The United Party for National Development (UPND) has challenged High Court Judge Evans Hamaundu to make public the sections of the law that made him dismiss an application by the State to have the London Court judgment against former President Fredrick Chiluba and his co-accused, registered.
Judge Hamaundu a week ago dismissed the applications for the registration of the London high court which found Dr. Chiluba and others liable for the theft of US$46 million.
Mazabuka Central Member of Parliament (MP) Garry Nkombo said Judge Hamaundu should share with the Zambians the sections of the law on which he based his decision to dismiss the application to have the judgment registered.
Mr Nkombo said Judge Hamaundu has the responsibility to defend his decision to the public and spare the judiciary from sustained attacks over his decision.
He noted that the Zambians should not be blamed for questioning the independence of the judiciary based on the recent decisions it has made.
[ QFM ]
“Mr Nkombo said Judge Hamaundu has the responsibility to defend his decision to the public and spare the judiciary from sustained attacks over his decision.”
Zambians are drunk with some juice that has probably come from Mars or I don’t know where. READ THE JUDGEMENT you people! Judges do not make decisions that cannot be seen. The Judge does not have any obligation whatsoever to defend his decision. Only a Superior Court can alter the decision.
Mr Gary Nkombo MP, the information is already in the public domain – in the judgement itself. If you cared to read it you would have had your answers already.
This is rubbish now could you people leave the learned judge alone he doesn’t have to explian himself to any one. We are tired of this issue all we need is to move on. The problem in Zambia is that when someone makes a comment every one will join in this time forget it we are not interested about the appeal and why is it that no one is asking those lawyers ( Nchito and company) to explain about the money they were paid for doing nothing according to the AG’s report you think Zambians are foolish this also stealing it seems no one is honest or is it greedness? Nonsence!
Oh no even when we all know that the judgement is flawed at law, Nkombo should be advised that nowhere in this real world do judges or judicial officers have to explain their decision, other than in the public document called the JUDGEMENT! Is this how shallow our lawmakers are, really? Pressure govt to appeal, not this hallucination, Mr. lawmaker, heeeeeeee, your ignoramus attitude is the limit!
On “Mazabuka Central Member of Parliament (MP) Garry Nkombo said Judge Hamaundu should share with the Zambians the sections of the law on which he based his decision to dismiss the application to have the judgment registered” well said Hon MP Garry Nkombo but did he speak as UPND or in his individual capacity.
I must also make mention that I was impressed by Garry Nkombo in his interview that ended a while ago on 89.1 MHz FM Radio station, especially when he said that he personally feels that SA President Jacob Zuma is not the right person to be at the helm of South Africa but he is happy that SA has systems that keep that country’s government working well even when the President is not the best qualified for the position.
PACT system will deliver.
Be blest all…
Sad how some MMD cadre nutters are wallowing into stuff they can hardly understand. Judges make their decision in contexts and the one Nkombo is talking about here is called “precedent”, Hamaundu must let the people know the precedent he relied upon to arrive at this jaundiced verdict of his. We know he has allowed South African cases to be registered here before (precedent) and it was incumbent upon him to follow that. Now that he has departed from his own precedent, he has to let us know the law he has used otherwise a tribunal must be set up to let him exculpate himself.
#5Maestro Hhehhehhehhe for 2011 would-b President of Zambia HH
My dear friend Maestro, you are being hypocritical here. I have always appreciated your contributions while you were abroad, but ever since you came back and enjoined yourself to the Zambian political system through UPND, you seem to have left sober sense and judgement. There is no need to pepper over mistakes when they are made by people we like. Call a spade a spade. Nkombo is out of order here. It is a shame that a member of the Legislature wants to interfere with the Judiciary. If this statement had been made by a member of the Executive, there would have been an uproar. No friend, this cannot be allowed.
Back MMD to break tribal tag, South told
FORMER secretary to the Treasury David Diangamo has said there is need for the people of Southern Province to break the myth that they are tribal by supporting a political party with a national character.
Commenting on an opinion poll by the Centre for Policy Dialogue (CPD) that revealed that the United Party for National Development (UPND)/Patriotic Front (PF) Pact is neither sustainable nor viable because of its ethnic and regional support bases, Mr Diangamo said time had come for the province to change the status quo.
