of K5,000 to the current value of my property of K2 Millon and consequently draw a false conclusion that l could not have legitimately acquired such a property based on my salary and income at the time. The correct comparison to make is my salary of K5,000 against the K30,000 price at which l bought the property at that particular time in 2010. It is worth noting that a person has got no control over the appreciation of property values, and must not be convicted on that basis.
4. It is further worth noting that in instances were a person developed a property by themselves, it is literally impossible to accurately determine how much they spent unless such a person was meticulous in keeping all material, labor and transportation receipts and invoices at the time. It is wrong and grossly misleading for the Government Valuation Department (GVD) to draw up a Bill of Quantities (BOQ) and attempt to price it with current prices, as a basis for determining the value of a particular property. Even if GVD used prices that they might argue existed in say 2010, such prices would not be reliable because hardware is not like groceries and price differentials are very high. Someone will pay K1,600 for a 20 liter bucket of Charcoal Grey paint at East Park Mall whereas another person will pay K200 for the same paint at Westgate Mall in town. One person will pay K3,000 to an electrician to fit a geyser, while another person will pay K250 for the same job. It all depends on how street smart one is. Such variations in pricing are too wide for law enforcement agencies to build a legitimate case based on estimates and consequently send a person to prison and also forfeit their property.
5. The second issue l disagree with when it comes to the manner that our law enforcement agencies have been prosecuting corruption cases and the way the Courts have been convicting accused persons, is the sole use of bank accounts to determine a person’s past income. It is worth noting that Zambia is not a first world country and that more than half of our economic output (GDP) is in the informal sector made up of economic entities (natural and unnatural persons) that are not registered with entities like PACRA, ZRA, banks etcetera. What this means is that it is perfectly reasonable for a person to accumulate vast amounts of wealth without having to utilize a bank account for their business transactions. Does that make such a person a criminal? The answer is a definite NO. Therefore, it is patently flawed for law enforcement agencies to submit to Court that since only K60,000 reflected as income in an accused person’s bank account over the years 2015 to 2020, and the person accumulated property worth K150,000 over the same period, then the said property is proceeds of crime and must be forfeited to the State and the person must be sent to prison. It is also wrong for the Magistrates Court to convict people based on such frivolous evidence.
6. The third issue is the use of Zambia Revenue Authority (ZRA) income tax returns by law enforcement agencies and the Courts, to seek to draw a false conclusion that all income must go through an income tax return and that if it is not there then it is proceeds of crime. That is patently false and misleading because there are plenty of types of income which are not taxable on an income tax return, including but not limited to capital gains on real estate. So the tendering of documents in Court related to a person’s ZRA income tax returns as evidence of how much income a person earned over a specific period of time, is mischievous at best and frivolous at worst.
7. The only question that remains to be answered is whether our law enforcement agencies and Magistrates Court are not adequately financially literate to the extent that they sincerely tender that frivolous evidence in Court or they know perfectly well that their evidence is frivolous but still tender it anyway because they know that the presiding Judicial Officer is compromised and will rule in their favor despite objections from the defense team? Look, if we are going to send some of our citizens to prison and confiscate their property, let us do so on the basis of a fair, transparent and credible legal process and not based on an appetite for vengeance by a higher authority that appoints both law enforcement officers and Judicial Officers who preside on cases.
8. We all know that the PF really misbehaved when they were in power, and there will always be an appetite for vengeance by the current regime. But will bending the law and convicting innocent people help us to build a better Zambia? My advice to the UPND administration is that if anyone affiliated to the PF regime committed an offense or plundered national resources, then let them face the full wrath of the law, but do not bend the law to convict people whom you have no evidence against. By so doing, you are destroying our country and breeding unnecessary animosity among our people. To members of the former PF regime who are being persecuted for nothing, my advice is that you should consider hiring a financial expert witness for some of your frivolous corruption cases. That way, even if you might be convicted by a Compromised Magistrate, you’ll stand a better chance of being vindicated on appeal. Whatever the case, if we are going to build this country that we call our home, then justice and not vengeance, must be served.
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SET 06.07.2023