By C. Ngoma
President Banda does not have the advantage of the late President Mwanawasa who was “legally savvy”. I believe it was a mistake to appoint Rt Hon Kunda SC as Vice President AND Justice Minister. I wonder whether he is not calling the shots and giving the President un-challenged legal advice.
I say this because, by its very nature, law is adversarial and to every legal opinion there is a counter-argument. Lawyers do not really seek the truth but ‘law.’ Therefore, it is possible to do something unethical and yet legal. Whoever was responsible for the decision not to appeal against the Chiluba judgement did nothing illegal, but it was immoral and highly unethical. Justice MUST be seen to be done.
A lawyer may know that his client did commit the crime, but he has every right to challenge the validity of ‘the evidence’ because the onus is on the prosecution to prove guilt. To lay-people like me, this would be immoral, but not to lawyers! However, we have brought this upon ourselves because we want to live by the letter of the law. The law is cold and unfeeling.
In many cases, we apply to the human heart for empathy in order to get mercy. Justice and mercy do not go together. This is why the Christian message hinges on the doctrine of atonement where the blows of justice were parried as it were by the Son of God, so that ‘by His stripes we are healed and the chastisement that brought us peace fell upon Him.’ We have ALL at one time or another needed mercy and not justice: at a police road block with a defective tyre in hard economic times, on a long queue when we are in a hurry and ‘first come first served’ will not do, and myriads of mitigating situations in every court of law!
Why am I saying all this? I believe that if the President’s closest confidante is a lawyer, he will almost always come up with very tricky decisions. To a lay-person, some issues may be simply black and white, but to legal minds, there are almost endless possibilities and arguments that can extend the degrees of freedom of actions but still remain within the boundaries of legality. You may call them loop-holes if you want.
The Vice President is a former Attorney General and what qualified him for that office has not been taken away from him, and he remains in the Justice ministry. Could it be that, being such a senior lawyer, the younger and less experienced feel intimidated and are likely to take HIS opinion than form their own? Could it be that he finds himself confused as to which hat he should be wearing?
I suppose a junior surgeon may feel daunted to operate on a seasoned surgeon as his patient, and yet medicine is more factual and evidence based than law. For the DPP to really work independently, Rt Hon. George Kunda should not be Justice minister or else another, more senior person should take the role of DPP. I could be mistaken, but the events that have unfolded so far do suggest that the DPP did not make decisions independently, and if he did, he should come out and say so to his legal licensing authority, the Law Association of Zambia to whom he is answerable as a legal practitioner, rather than let politicians speak on his behalf. In the medical field, it would be wrong for a politician to defend a doctor charged with malpractice by the Medical Council of Zambia! Or has judgment fled to brutish beasts and men lost their reasoning?
Mr Ngoma you’re as clear as a whisle and i hope we gona be having more articles of this kind and less of senseless comments from the likes of CAPITALIST and his civil partner VETERAN.
Whats really strikes me about this RED LIPPED VIPER is that he allowed the Chansa Kabwela case to go ahead,instead of giving advice to the president, who at the time was emotionaly charged,was infuenced by the crowed at the press conference, and used mob psychology,the red lipped viper as a seasoned and learned lawyer should have seen that this case was going to be a COMEDY OF ERRORS,alas he let his egoistic instinct take control of his profession,what a myzer
Who is this brilliant writer ? He has posed questions which we can’t ignore. I have always said that it is not practical to sit in two chairs at a time… unless one splits their bum
This is the same man who worked with Mwanawasa to bring chiluba to task over his corruption charges,and today he is busy protecting LAZO,what a shame,i would be embarrased if he was my father
Its so refreshing to have someone put accross a well thought out analysis of this situation.
I hope this article will provoke intelligent debate rather than some name calling and finger pointing among the bloggers!
George Kunda is a snake and Reason seems to have run away from him a long time ago!
