The day will come when people will be called to account – DPP
By Fanny Kalonda in Livingstone
DIRECTOR of Public Prosecutions Gilbert Phiri says there is need for rules that truncates period within which cases can be heard.
And Phiri explained that sometimes a nolle prosequi is entered to restart the case at an opportune time in future adding that there is rarely malice involved.
Phiri noted that however long it takes for the wheels of justice to grind “the day will come when people will be called to account”.
“You see the wheels of justice grind slowly you know. Cases take too long but they grind anyway. No matter how long it takes, take it from me, the day will come when people will be called to account. I admit, we may not be as fast as we should be because of public expectation, because also we have watched so many movies where a movie that last 90 minutes there’s a trial and conviction but real life doesn’t work that way unfortunately,” Phiri said during the 2023 Zambia Anti-Corruption Conference. “The perception that prosecutions tend to be discontinued because of interference, and cases tend to be discontinued. I understand that sentiment. I understand, it’s a fair observation and I have heard it spoken about. However, one of the things, this is one of the reasons why we want to publicise our prosecution manual so that the public understands how the charging decisions are made. What are the considerations that go for example in entering a nolle prosequi, discontinuing a case? There is no secret to it. Soon you will be seeing it once it is launched on our website. And there will also be hard copies because we believe we have a duty to the public. The public needs to understand these things. They are key stakeholders. However, some of the reasons that inform why cases are discontinued are because maybe there is a settlement agreement with an accused person. So obviously, the case has to be discontinued. In other cases, there is plea bargaining where an accused person decides to plead guilty to a lower charge. So instead of aggravated robbery, for example, the accused person says I can plead to theft for example. So the court of course convicts the person and you save judicial resources, prosecutorial resources. And sometimes you can foresee that you’re not going to secure a conviction because of either technicalities or an issue that was not attended to during investigation, so you can enter a nolle with a view to restarting the case at opportune time in the future. So there are all these considerations which necessitate why a case must be stopped or withdrawn from court and rarely is there malice involved. I’m sure that’s the concern of the public.”
Phiri said law enforcement agencies can do better in cases where they arrest people when investigations are still ongoing.
“… the current cases, and the proclamation by the President [that] don’t arrest before you conclude investigations and cases are dragging, I agree. We can’t run away from that fact. People have been arrested but not arraigned in court and the appearance that it gives is as though you are still investigating the case and the only response I can give is that we can do better. What we do at the NPA (National Prosecution Authority) is we engage with law enforcement – police, DEC (Drug Enforcement Commission). We have a situation where there’s a back and forth, you have to cover all the tracks before we can make the decision to take the matter to court. So it’s a work in progress. This continuous liaison sometimes when you see someone is arrested and they’re not in court is because there’s something going on there. Maybe the prosecutor needs to be convinced that you’ve covered all the bases that would be one of the reasons for the delays. But I’ll not discount the fact that sometimes these arrests could have maybe waited a bit,” he said. “We are collaborating very well, we have the interagency taskforce chaired by the DPP and all law enforcement agencies including registries like lands, PACRA and recent organisations that joined with the Security Exchange Commission. So altogether we have 21 agencies working together under a framework. Though it is primed at asset recovery, but we are coordinating. So there are certain cases for example of course, I can’t comment on the merits of the case which is before court but I’ll use it for illustrative purposes, the goldgate scandal. So you have had the immigration looking at one facet, Anti-Corruption looking at the facet of corruption, Drug Enforcement Commission as the anchor. We have the police working together with the prosecutors and addressing all aspects of the case. So on numerous other cases we are working together. In short we are improving our collaboration and will make it better going forward.”
Phiri called for amending the Constitution in that regard.
“And then when I made reference to plea bargain, it was in the larger scheme of how a case can end and a case can end because we actually even have an Act. The plea negotiation and agreement Act and under that Act the prosecutor or even an accused person can initiate a bargain for reduction. So it’s part of the law. So it’s one way of ending a matter. So it’s legal,” he said. “I think that we need to educate the public more to understand that there are avenues in the law that can be used instead of going towards prosecution but to halt it. These are provided by the law. As to whether those are moral or not is another question but as to whether they are legal indeed because the law provides for them.”
Phiri stressed the need to amend the Constitution, by amending the definition of public officers to include DPP, Secretary to Cabinet, all permanent secretaries “so that if we dip our fingers in the cookie jar we can be prosecuted”.