He said the people of Southern Province should appreciate the many development projects the Government is undertaking in the area by supporting President Rupiah Banda in the 2011 elections.
Mr Diangamo said yesterday that some prominent Southerners had constituted a task force to campaign for the MMD in the province ahead of the polls next year.
“Speaking for people in Namwala and Itezhi-Tezhi, we are extremely happy with the performance of the MMD.
“President Banda has continued with the programmes and projects that the late president Levy Mwanawasa started,” he said.
Mr Diangamo said apart from new schools that had been built, new roads were being constructed and health centres being put up.
He said Namwala and Itezhi-Tezhi had a bumper maize harvest because of the good policies of the MMD Government.
Mr Diangamo said the people of Southern Province were tired of being in the opposition.
“We are tired of eating under the table as a people. It is about time that we also sat and ate the national cake from the table,” he said.
He advised the people in the province to break away from the image that portrayed them as tribalists by voting for a party with a national presence.
He said it was impossible for the UPND/PF Pact to form government because of their divided loyalties.
“The opinion poll is spot on. Southern Province can’t accept to vote for (Michael) Sata just like the people of Luapula can’t support Hakainde Hichilema,” Mr Diangamo said.
And Namwala Member of Parliament, Robbie Chizyuka has said the people of Namwala have the right to thank President Banda and his Government for fulfilling the dreams of their ancestors of ensuring that the area…
Major Chizyuka told ZANIS in an interview in Namwala yesterday that the people in the area were overwhelmed by the support Government had continued to give them.
He said for close to 46 years after independence, the area had not received the amount of development it had seen in the last three years and 11 months.
Hundreds of people from the outskirts of Namwala had started arriving in the Boma to witness the visit of President Banda who is expected to arrive in the area today.
Maj Chizyuka said President Banda’s visit to Namwala was at the invitation of the people in the district who were appreciating his development efforts.
Partner with Govt, Banda urges Church
PRESIDENT Rupiah Banda has urged the Church to partner with the Government to fight vices such as corruption, tribalism, social injustices, poverty and illiteracy in Zambia.
President Banda has also asked the Church to sustain its role of being the “salt and light” of the world by providing spiritual guidance to the leadership and the people of Zambia.
In a speech read on his behalf by Information and Broadcasting Services Minister, Ronnie Shikapwasha during the Evangelical Church in Zambia’s centenary celebrations in Lusaka yesterday, President Banda said the Church must stand and promote peace in the nation.
“As Government, we always look to the Church for support and spiritual guidance. Both the Government and the Church serve one constituency which is the people and nation of Zambia,” he said.
He said it was well known from history that the Church had been God’s instrument for positive change.
Mr Banda said it was the Church that led Zambian leadership return to plural politics at the Cathedral of the Holy cross meeting in 1990.
Mr Banda said the Government recognised the contribution the Evangelical Church in Zambia has made and continues to make to the development of the country through the provision of medical and educational services.
He said the Evangelical Church in Zambia has more than 1,000 local Church branches, five schools, two hospitals, one nursing college, one rural community development project centre and two bible colleges.
“This is a significant contribution the ECZ has made to the development of the country. I urge the ECZ members to embark on more developmental projects and ministries to further improve the well-being of the people,” he said.
President Banda also said the Church should pray for him, his Government and the people of Zambia so that the nation continues to blossom and prosper.
And Evangelical Church in Zambia presiding bishop, Paul Mususu said paid tribute to the people who established the church in Zambia 100 years ago.
Bishop Mususu said the Evangelical Church in Zambia…
He urged members to be submissive to God as they led their lives from the gospel of salvation to the to the gospel of the kingdom.
And Bishop Mususu has refuted media reports that he challenged the MMD to prove to the nation that they did not instigate violence at the funeral of Mpulungu MP Lameck Chibombamilimo.
Registration of foreign judgments: what next?
AS anticipated, the outcome of former president Frederick Chiluba’s case has continued to generate intrigue and emotion, sparking public outrage in some quarters.