Indeed, it does not make sense for these politicians to claim that the DPP is independent. Doesn’t he have a mouth to defend himself? How can you claim to be independent when others are speaking on your behalf? And RB did not say ‘Mchenga stopped the Chiluba appeal because of the huge legal bills’. He said ‘I stopped the appeal’. So unless Mchenga and RB are the same person, there is no way Mchenga can claim he made the decision not to appeal. This decision was made for him. How some people can still come here and spin it otherwise is beyond belief!
Why are Zambian leaders always on cell phones. Are they leaders or dealers?
Guys, this so called learned lawyer is not even well learned. He only has a first degree which he is misusing! This thing is not even about being learned. It is about being stupid and bad upbringing. These are spoiled people bent to doing wrong all the time. Rural people who only came to town shortly for a bit of school and now they think they can do anything. Sometimes you wonder if they have children. You are spoiling this country and your children will suffere just because of your foolishness!
True statement CIAO. Village mentality is the cause of all these.
Reading half way i have proved that Mr.C. Ngoma is indeed a needy layman for legal interpretation tutorials.He need to be socked in some dialectic thinking first to attain some critical think maturity.Secondly i have realized that he has never been closer to Nkwazi House to understand how Ntungulushi work. GK may be a legal confidant but not absolute.Beside the official legal advisor to H.E office, H.E has other seasoned and accomplished legal minds with vast experience to guide him. Are world leaders lawyers?
The problem with Zambian politics is that we have a lot of trashy celebrities. The Pact has lamentably failed to tackle the government on the performance of the economy. The economy has become a symbol of success for the MMD government. Coverage in the private media is so skewed and baised. The Chinese pledged investment of US$400 million in the Luanshya and the mine is fully operational, and similar investments have been made in Mazabuka. Inflation rate is coming down with a possibility that it will soon be a single digit. Kwacha is very stable against major currencies. What is the problem Mr C Ngoma?
The article is quite good but also confusing, trying to make a case for moral based judgment, legal judgment and threw in a bit from the Scriptures. These are 3 very different bases of judging what is right or wrong.
God is all-knowing and has ability to see thru human beings for he created them. So nothing is hidden before him. Nobody can lie to God.
Judging what is right or wrong, guilty or not guilt on the basis of morality only works if people are being honest. In our case, only FTJ knows whether he stole or not. When you have crooks and dishonesty people, you need to employ other ways to determine justice. Hence the laws of the land – which work with evidence to prove a case.
A lot of Presidents in the USA are lawyers. So what matters is the system in which they rule.
#13 Contd. So if we have junior “doctors” fearing to challenge G.Kunda, or RB himself only getting legal advice from the Vice president, or the DPP being influenced by GK or indeed the president himself, then what is wrong is not the individuals and their behaviour but thw whole system in which they operate. the system must have in-built checks and controls to make sure that there’s integrity and no abuse of power.
It is good to ahve learned people in high offices. But as a nation, we must make sure that we have robust systems that work in teh interests of teh nation.
Here in the UK, Tony Blair, a lawyer dragged the UK into a war with Irag without support from people in UK. He used legal technicalities. Now we have an Inquiry on the Irag War so we can avoid that happening again.
#11 Veteran
My understanding of what Mr ngoma is saying is that Mr Kunda has had a very big role to play in the legal conundrums thathave beset this presidency. Never before has a vice President nor a justice minister for that matter, involved himself so closely with the prosecution or non-prosecution of cases in the history of this country! Kunda is a lawyer and it may be very difficult for him to remain detached from the offices that he very recently supervised while being VP. Indeed other legal minds are there at state house, but this is not about the President but about one person wearing 2 hats and an invisible 3rd.
Veteran at #11: You are lucky that you are so well vested with grammar and a rich vocabulary. Otherwise, you would have nothing to write about. I mean well, just brotherly advice!
