A LUSAKA magistrates court has acquitted former Republican president, Frederick Chiluba of six counts of theft by public servant.Ndola High Court deputy registrar, Jones Chinyama in delivering the six-hour judgment, stated that the prosecution team failed to prove the ingredients of the case against Dr Chiluba on all the counts.
The acquittal comes after a seven-year long trial in which Chiluba was jointly charged with former Access Financial Services (AFS) directors, Faustin Kabwe and Aaron Chungu for theft of US$500,000 from the Zamtrop intelligence account.
However, the court found Kabwe and Chungu guilty on three counts of theft and being in possession of suspected stolen money amounting to K68 million cash and $2,500 cash after acquitting them on the other three counts of theft by a public servant.
I have found that the prosecution has failed to prove the cases against the accused beyond any reasonable doubt and I acquit him on all the counts, while Kabwe and Chungu are equally acquitted on three counts but I convict them on the other three counts he said.
Mr Chinyama had earlier substituted all the seven counts levelled against the former president on grounds that he was not a public officer together with those of his co-accused and replaced them with theft and being in possession of suspected stolen funds.
He said in the indictment, the State had slapped Chiluba with a charge of theft by public servant, which he did not qualify to be, according to the Zambian Constitution, and declared the charges as incompetent.
Mr Chinyama, who was sitting as a magistrate, said the undoing of the prosecution in this case was their failure to secure former Intelligence chief, Xavier Chungu as their witness because he was a signatory to the Zamtrop account.
The magistrate said failure to secure Mr Chungu led to the failure by the prosecution team to trace the said suspected stolen money as being from the Government although it was undisputed that the money was moving from the Zamtrop account.
He said the position of the prosecution was that Mr Chungu collaborated with Chiluba to steal Government money but there was no evidence to show that all the money that the former president used to pay for his childrens school fees was stolen from the Government.
He said Chiluba was entitled to his money received through the Zamtrop account from private sources and there was nothing wrong for him to receive the money.
The prosecutions position is not straightforward and they have failed to demonstrate that the money Dr Chiluba was receiving was from Government as he started receiving money from private sources as way back as 1996, Mr Chinyama said.
He said the prosecution had the duty to prove the source of the said private money remitted into the Zamtrop account, a situation that was not clear even at the time of delivering judgment.
On sentencing Kabwe and Chungu on the three counts of theft and being in possession of suspected stolen money, he said he was satisfied that the State had proved the case beyond any reasonable doubt against the duo.
He said the two were directors and shareholders at AFS but failed to explain how they acquired money to buy shares in the company, and their story that they got money from Chungu could not be believed.
The duo, that was jointly charged in all the three counts, was alleged to have been in possession of $2,500 cash, K25 million and another K12 million.
In mitigation by defence lawyer, Robert Simeza told the court that his clients had already lost the company and that the court should exercise maximum leniency as they were facing similar charges in another court.
Mr Chinyama referred both defence lawyers, John Sangwa and Simeza Sangwa to the Law Association of Zambia (LAZ) to scrutinise their conduct of using offensive language in their submissions.
He said the offensive language used in their submissions was un-lawyerly, contemporary, revealing and inflammatory and reminded the duo that the court had a duty to uphold its findings and that the utterances amounted to contempt of court.
My findings after reading the submissions by the defence were that the two lawyers used offensive language which did not add any value to the case, he said.
Among Dr Chilubas sympathisers were his former deputy Finance minister, Dan Pule, ex-Home Affairs minister Peter Machungwa, former Vendors Desk minister Josiah Chisala, ex-Science and Technology minister Valentine Kayope and several pastors and Church members.
During the judgment, police officers tightened security and surrounded the court premises while cadres chanted MMD slogans blocking Dr Chiluba and his wife Regina on the way to their vehicle, which was parked at the entrance of the main building.
After the judgment, Dr Chiluba, who was visibly emotional at the magistrates court, held a Press briefing at his residence where he said that he was thankful to God on the outcome of the case.
He said he was going to have a last laugh as some people who thought he was a thief had already laughed for the seven years that he had been in court.
Dr Chiluba said he would talk much at a later stage because it was not good for governments to put former presidents at the mercy of foreigners.
He said even his wife had been called a thief for merely associating with him.
Times of Zambia
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