LUSAKA lawyer Patrick Mvunga yesterday argued that Section 37 of the Anti-Corruption Commission (ACC) Act should be removed because it gives unrestrained power to the court to convict an accused person who has chosen to remain silent in a corruption case.
Maintaining his position that the section was unconstitutional, Professor Mvunga said the decision to amend it was long overdue and the country must seek solace in the Penal Code which had not been severed from the statutes.
In a statement released in Lusaka yesterday, Prof Mvunga, who chaired the 1990 constitutional review commission, said the wording in the Act made the accused person guilty unless he gave a satisfactory explanation to the court.
He said the law was against the general values of delivering fair justice where people were found guilty for them to explain their side of the story.
Prof Mvunga said he objected to the provision because it required the accused to give an explanation on oath and if the accused person remained silent, he would have failed to give the satisfactory explanation.
“In the instance of keeping silent, the effect of the provision is for the court to find the person guilty. This is contrary to Article (18) 7 of the Constitution which states that a person shall not be compelled to give evidence at his trial,” he said.
Prof Mvunga contested that his decision was consistent with the ruling by High Court Judge Dennis Chirwa in a corruption case in 1984 in which he ruled that a person could not be compelled to give evidence on oath if he elected to make an unsworn statement.
Judge Chirwa ruled that an accused person had the choice of remaining silent or saying something and if he chose to say something, he did so on oath or say something by way of an unsworn statement.
[pullquote]“In the instance of keeping silent, the effect of the provision is for the court to find the person guilty. This is contrary to Article (18) 7 of the Constitution which states that a person shall not be compelled to give evidence at his trial,” he said.[/pullquote]
He said to argue its case, the State had stated that article 53 (1) which was now ACC Act (37) was in direct conflict with the Constitution.
Prof Mvunga said Judge Chirwa described the Act as null and void and should be severed from the Act.
This is in a matter involving Thomas Mumba versus the People in the 1984 case when the judge ruled that an accused person should not be compelled to give evidence on oath if he elects to make an unsworn statement.
“This is why I take the position that Section 99 of the Penal Code, Cap 87 on the offence of abuse of authority of office as a better formulation and that in fact, this offence has not been abolished,” Prof Mvunga said.
The Government’s position is that the State should not find innocent people guilty but the prosecution should provide evidence indicating that the accused is guilty as provided for in the Penal Code section 99.
[Times of Zambia]
Whats so difficult to explain ones wealth if acquried legitimately ! The guilt are afraid !
Whats so difficult to explain ones wealth if acquried legitimately ! The guilty are afraid !
professor judge, u were there in the 90’s why did u advocate for amendment all along? why now. its like u are just a boot licker for Rupiah. Rabishhhhh.
Instead of wasting one’s time listening to cadres of low comprehension with untested legal credentials like Wynter Kabimba and Mmembe, i choose to vest my time on professor Mvunga a Harvard educated Attorney and served Prosecutor General in Zambia. Ignore chaps who earned their undergraduate degrees and ZAILE certificates through plagiarism. Look at Kabimba, the chap has never carried a single day in any court of justice other than barking.
Prof please Bola panshi. Let me ask you this question-If say a mayor awards himself 100 residential plots by using his position and later sells these plots which he did even pay for, what offence is going to be charged with? 2 Why dont you also ask your tribes man to remove the Public Order Act which is being abused by the MMD against the opposition. And what about the Death Penalty? Prof just as politics all human beings are by nature lawyers and they can tell right from wrong.And the presiding officer cannot convict an accusedif he is not satisfied by the evidence before him unless of course there is pressure from the top.
Pro is looking like an old testament false prophet!
I we ka Mvunga…and you call yourself “professor” …so this is what money can do…people do everything to protect themselves.Now we can see the real wolfs. Don’t even call yourself professor because you are a shame to the intellectuals. What a shame!!!!!!
LT, why only publishing this now? it was said a week ago. This urgument was countered by the POST and Dr. Chongwe. Mvunga has failed to respond. He has conceeded defeat on his fallacy! The Post editorial read’ Has Mvunga joined liers”. The post further published a follow up article from Zambia’s uncompromised legal brains like Dr. Chongwe and the UNZA lecturer on Constitutional law. All found the Prof caught up in a web of lies in his endervour to defend RB his tribe and kins men. Shame!
Where was this man all along to come and see its unconstitutionality now?
#5 Deja Vu, you may find some guidance by reading the case of Gladys Nyirongo.
#8 Red Card, the Post is not a legal authority but Prof Mvunga is. The editorial that you have quoted “The Post editorial read’ Has Mvunga joined liers” ” shows that the Post is a biased commentator and this is a “secret” which is in the public domain. The other lawyers that you have quoted are also (supposed to be) legal authorities but one has to take their opinion with a pinch of salt. They lose their independence of legal opinion once they associate themselves with a Post editorial because we know that the paper does not promote anyone with views contrary to their own.