THE DPP IS NOT ANSWERABLE TO LAZ OR ANY GOVERNMENT AUTHORITY. HE DOES NOT NEED TO EXPLAIN HIMSELF TO ANYONE, THATS WHY HIS OFFICE IS A CONSTITUTIONAL OFFICE AND HE MUST REMAIN SO. HE IS ANSWERABLE TO THE PEOPLE OF ZAMBIA. SO IF HE HAS DONE SOMETHING WRONG EVIDENCE MUST BE PRODUCED AND A TRIBUNAL SET UP. MR C. NGOMA YOU ARE JUST TRUIMPETING THE VIEWS OF THE POST MAFIA. MR. MCHENGA MUST REMAIN STEADFAST, HE IS A BRILLIANT LAWYER BETTER THAN A LOT OF THOSE FOOLS IN LAZ
C. Ngoma’s is well written and thought provoking. But without proper evidence all we can do is witch hunt. Did or did he not influence the DPP? Only the two know. The DPP took the Chiluba case to court and lost. So now he is be ajudged to be GK’s stooge for not appealing. How influence does GK have in the who justice system- we can only guess rightly or wrongly. Ngoma put well that what I might call evidence may not be so in court. No two lawyer have the same opinion.
TRUE VETERAN. H.E. DOES NOT RELY ON ONE PERSON. THERE ARE MANY SENIOR LAWYERS AVAILABLE TO THE STATE WHO ARE MORE CREDIBLE THAN THE CHILDREN AT POST.
C. Ngoma’s is well written and thought provoking. But without proper evidence all we can do is witch hunt. Did or did he not influence the DPP? Only the two know. The DPP took the Chiluba case to court and lost. So now he is be ajudged to be GK’s stooge for not appealing. How much influence does GK have in the whole justice system- we can only guess rightly or wrongly. Ngoma put well that what I might call evidence may not be so in court. No two lawyer have the same opinion.
Nachishibafye ati Veteran will just spoil a well thought out article na ama lembo yakwe. #16, ala lishuko bambi ngabalifye ba kamushi, mwe???????????
Ka Red lips, If this is the case, then you definately have to give up one post. Takwabafye zooona!!!!
#19 King Solomon. We make a big mistake when we adjugde anyone by the Post. Zambia has been in existence before The Post and will continue to do so after The Post. People have had different opinions long before The Post came into existence so do not align people to the Post when you think that the opinion differs from that of the government. In any case, this article is not saying that anyone did anything illegal, I think the gist of the matter is that justice must be SEEN to be done. My emphasis is on ‘SEEN.’ The President has done no wrong but that does not mean he cannot be advised by outsiders.
#17 King Solomon
If this C Ngoma is the same person, I have actually read some comments in The Post editorials with the same name which were highly critical of the Post’s attacks on the President. I do not think he or she is trumpeting the Post mafia.
Mr Ngoma nice article. Straight to the point.
Splaka, i missed you. How have you been?
#17 King Solomon
I am not sure whether you are right about the DPP not answerable to LAZ. Can he still be DPP if he is disbarred for professional misconduct?
Whoever was responsible for the decision not to appeal against the Chiluba judgement did nothing illegal, but it was immoral and highly unethical. Justice MUST be seen to be done.
I totally disagree with this! Whoever did this was committing a crime and it is called Obstruction of Justice! If you remember the Sokoni letter, it was hidden because Mutembo Nchito refused to follow and instruction to enter a Nolle Proscu. The Attorney General is not the defence lawyer for Chiluba but a for the people of Zambia and acting otherwise is tantamount to Obstuction of Justice. These people swear to uphold the law for God Sake!
I invite C.Ngoma any any legal minds here to a technically detailed and sustainable debate on the
This is great article and has brought alot of rational responeses biy like normal there are the normal spoilers who are good at name calling and little value to analytical debate. Well as one blogger corectly put it only the two i.e. the dPP and the president for certain knowwhat transpired in FTJ’s case. The rest of us can only speculate based on the POST’s reporting. As for George Kunda. is he dull ? no, he seems to be good a lawyer who specialises in getting his government. He is a former chair of LAz and I dont think our proud lawyers would put a dunder head. He was alsoa ppointed by a lawyer as AG and Miniter of justice which for me is reflection of respect.