“So someone gets drunk and insults someone in the market or kicks their merchandise and they are taken to the police station and a trial takes three years, in those type of instances a diversion programme would work best instead of we populate the prison population and spend prosecutorial resources to prosecute an ill-mannered person without manners. So when we institute diversion, we are going to reduce prison population but also reduce the workload for the judges and conserve resources, prosecutorial resources,” he said. “This is why you have settlement agreements, plea bargain. It’s to go towards that end. It is not everything that you should be prosecuting. Is the law really the problem? Not really. We have the legal infrastructure. Yes there are ways we can enhance and strengthen. One of the biggest problems we have is with the definition of a public officer in the Constitution, which definition does not encompass controlling officers and even I as a constitutional officeholder including the Attorney General, the Solicitor General and the others do not fall under the definition of public officer. Now the problem is in the anti-corruption Act most of those offences that have to deal with abuse they are against public officers. So now when you remove in fact, the 2016 amendments to the Constitution created three classes; constitutional office orders, state officers and then public officers but the most important officers of the state who wield authority are not captioned under public officer making a nonsense of the anti corruption Act. So when I was Anti-Corruption Commission we could not use those provisions against certain public officers. Those provisions, I think, it’s part three that has jaws we could not use them because the reference was public officer and the permanent secretary according to the Constitution is not a public office. So we have those weaknesses. So I remember we used to latch on to one provision which I think the drafters must have been tired, so instead of saying public officer they said any person, so we would go for that one which says any person. We say we use this one but I mean really the law must be clear. What is the remedy? The remedy will need will mean amending the Constitution. Amending the definition of public officers to include DPP, Secretary to Cabinet, all permanent secretaries so that if we dip our fingers in the cookie jar we can be prosecuted.”
Phiri said the law is not really the problem. “Yes there are deficiencies. You know there is this issue of human behaviour that you can’t really regulate. You can’t control it you know. There’s just, it’s just the nature of the beast. Now why are we failing to curb corruption? I think we are doing our best. I think the Anti-Corruption Commission is working. It’s doing its best. Of course, we have resource control constraints. We are understaffed and all these things but the will and the desire is there and the aspect of low convictions I agree. I mean we can’t run away from the fact. I’ll tell you one of the problems and which is a problem that we are hoping to rectify,” he said.
Phiri noted that there was a problem where people accused of corruption delay the trial by raising preliminary issues because they have the money.
“You arraign people for corruption before the courts they will hire 10 lawyers because obviously he has money. He wasn’t born with this money, he stole the money. So he brings 10 lawyers against a single prosecutor and all these 10 lawyers each will raise a preliminary issue. By the time the court…I was in a meeting in some place where we heard the story of Zimbabwe where an accused person took four years raising preliminary issues. Four years is battery of lawyers. He had the money, he had the best lawyers. By the time the trial starts, the judge is either dead, promoted or transferred. This is a problem that we have. President Frederick Chiluba, his case took eight years. Eight solid years he had a good legal team. They dragged the case or the case just dragged. After eight years, acquitted. Katele Kalumba how many years? 20! General [Sande] Kayumba from 2001, the case concluded, the judgement was delivered January 2023. Guess the verdict? Acquitted, give him back his property. Now the problem is this, we need rules of court that truncates the time period within which these cases can be heard. And the power should be in the judge. You come you’re saying you have an adjournment, sorry you can’t because regulation so so so says you can’t. So we are proceeding today. Or you’re not proceeding, your case has closed,” suggested Phiri. “Now of course there are human rights dimensions to this aspect. So that explains why we have low convictions, is, because trials take too long and we do not have rules [to] truncate but I know that the situation may be about to change.”
And Dr Obrien Kaaba, from the academia, said people should not be celebrating recovered assets that were stole because they already belong to the people.
“Our institutions should be firstly independent. Go after the corrupt without fear or favour whether past corruption or present corruption. We need to put in place good laws and implement them effectively. We need to prosecute these cases aggressively and as the Swedish Ambassador stated, although it is good to recover assets but if we are just ending there basically we are rewarding corruption because these are public resources which were gotten. So we are not punishing the people, so we also need to go aggressively in prosecuting and convicting these people,” said Dr Kaaba. “So we shouldn’t even be celebrating that we have recovered something because this is already something which belong to the people. So our celebration should be in the fact that we have nailed someone who had stolen from the people and the person is put behind bars.”
Alliance for Community Action programmes manager Jimmy Maliseni said there is need for people to show the benefit sides of democracy, integrity and ethical conduct.
“I don’t believe that we are inherently corrupt because to say that would mean that we are probably born corrupt. You cannot have 20 plus, one million people born inherently corrupt. But I think that like the DPP said we find ourselves in cultural practices that we then inherit as our own and that perpetuation of celebrating corruption for example, not being very critical of how people accumulate wealth, all work together to defeat the ends of justice but also to defeat our aspirations to push against this particular culture,” said Maliseni. “We need to begin to show the benefits, the dividends or the positive sides of democracy, of integrity, of ethical conduct. Either… we have seen the benefits of corruption and I have always argued that the corrupt in this country have found each other and they call that connections or favour stressed in so many ways. But we that believe in ethics, believe in ethical conduct, and integrity usually only often meet in settings like this one. When we leave here, DPP goes his way, you go yours, I go my way. When the corrupt leave a meeting like this one, they are exchanging business cards. They are influencing what the integrity committees, our procurement committees, are going to decide in terms of public procurement and all of that. So essentially changing this culture partly begins with us finding each other in these difficult spaces where corruption actually does take place. And that is where we as civil society must come in to begin to educate the public to understand the link between the level of quality of services they’re able to access and the way that we’re managing our public resources.- The Mast