Arthur Simuchoba
28 March 2008
column
Gaborone — The recent sentencing by the Lusaka High Court to a jail term of the former commandant of the Zambia National Service (ZNS) Major-General Wilford Funjika has served to highlight some of the troubling questions around Zambia's anti-corruption drive and the real difficulties that may arise when judicial proceedings are driven by an overtly political agenda.
Real questions arise as to whether justice can be done and be seen to be done in circumstances replete with open lobbying for stiffer sentences to "deter corruption" by anti-corruption lobbies and when it becomes unavoidable to openly and publicly discuss cases pending in court because they are any way part of the central political discourse of the day.
In circumstances not too different from those, the former ZNS Commandant was on March 10 jailed for nine months, becoming the first of the four former Zambia Defence Force (ZDF) commanders on trial for corruption to receive a custodial sentence.
The development sent some shockwaves as it is widely considered to be indicative of the fate of the other accused, including former president Frederick Chiluba whose cases still have to be determined. The fear is that they may be jailed merely to satisfy the clamour for demonstrative punishment.
Ordinarily, of course, due process in Zambia is straightforward though it may be punctuated by several adjournments. But the verdicts tend to be credible mainly because they are arrived at largely on the basis of the quantum of evidence, free of lobbying or politicking.
It has not been quite so in the corruption cases that have been brought to court in line with President Levy Mwanawasa's campaign of "zero tolerance for corruption".
They have been accompanied by a certain clamour for stiffer sentences by anti-corruption lobbyists and by the usual tendency to extol everything that a president does by those who may want to curry favour, or be seen to be his genuine supporters.
The cases seem to have been prejudiced in no small measure by the constant references to "plunderers" even though the "jury" is still out. Anti-corruption activists have decried sentences as "lenient" and "soft" when it is the harsher ones that are called for.
The judiciary is being exhorted to take a more "activist approach" in order to help "stamp out corruption" and those who must sit in judgement of these issues are now acutely aware of this trend since some of their decisions have been openly criticised.
The jailing of Funjika illustrates something of the general atmosphere. He was found guilty on two counts of abuse of authority of office by a Lusaka magistrate last December and initially given a two-year suspended sentence and ordered to pay back 150,000 pounds Sterling, which he was found to have received from to the ZNS, the third arm of the Zambia Defence Forces.
The magistrate then had said that he had opted for a suspended sentence because of Funjika's failing health.
He is in poor health; having suffered a massive stroke while still on trial that left him virtually paralysed and he now only walks and stands with the aid of a walking stick.
But anti-corruption NGOs notably, Transparency International Zambia (TIZ) rubbished that sentence. They criticised it as "too lenient" and not reflective of the import of the transgression or any real desire to deter corruption. There were other murmurs of disapproval on the lines of the courts letting down the corruption "clean-up."
Subsequently, the High Court reviewed the magistrate's decision and on March 10, set aside the suspended sentence substituting in its stead, a nine-month custodial sentence.
The reviewing judge said that while it was true that Funjika was in failing health, the import of that was reduced by the fact that there were "legislative incursions" that, for instance, allowed the HIV/AIDS afflicted to serve custodial sentences and Funjika was guilty of what the court described as 'grand corruption" for that matter.
Anti-corruption groups were elated and saw it as a victory and vindication of their stance.
The TIZ that decried the suspended sentence as lenient now said that it considered the decision to revise the suspended sentence "a fair judgement".
"However, we strongly feel it should not have come to this if the lower court had done its work properly. The judiciary needs to be bold and courageous in dealing with issues of corruption...The clarity and boldness exhibited in this case should remain the hallmark of the Zambian judiciary," it said.
Referring to what it portrayed as the general trend hitherto, it observed:
"The sentences clearly have been mild and a light slap on the wrist in most cases and it can be concluded that these sentences are ineffective especially if the intention...is to use the investigation and prosecution of high profile cases as a deterrent to those who may be inclined to engage in such activities."
It said that it had been advocating for "a high level of activism by the judiciary to send a strong message that corruption especially grand and political corruption would not be tolerated".
The Taskforce on Corruption said the decision of the High Court was "a great morale-booster. We feel that our efforts are not in vain. It motivates us to do more," said its chairman.
Zambia's first president Kenneth Kaunda weighed in, effectively blaming the whole malaise of corruption on the influence of his successor, former president Frederick Chiluba, sentiments that Chiluba, who is in South Africa for medical review, is sure to answer at some stage.
All told, there was a great deal of satisfaction about the revised sentence in the anti-corruption circles.
But it is also clear that their focus is only on one side of the coin and on an issue where balance should be the watchword.
The result is that on the other side, the big question is whether these kinds of "vibes" do not rob the situation of the kind of balanced atmosphere where the accused can have a fair trial, which is their right and entitlement as citizens regardless of what they may be accused of.
For, invariably any acquittal or sentence that is not to the liking of the lobbyists will be greeted with derision and cries of being "soft on corruption"
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