Sorry about that accidentally posted!
I invite C.Ngoma and alllegal minds here for a technically detailed and sustainable debate on the points of contentions on double jeopardy, adjudication, evidence and appeal in the FJT case on one hand and issue of dual responsibilities of Rt Hon. George Kunda SC.I have time at hand to engage in these matters.lets debate them with facts from an informed legal perspective with civility and facts.
My good fellow blogger smooth criminal says that he wonders whether he gave advice over Kabwela. Well only the two of the them can answer that but advice does not have to be taken. Then smooth criminal is embarrased by the change of heart on prosecuting Chiluba. Well again he is being a good lawyer / minister and carrying out the bosses work. Oh and the post allege that under LPM he actually tried to havethe task force disbanded. but then we cant take what the POST says as Gospel. On answereing to LAZ, i think its his style to stay out of the Media. If you remember the first argument he had with the POST was when he refused to give his opinion off the fight agianst corruption. he simply said I am a functionary and my personal opinion does not count
Lets face the fact. George Kunda is a number one boot licker. He goes where the wind goes. Niba chenda namwela. We must be extremely careful with such individuals as they are bound to mislead the entire nation. George Kunda has never been consistent and thats why what he says totally differs with what is boss says. He is ready to do anything just to keep that job. Given the rope, this man can become a tyrant in future assuming that the MMD continues ruling beyond 2011.
Veteran. 1st of all I thank LT for posting my thoughts. And I thank you all for this lovely debate and reaction to these thoughts. I have hope for Zambia if we can advance the sum total of the body of knowledge through well reasoned debates. I admire your command of the English language and I must say that I always enjoy your blogs.
Well thought of article by C. Ngoma, however, mr. ngoma should learn to potray an issue from a clear perspective before confusing people with a marathorn of ideological perspectives all trying to explain the same thing, religion, legal and moral do not play well together in a political battlefield of unmatured body politic such as zambia’s. These three only work where you have a political society with a well respected system not prone to manipulation by self centered politicains such RB and GK. In any case, i believe this article will pave way for more issue based news commentary on Lusaka Times. Once again, good attempt by C. Ngoma
The doctrine of Double jeopardy states that a person cannot be tried 2ice 4 the same crime, but it is qualified if new evidence appears. In case of Dr FTJ Chiluba, the trial magistrate pointed out that the case had many loop holes. In a case where such appear, the magistrate gives the benefit of doubt to the defendant. One loop hole, was the failure of the prosecution to bring the former comptroller of Intelligence to court as their witness while at the same time he was also an accused person.
I have respect for Rt Hon G Kunda and the DPP Mr Mchenga. I have nothing but deeper respect for the President, but I cannot help but believe that there is self censorship in many public officers for fear of reprisals. I believe that the President is sincere but the constant and unrelenting attacks on him from a hostile media may cloud his judgement here and there and that because he is human. For war to be won, there must be many advisors and to give 2 jobs to 1 person in this day and age may not be that right. These recent court cases have played into the hands of their enemies. The VP is leader of parliament, over sees disaster management, deputises for the Presd, that is more than enough work for a year!
Veteran
Where are you?
You have challenged for a sustainable debate on the points of contentions on double jeopardy, adjudication, evidence and appeal in the FJT case on one hand and issue of dual responsibilities of Rt Hon. George Kunda SC.
Ba President ba amba ukupena, who told him presidency is for keeps. Liar Liar! The late President did not promise you to succeed him, you think you are royalty now, Zambian presidency is not a kings chair. Ba CB I hope you did not take his speech serous. Bwezani is getting old age disease you know what! I guess you have promised Kunda to succeed you or one of your sons. Bottom line we need a youngman to take over from you old finished politicians.
