Morality test

President Levy Mwanawasa was made to “preside” over a Judicial Tribunal that destroyed the career of late Director of Public Prosecution Mukelabai Mukelabai.

A flurry of letters by Mutembo Nchito, Nchima Nchito and Mark Chona charging all manner of misdeeds by Mukelabai forced the President to act.

The campaign against Mukelabai was initiated and sustained by innuendo and calumny published in a newspaper all of which were found to have been totally unfounded and a pack of lies, but the discovery came too late, long after the career of an illustrious lawyer had been destroyed. Mukelabai left Zambia into self imposed exile in South Africa where he died.

The Tribunal on which Supreme Court Philip Musonda sat found Mukelabai innocent of the various lies peddled against him, but so much had been said that he could not continue in his position with the confidence required of such a position.

Almost ten years later the same complainants have now brought another possible tribunal against three judges over a debt judgment which holds them culpable of repaying K18billion they obtained from the Development Bank of Zambia by fraudulent misrepresentation.

As someone has indicated “Their disregard for the ruling passed by Lusaka High Court judge Nigel Mutuna against JCN Holdings, Post Newspapers Limited and Mutembo Nchito and an edict that they pay back the K14 billion they owe DBZ is an attack on the rule of law. Their intention is intrinsically evil.

It will poison our constitution and corrupt our democracy.” In this new action, two senior Government lawyers have justified the institution of the Judge Chikopa Tribunal on technical grounds, but have refused to be drawn into the moral arguments advanced against it.

We of course do not agree with them. Neither did the entire Supreme Court. We fault their argument on two grounds. The first being moral and ethical.

Just because an argument is technically sound does not make it right and legitimate. Nelson Mandela challenged the very articulate apartheid lawyers who justified racial separation.

They won the cases, but were they right and justified? Of course not. The law may have allowed apartheid but it did not make apartheid legitimate. It is true President Sata may have power accorded by the constitution, but was this power used properly?

Was the transaction between President Sata and the Post Newspaper which propelled him into office distant enough not to suggest abuse of authority? Solicitor General Musa Mwenye was kind enough to admit that as a lawyer he was more concerned with the law than the moral questions raised by the Supreme Court.

We agree. As lawyers they argued the law, so did the Supreme Court which ended with a 4-3 decision in validating the power of the constitution, but ended with a unanimous decision to advise the President not to proceed with the Tribunal because the issues involved we not that clear and conclusive.

For a start and as Mr. Brebner Changala has asked, in whose interest is the Tribunal to be held? Is it for the people of Zambia or for friends of the President?

The issue is very clear it involves the K18billion debt which defunct Zambian Airways owes the Development Bank of Zambia and whose principals are now refusing to pay back on technicality.

Judge Nigel Mutuna found as a matter of fact that the money was obtained by fraudulent misrepresentation, meaning that the technicalities being raised are not material to the indebtedness.

The second being; the separation of power. It does not make sense to suggest a separation of power if the President can, at will, reach into the Judiciary and extract offending officers for “Tribunal” trial at the behest of his aggrieved friends.

This defeats the concept of security of tenure. Judges must be impartial, independent and must operate without the overriding threat of the executive. That is why we hope that President Sata will work in the best interest of the nation than to serve a narrow and very partisan group.