Lusaka principal resident magistrate yesterday ordered Chiluba to attend court on Friday at 10:00 hours.

This was after former president Frederick Chiluba’s lawyer John Sangwa attempted to tell the court that his client could not appear before him to testify in favour of the accused in a matter in which Post editor Fred M’membe, journalist Bivan Saluseki and FDD members of parliament Dipak Patel and Edith Nawakwi are on defence for allegedly defaming Chiluba by calling him a thief when he was still in power.

Magistrate Tembo ordered Sangwa to avail Chiluba in court before he raised any objections. Defence lawyers last week subpoenaed and summoned Chiluba to testify in favour of the accused.

But Sangwa told magistrate Tembo that they had in fact lodged an application before court to set aside with costs the subpoena or summons for Chiluba to appear in court as a witness for the accused.

Sangwa said even the order by the Inspector General of Police Francis Musonda for Chiluba not to leave the country before he testified in the matter should have no effect.

In their application, Sangwa and Robert Simeza stated that Chiluba was not a competent or compellable witness to appear for the defence. They stated that the summons and order by magistrate Tembo overruling President Mwanawasa’s decision to allow Chiluba to travel out of the country before testifying in the matter was an abuse of the court process.

Sangwa and Simeza further stated that the summons and magistrate Tembo’s order contravened Article 43 of the Constitution of Zambia. But magistrate Tembo asked for Chiluba before he could entertain any application.

Sangwa said Chiluba was not before court but magistrate Tembo maintained he could only listen to him after producing Chiluba in court. Magistrate Tembo said he wouldn’t want to be seen to harass or embarrass Chiluba by issuing a bench warrant against him if the defence felt that he had disobeyed the summons for him to appear in court. Sangwa then informed the court that he would make Chiluba available in court on Friday at 10:00 hours.

Magistrate Tembo advised both parties to prepare authorities in law that stated that a complainant could testify for the accused, especially accused persons who have elected to remain silent.

Defence lawyer Mutembo Nchito said he had those authorities which he even circulated to Sangwa and Simeza. Sangwa said the court should guide whether or not Chiluba was amenable to criminal jurisdiction of the court.

Earlier, Mutembo Nchito said he thought magistrate Tembo was kind by issuing an order to the Inspector General of Police to avail Chiluba before court because the Criminal Procedure Code (CPC) gave him powers to even issue a warrant to arrest for Chiluba so that he could appear before him. Nchito said he would be uncomfortable to proceed before Chiluba’s matter was settled because it hinged on the respect for court orders.

And magistrate Tembo ruled that proceedings before him in this matter could not be stayed in order for Simeza to seek an opinion of the High Court regarding the way things were being conducted.

He said his invoking of Section 150 of the CPC, rightly or wrongly, to send former Chiluba’s economic adviser Donald Chanda to prison for eight days for failing to answer questions could never be a constitutional issue. He said even Simeza’s assertion that Chanda was forced to answer incriminating questions was wrong because the record did not reflect that.

Magistrate Tembo also found Simeza’s submission that Chanda’s subpoena was done for political reasons to be wrong because he did not furnish the court with any details on that. He said even Chanda’s motor vehicle – the Nissan Patrol – he earlier impounded, could not be said that it was a deprivation because it was not gotten from him for good.

Magistrate Tembo said the detaining of the vehicle was on the basis of continued examination of the witness. Magistrate Tembo said it was not the court’s duty to impound vehicles which were deemed to have been acquired in suspicious circumstances.

He said other relevant law enforcement agencies like the Anti-Corruption Commission or Drug Enforcement Commission could take up the matter if there was any suspicion in the manner the vehicle was obtained.

Magistrate Tembo last month impounded the vehicle at the instance of the defence when Chanda failed to produce documents showing how he acquired it. Magistrate Tembo said in view of his observations, he had resolved to take full control of the matter and would ensure that the CPC is followed to the letter. “From now onwards, there will be no fishing in this matter,” magistrate Tembo said. “This case shall not be open ended. I would want the defence to provide the full list of the number of witnesses they intend to call.

And this court shall not be used to investigate other people. The court was not happy with what happened with the Zamtrop account statement which was produced here. Before it was discussed in court, it was already published in the press.

That’s an abuse of the court process. This is not an inquiry or a tribunal.” Magistrate Tembo also ordered that no subpoena shall anymore be issued in his court’s name and that all witnesses should now appear before him after being summoned and not subpoena as there was no provision for a subpoena in the CPC in criminal matters.

He further ordered that no witness will appear with a lawyer or lawyers because this would just end up disturbing the process. In pointing out that Simeza’s application was vexatious, magistrate Tembo said he would not entertain any issues or applications not backed by law.

Nchito said if the court felt the matter had been used to investigate other people, his clients could only tender in apologies. He said he would ensure his clients understood the court’s statement.

And in his continued testimony, Donald Chanda said whatever he did as the president’s economic adviser was with Chiluba’s full knowledge and authority. He said government had two contracts with the Carlington Sales – the Food Reserve Agency (FRA) contract for the provision of maize and also the lobby contract.

He said the lobby contract was signed by then Attorney General Bonaventure Mutale on behalf of the state. Chanda said on March 25, 1998 he wrote a letter to Carlington Sales authorising a payment of US $1 million for the lobby contract.

The money was to be diverted from the funds already paid by FRA for the maize contract. Chanda said in this move, he didn’t seek any legal advise because he had the blessings of Chiluba’s authority.

Asked what authority he used to pay out the money, Chanda said he authorised the payment in circumstances that required him to do so. He said although he didn’t know the details of the lobby account, he made the payment because he was aware that Attorney General had signed the contract and he had no reason to doubt him.

Chanda said payments at State House were authorised by the controlling officer and that at the time he authorised the US $1 million, he was not appointed controlling officer.

Chanda said he was not even aware whether or not the money government lost in the Carlington contract had been recovered. Under cross examination by division prosecutions officer John Konde, Chanda said to the best of his knowledge, Chiluba was not a thief.

He said though the accused alleged that he was a thief who allowed ministers to steal so they could share the money later, Chiluba performed national duties to the best of his ability during his tenure as Republican president. In re-examination by Nchito, Chanda said he didn’t take the US $1 million for his personal gain but executed his duties with Chiluba’s full knowledge and authority.

The defence continues on Friday with Chiluba as the next witness.

Amos Malupenga, The Post (Lusaka), July 9, 2002