Lawyers are just a bunch of crooks and they are liability to this beatiful nation .lawyers are just good at talking and twisting facts in the name of the law.A nation like Zambia will never develop as long as we have lawyers like GK in leadership worse still as veep.
There are some who are confused about why morality is brought in. Dr Chiluba may have been acquited on a legality, but I believe that he has a moral obligation to explain 1. who gave him the money. 2. why he put the money in ‘our’ account. 3. why he was given that money. Perhaps he did explain no. 2 but there was no collaboration from Mr X Chungu. For the sake of probity, a head of state must be seen to be clean. What if the money was given to him to influence govt. policy? It is for this reason that this case should have been taken to the very highest court of the land so that facts are probed and justice is seen to have been done. Mr Mchenga’s reason for non-appeal was self defeating. It was not the evidence that was thrown out, it was the presentation.
I must admit this is one of the best articles LT has ever had, very objective and focused. George Kunda should religiush one position for sure if not both. Well done C. Ngoma, you did you homework and makes us proud and want to read more of such articles.
Junior s.h.i.t.i.z.e.n, YABA, you are BAD, Ha ha ha.
Ngoma, well writen artical thanks.
Ba Ngoma, I appreciate your remarkable explanation of double jeopardy and indeed the good effort on other points of contention.I wish you opened this discourse after reading the FJT case submissions and judgment which i presume you are yet to access.Its clear from your point of views that other than heavy reliance on the agenda media and their a legion of bad lawyers they were benefiting from, you have no premise of driving your debate on the Chiluba case unless I’m proven wrong.I humbly ask you to read the judgment and then we can request LT Honchos to open us a thread for debates.I also ask Siakalinkonto the UPND UK based attorney i have long noticed his presence here under new ID to join our open legal discourse.
Ngoma the case would have still gone for determination of the crminal matter. the other issues can only be determined by another court. Thinking in retropsect Mwanawasa should not have taken the criminal case route. He should have tried another way
#44 Veteran
Thanks. I am much obliged. I followed the case through the day by day reports in The Post online and not the summaries in our broadsheets.
True indeed. If I were the DPP I would resign.
#45 Positivist pa ZED
Thanks. Indeed you are right and especially that Dr Mwanawasa wanted to forgive Chiluba if he returned half of the money. A civil case would have been easier to prosecute. I agree. Well, I hope that we have learned how to deal with these cases in future. It is good for the country.
You guyz leave my uncle alone ,he is a good and kind man to Zambia.
Ngoma is right. The Law is an ass. Thats why we see Lawyers defending murderers because there is nothing wrong ethically.Kunda is suffering from conflict of interest. For example it will be ethically wrong for the Chief Justice to own a Law firm .
What a useless veep. What kind of law did this quack practice?
Let’s face it guys, the DPP need not necessarily be a senior practitioner than Kunda at the BAR for him to operate independently! What we need in the office of the DPP is a lawyer with bollocks of his own executing the requirements of that office without fear or favour as opposed to this wimp called Mchenga who seems to operate like a castrated Ox under the yoke of Kunda to give directions as he wishes. For all I know, and I spent 15 year in government as a senior civil servant, politicians will always try to bend civil servants over and pummel them by the backside. It’s take it, refuse or leave. Mchenga is taking it, whence the limping, god forbid what he has contracted from Kunda!
A very good debate I should say. I really enjoyed reading each and every post. Ladies and gentlemen, have a wonderful holiday season and a blessed new year.
Brilliant article, keep it up guy. Iam amased by the ignorance of “king solomon”. For your information one cannot be DPP if is is not a member of LAZ because the legal profession is regulated in Zambia. Take note and avoid this dangerous ignance
George Kunda is a great man who should deserve respect from all loving Zambians
Gk might seem not knowing what hes or vise-verse but i hope you all know that hes a man full of integrity, if he didn’t do his job well, do you think he would hold two positions?