This is the problem with these old men, their brains stop functioning at this age. Sata, RB no difference with this Mvunga chap the brain cells are slowly mal-functioning. Please set a proper foundation for the young generation to inherit
Am glad i never studied law.
Ba prof, are you waking up from your sleep or you have received some brown envelope as well from somewhere(i don’t mean from RB and his minions)?Because all that time amendments were being made, you were silent,since 1980s if am not mistaken,or that is when you were doing your proffesor-fimo-fimo.Careful your friends licence in london has been revoked you might be the next one.
is ist LIARS or LAWYERS?
in zambia you are innocent untill proven guilty. if im accused of stealing its up to the court to find me with a case to answer. why should one be arrested on hearsay without being given chance to be heard. Indeed section 37 is a bad law thanks its being removed. mmembe in an armchair lawyer never won a case just like kabimba and chongwe. ask gladys nyirongo, general kayumba general funjika general sichone dr kashiwa bulaya samuel musonda they were convicted without using this slavery law
general funjika did time in jail for corruption without using section 37, dr kashiwa bulaya is still in jail though I hear he stays at uth, generals kayumba sichone musengule former zanaco boss samuel musonda are all convicts not by way of section 37 but normal criminal procedure code
Not sure why low calibre individuals like veteran on # 4 would think Lawyers like Mvunga have unmatched wisdom. It’s only in Zambia and particulary during Mwanawasa’s term that we started seeing Lawyers taking the centre stage. My friend in India, Lawyers walk on foot and sit under the sun near the court premises looking for Clients. I stand by it, we all are Lawyers, and shall not take any lies from I.DIOT’s like Mvunga. Shut up you old rug!!! Now is our time.
#15 ALEJANDRO-What a sign of liar you are. Under Zambian law you are arrested upon being a suspect for any offence not just the so called art 37.You will be questioned and depending on the out come you will be taken to court and again depending on evidence you will either be release or jailed. Just give us the name of a person who has been misjudged by art 37.Infact your MMD has failed to remove the PUBLIC ORDER ACT, THEFT OF MOTOR VEHICLE from our laws. Why? Because they want to use them for dealing with their opponents
Professor, how can one amass wealth and then fail 2 explain or account for how he came 2 be in possession of the wealth?
The reasoning given by Mvunga is very shallow and does not hold water. I cant fail 2 explain my wealth if it is all legitimate and legal.Dont legalise corruption please
#17 mukabe come 2011 if you are in USA then you not a lawyer but kaboyi, if you in zed yes you can claim to be a lawyer I wont dispute. USA you lie
#16ALEJANDRO – Are on the MOON? These fellows were charged with ABUSE OF OFFICE.
we are in most corrupt time in zambia where all those we respect for their wisdom,education and honesty goes loose. Becuase someone with corrupt mind and have access to public find is ruling if we dont arrest the situation now we all regret. Remember rb corrupted party leadership to indorse him for presidential candidate. Ask Northwestern mmd leadership what happened to them when they questioned the indorsement.
just look at the man,save for the title of professor,the man is not in tune with reality.he is so old!!!!…wonder why we have such old men and women pa zed in important offices and positions..starting with the post for president..
He is busy advocating for the removal of the clause becoz he knows he now has so much unexplained wealth with his friend RB….
Just becoz u have gray hair or u carry a title does mean all u say is rite…
This man can be and is wrong!!..thats why he has not won all the cases he has taken to court!!
What I don’t understand is “why the evidence in this case has to come from the accused instead of the prosecution?” Aren’t we promoting laziness by our investigative agencies. Look what happened to Chiluba, Mwanawasa outlined several cases in parliament against Chiluba involving $millions and what did we get, $500 pin!
Now I really agree that law is an ass. You can interpret it as you wish. The problem I have seen with Zambians these days is that their debates on an issue becomes subjective, emotional and taking a partisan line. Many of us we take our sides on an issue simply because our political leaders have taken that stance or because the post editorial has taken such a stance. I know that this issue has become controversial because it appears to be sponsored by the Executive. But the question is, Does section 37 conflict with the Constitution or not? if it does what should we? Secondly is the removal of this section going to affect the prosecution of corrupt characters? if the answer is yes, how best can we come up with a law that will not contradict our Constitution to fight corruption.
Come on our learned friends lets have a comprehensive intellectual debate over this issue without being subjective for the sake of making sure that we the laymen are not misled. We would like some level headedness in this debate indeed in any other debated in the National interest.
Zambia is really rotten. Why do we want to protect thieves? The fact is there are VER FEW Zambians(Especially those in government) who have earned their money in the right way. The ACC is very weak. You cant have citizens earning less than $300 but owning property over $500K without other legitimate income. Now we learned lawyers like Mvunga supporting the removal of the clause because of POVERTY. He is not using his brains but the stomach to think.