The judgment dismissing the state’s application to register a London High Court of Justice Judgment that found Dr Chiluba and his accomplices liable for causing the Government loss of public funds amounting to US$46 million, has been subject of analyses and lengthy editorial comments.
There has been a lot of hype over the judgment as it was seen as a last ditch effort to nail Dr Chiluba after he was acquitted of criminal charges and the subsequent refusal by the Director of Public Prosecutions (DPP) to appeal.
But last week, High Court Judge Evans Hamaundu ruled that the Judge Peter Smith’s London judgment could not be enforced by direct registration.
He suggested (a bonus as it was not in his place to do so) the parties should have sought recourse to common law to enforce the judgment under principles of private international law or conflict of laws.
EMOTION
Since then, emotions have been running high. The ensuing debate has been so jaundiced by politics and a burning passion to prove by whatever means that Dr Chiluba is a thief that a fundamental point which the Hamaundu judgment brings out has been missed.
The point is that apart from two countries, two small islands in the British dominion for that matter, no foreign judgment can be registered in Zambia under the Foreign Judgments (Reciprocal Enforcement) Act Chapter 76 of the Laws of Zambia.
Some legal experts say even if the State was to appeal, it does not change that fact.
This is because no deliberate step was taken to issue a Statutory Instrument (SI) under Part II of the Foreign Judgments Act to specifically recognise judgments from the United Kingdom (UK) or any other country save for Solomon, and the Gilbert and Ellice Islands.
If all the emotions could stop, only for a moment, it would soon be realised that the lapses in the Foreign Judgments (Reciprocal Enforcement) Act is the same fate that has befallen other pieces of legislation that were left hanging in post independence.
At the change over of government from the colonial administration to black self rule (perhaps due to excitement that came with the joy of liberation or lack of necessity at the time) functionaries responsible neglected or omitted to update certain laws.
In the case of foreign judgments, before independence, all judgments from British colonies could apply automatically under the British and colonial Judgments Ordinance.
According to submissions made by counsels representing Dr Chiluba and his co-defendants (in this case Judgment debtors), even then there had to be substantial reciprocity among territories in the British dominion.
On the other hand, Judgments from countries which were not part of the Majesty’s dominions had to be registered under the foreign judgments (reciprocal enforcement) ordinance.
But when the British and Colonial Judgments Ordinance was repealed in 1959, both foreign judgments and judgments from the dominions could be registered under the foreign judgments (reciprocal enforcement) ordinance of 1958.
Consequently, in order to extend application, a second order should have been issued.
Neither in president Kenneth Kaunda, nor Dr Chiluba even in Dr Levy Mwanawasa’s time was this second statutory order ever issued to extend recognition of foreign judgments under part II and specify to which superior courts the Act would apply.
Incidentally, the British government did not issue a second order to reciprocate extension of Part II in the United Kingdom (UK) to Zambia either.
Counsels for the judgment debtors submitted on the basis of Jamieson v Northern Supply Corporation (Private) Limited stating, “in the absence of the second order specifically extending Part II of the Act to the UK and specifying in the same order the courts which shall be deemed superior courts, no judgment…
Counsels for the judgment debtors submitted on the basis of Jamieson v Northern Supply Corporation (Private) Limited stating, “in the absence of the second order specifically extending Part II of the Act to the UK and specifying in the same order the courts which shall be deemed superior courts, no judgment of the court of the UK can be registered.”
In the Jamieson case, a Zambian judgment for the payment of money could not be enforced in Scotland because there was no reciprocal arrangement between the two countries.
BAD LAW
Commentators including our own respected scholar Professor Muna Ndulo in his amicus curiae (friend of the court) submission on behalf of Transparency International –Zambia (TIZ) have made reference to an earlier case that Justice Hamaundu presided over in 2007 where he registered a South African judgment.
Many have questioned and rightly so, whether Justice Hamaundu was departing from his own ruling in Reefcor Limited v Les General des carrier et des mines Exploitation Gecamines.
But a quick count among legal practitioners will show that many find the Judge Hamaundu’s decision to register a South African judgment even when it had been argued that South Africa was not among the listed countries as bad law.
But they are quick to add, Justice Hamaundu upon being armed with well researched submissions from the counsels in the Chiluba case, was perfectly entitled to depart from his own decision. Perhaps what he might have neglected or omitted to do was to distinguish his decision in Reefcor.
The State through Attorney General argued that the Jamieson case was wrongly decided because the Order in Council of 1958 automatically extended application of Part II of the Act to all English judgments.
Prof Ndulo also weighed in on the same argument stating that the power to designate which countries the Act applies is only relevant where the president wants to extend application to countries that were not covered.
According to him, the 1958 Foreign Judgments Ordinance did not affect countries and dominions with which Zambia already had reciprocal arrangements.
Prof Ndulo argued in his meticulous submission that there was no question of reciprocity between UK and Zambia as that had been well established in Mileta Pukov and others v Rudnap Zambia Limited and the recent case, Zanetta Nyendwa v Kenneth Paul Spooner.
The rest of the great luminary’s submission either rehashed the arguments raised by the state or dwelt on thrashing out the defences available to the judgment debtor to set aside registration, which Justice Hamaundu did not even address.
Prof Ndulo said Dr Chiluba and his team could not use want of jurisdiction as a defence because they submitted voluntarily to the English jurisdiction when they among others attempted to have the civil proceedings in the London High Court stayed and challenged both jurisdiction and the decision to proceed in the Court of Appeal.
Legal experts deem this a flawed argument, as Professor David McClean an equally eminent scholar states that where a defendant appears in foreign proceedings to solely contest jurisdiction, “in those circumstances it would be perverse to interpret his action as submission to the very jurisdiction he actively repudiates.”
RECIPROCITY
The issue in the Chiluba case from the very on set has been reciprocity in so far as registration of foreign judgments and orders in Zambia are concerned.
This has been the main thrust of the judgment debtors’ argument. They raised a preliminary issue questioning the applicability of the Foreign Judgments Act and wherever there was indeed reciprocity between UK and Zambia.
Justice Hamaundu dismissed the application preferring to deal with the matter in the substantive case.
In his final ruling last week, Justice Hamaundu also cited Nyendwa where judgment could not be enforced because the matter was not among those orders covered under the Foreign Judgments Act and had failed to meet the conditions of being a final and conclusive judgment, one of payment of money and involving the participation of the other party.
He also referred to the Mileta case in which a judgment ordering payment of money awarded by Yugoslavian court could not be registered because Yugoslavia was not among the scheduled countries in the Foreign Judgments Act.
Justice Hamaundu noted that in the Mileta case, the Supreme Court observed that even under common law the judgment did not meet the conditions required for it to be enforced.
He also noted that the Foreign Judgments Act was not the only statute by which foreign judgments could be registered. There were other statutes relating to maintenance orders, matrimonial causes and those covering decisions in the former Federation of Rhodesia and Nyasaland.
“The position emerges from the cases and the statutes that I have cited; whenever a judgment creditor seeks to enforce here in Zambia, a judgment or order made by a foreign court, the creditor should first consider whether judgments and orders of such courts are enforceable under the Foreign Judgments (Reciprocal Enforcement) Act or indeed under any other written law.
“If such judgments are not enforceable under any of our written laws, then the creditor should seek to enforce such judgment at Common law.”
UNENFORCEABLE
On the question whether the London Judgment was enforceable under the Foreign Judgments Act or any other written law Justice Hamaundu found that it could not.
He said after the repeal of the British and Colonial Judgments Act, judgments obtained in superior courts in the UK could only become registrable under the Foreign Judgments Act if and when the Governor (president) issued an order extending part II to the UK.
“I have looked through our laws for such an order, I have been unable to find any. This means that the foreign judgments Act does not apply to the UK at present, and therefore the question of enforcing the judgments of the courts of the UK directly by registration under the Act does not arise.
And for this Justice Hamaundu said he saw no reason to look at the section six which covers the defenses available to set aside registration.
That said, it is still a win-win situation. The State can still commence action under common law as Justice Hamaundu has suggested or indeed can seek to enforce the London judgment in the UK where it was made.