Honestly I cant explain or account for my wealth.Very few bloggers on LT can explain their wealth.And I feel NO one has the right to question the source of my wealth.We are in a capitalist dispensation and archaic laws belong to the archives.
I have just received a text from a comrade telling me that a certain corrupt government official was bitten by a poisonous snake, the official is so corrupt that the snake died!
all nonsense from mmembe who knows the true position and reflection on this achaic law but wants to treat his gullible pf kaponyas to yet another of his genocidal machinations. dont confuse people just because god gave you the grace to be more intelligent than they are. pf kaponyas will oneday have their eyes opened by god and they wont forgive you for misleading them thus far. the truth is that there is no criminal trying to protect himself here. let he who has no sin cast the first stone.
Now Vunga a lier has joine the MMD-thugs-thieves. Look at him, so useless, a man who is quick to defend the indefensible. A man who is at all cost inclined to entrenching corruption in Zambia and yet he calls hiself a layer.
He was among the people who fomulated the law but today he is disparaging what himself made….what a useless lier Vunga.
He has now tested the corrupt money of the MMD-thugs and hence has lost his brains.
poverty is a bad thing. and it true that a poor man has no principle. this Mvunga guy used to talk the most sensible things. now because he has not benefit from government for a long time has seen an oppotunity with RB, he wants to support everything RB wants. the whole lot of Prof Mvunga has stooped so low as to think that we are too stupid to see logic. if the only problem with this act is what he want he is yepping about why not amend it so that it gives the accused a fair shot at justice. You Mvunga you sare unprincipled, you deserve no respect from the country that made you what you are. shame on you.
I think it is not enough to just call Mvunga names without advancing legal reasons. We need to be objective and not take a partisan line. Why don’t we start with the interpretation of Judge Chirwa’s ruling of 1984. This is a time when Zambia was a one party state and for the Judge to have made such a ruling, he must have really felt convicted that there was a serious conflict. Unlike now when lawyers representing the opposition speak to please their bosses, and those in the govt do the same. It is high time we rose above personal and partisan politics of hatred as exhibited in certain circles.
#4 this is not about educational attainments. its about character of a person. are you telling me if you see Prof Mvunga saying the most *****ic things you will gladly accept just be cause has higher educational qualifications than you? i dont see anything you are proud of in mvunga. guys with those educational attainments you are praising should use them to defend their country and not to help loot the less educated like you.
This Mvunga is only supporting his bululu RB because he wants to make sure that abangoni bakalaiba impiya sana. Ba kateka ba Sata ngabaingila mu state house next year will reinstate this clause as well as buy back Zamtel. Abaku Chipata should only be ba kaboyi ba mumayanda.
30 aticha – Call us Kaponyas, but we have given very good reasons why this article must be left in our laws. Ask yourself, if a minister who has a business instructs buyers in his ministry to buy goods from his company and gets paid even when he has not delivered under what law are you going to charge him? If a Head Master sleeps with your wife and promotes her to senior teacher even when she is not qualified for the position, what are you going to call that case? Facts are being twisted by MMD to convince people as to why this is being removed. You are a suspect under all laws in Zambia- you cannot be arrested if you are not a suspect. So if GRZ becomes suspicious about your wealth, is it wrong to probe how you acquired that wealth? If you did not steal, why worry? Ati Guilty before sh
This issue is bigger than mmembe. Its about a government gone criminali insane, how on earth do you pass a law that allows servants of the pipo to abuse resources placed in their power by ass their masters. Are you telling me aticha that you can allow your maid to act as she pleases in your house? What kind of hell would that be?!
NO ONE CAN NEVER FAIL TO EXPLAIN HOW HE/SHE ACQUIRED HIS/HER WEALTH ITS ONLY THOSE WHO HAVE ACQUIRED IT DUBIOUSLY WHO ARE AFRAID.GIVE US AN EXAMPLE OF ANYONE CONVICTED WRONGLY USING SECTION 37 OF THE ACC ACT?
#28. I guess you just woke up one day and found millions of kwacha in your account !
Section 99 of the Penal Code-which remains says-
99. (1) Any person who, being employed in the public service, does or directs to be done, in abuse of the authority of his office, any arbitrary act prejudicial to the rights or interests of the Government or any other person, is guilty of a misdemeanour. If the act is done or directed to be done for purposes of gain, he is guilty of a felony and is liable to imprisonment for three years.
(2) A prosecution for any offence under this or either of the two last preceding sections shall not be instituted except by or with the sanction of the Director of Public Prosecutions.
So, are we loosing anything by repealing section 37 of the ACC Act?
There is nothing wrong in having two laws ( in this case Penal Code and S. 37, ACC Act ) providing against the same mischief and complimenting each other. In the present instance, what is required is not the repeal of the entire Section 37 of the ACC Act but to remove from it words and phrases that presume an accused’s guilt and / or take away his right to remain silent, e.g ” shall, unless he gives a reasonable explanation, be charged… ” Such phrases in the Section are clearly unconstitutional and should be expunged.