Furthermore the case goes beyond just nailing a former president but brings to light some of the difficulties that Zambia will face as its citizens continue to trade or have international business transactions in the global market.
In the event of disputes, judgment creditors will have no recourse because of the absence of reciprocal arrangements to enforce foreign judgments.
Rather than cast aspersions against the judiciary, Zambians should be more worried about remedying the situation. It should be accepted that an omission has been made. At the height of the exposing plunder, no one even dreamed to check if all the conditions for enforcing foreign judgments had been met. All is not lost, now is the time to see to it that the relevant statutory orders are issued.
INTROSPECT
Another issue that may soon require addressing is the role of amicus curiae. The purpose of a friend of the court is to provide expert advice to the court over and above what the parties to the proceedings submit or where the parties may not have competence.
Often it is the court that calls for this service. An application can also be made by persons to be amicus but even then the court will have to determine their relevance and suitability.
Such persons have to be objective and non-partisan.
Some legal experts find as misconduct, short of an abuse of the process, for persons who were not party to proceedings to impose their opinion on the court.
Luckily, the Zambian judiciary is not harsh as it embraces all who err even when it involves highly experienced legal personalities. But it calls for serious introspection at amicus curiae applications so that they are not subject to abuse.
Aah, hino kayi Nkombo ba daala? Clearly that is not your area of expertise honourable, why not try a comment on the future of the Pact? More like your cup of tea there.
Now Zambians, why don’t we take one issue at a time and resolve conclusively? We should not be jumping from one issue to another like a monkey from one tree branch to another in search of some juicy fruit. What I mean is can we finish off the PACT issue first then we can come to the registration of the London judgement? It will still be there, especially if we can quickly conclude the Pact myth.
#veteran aka mwata aka senior citizen – get a life you adulterated moron – spending your entire evening writing bla bla bla bla bla… Nobody reads your sh.it. Evans Hamaundu made his decesion and he will live with whatever motivated him to do what he did. Most of these judges were appointed by mmd so we know where the allegiance lies period.
Bakabolala bachinfya,
You are making yourself a fool because you know that as PF cadres we have failed to come up with our own blog where we could articulate without MMD cadres. Above and beyond, insulting any of these guys only crashes you emotionally because they don’t give it a thought looking at how they keep ignoring you. Our tendency to generalize our emotions as being that of every blogger is a shameful failure at hand. What makes you think other pundits don’t read these propaganda threads except the insults we spill? And why don’t you counter them if you have the brain power or legal knowledge? Our challenge as PF is that we are handicapped intellectually. Seemingly no smart and educated Zambians are rallying with us as PF. All these some of us-educated chaps are MMD…
Bakabolala bachinfya,
Since MMD Spin Doctors have taken over LT, why don’t you lead us in starting our very own PF mouth piece project as MMD has done?
Bakabolala bachinfya,
Is it hard or couldn’t be sustainable on issues? There is no doubt that LT and the WDZ are die-hard MMD projects serving them well. Tell me who owns them? And why all MMD propagandists neither fire back or join the insulting foray no matter how you do it? Does it they don’t know how to insult????? Look at “FeePullBarFay” and how he insults Senior Citizen, his mother, father and Rupiah which i have tried in recent past, the chap never responds back. Instead, he comes totting with more propaganda. I’m left wondering if insults don’t move them.
this blog is not inspiring any more
from the veterans comments in short if i commit a crime in Britain that ruling can not be inforced in Zambia…your coments
time will tell..chiluba will be prosecuted..its just mickey mouse freedom..
Zambia has been coperating with other countries especially the Commonwealth on many points of Law. I as a layman remember vividly how just a few years ago ,a suspect who was wanted in the Uk was extradicted to the Uk. The Zambian government should be ashamed of themselves for mocking the judicially. Where is the Justminister, attorney General or DPP to defend their stance. Judge Hamaundu is just a ponny in the London judgement. It is sad that Shikapwasha and RB did not let the legal officers of the government to explain the judgement.
what is is the use of creating so much legislation on the international scene like the prevention of terrorism act and money laundering, if judgement in one country can not be enforced in another?