8 July 2009
Maputo — The main pressure against the independence of the judiciary in Mozambique comes from organised crime, and not from politicians, according to one of the country's most prominent lawyers, Albano Silva.
In a lengthy interview published in Wednesday's issue of the weekly paper "Magazine Independente" (MI), Silva points out that the magistrates who have come under persistent attacks in parts of the Mozambican press are "those who do not accept pressure from the criminals and those who have brought most dignity to the administration of justice. All those who have bent to pressure from the criminals are not mentioned".
Silva was clearly thinking of the unscrupulous and libelous campaigns waged by the right wing weekly "Zambeze" against Attorney-General Augusto Paulino, and against Supreme Court judges such as Luis Mondlane (now chairperson of the Constitutional Council), Norberto Carrilho and Joao Carlos Trindade.
"Zambeze" is a paper that has prostituted journalism in favour of those found guilty of the murder of the country's top investigative journalist, Carlos Cardoso, in November 2000, and of the connected case of the huge bank fraud in which the equivalent of 14 million US dollars was stolen from the Commercial Bank of Mozambique (BCM) in 1996.
Silva himself has been the target of a sustained campaign by "Zambeze", leading to a libel suit against the paper which is likely to be heard later this year. Silva took the opportunity of the four page interview in MI to respond to these attacks.
The series of articles against Silva always mention the fact that he is married to Prime Minister Luisa Diogo - but in his MI interview, Silva points out that he was practicing law long before his wife was appointed to the government.
In the late 1980s "I already had a name as a lawyer", he said. When the then President, Joaquim Chissano, appointed Diogo to his government as Deputy Finance Minister, Silva's services were already in great demand. "I never gained any advantage from the fact that my wife joined the government, and I never used this under any circjumstances", he said.
Those who persistently referred to his marriage were trying to debar him from the legal profession, but "I am not banned from practicing law merely because my wife has made a career in the government".
"The people who hire me as their lawyer have never done so because I am the husband of the Prime Minister", Silva added. "They have always asked for me as a good professional".
Among those used as a source by "Zambeze" in its articles against Silva is Isabel Rupia, currently a judge on the Maputo City Court, and previously one of the assistant Attorney-Generals, and a former head of the anti-corruption office. Silva said it was Rupia who, in 2004, when he was acting as lawyer for the BCM, set up an investigation against him on charges of bribery.
But Rupia, he said, was acting solely on information from one of the men who had ordered the murder of Carlos Cardoso and had defrauded the bank, Vicente Ramaya. None of the defence lawyers in the BCM case paid any attention to this claim by Ramaya, Silva stressed, and nobody used it to interrupt the investigations (which they could have done, had there been any serious grounds to the charge).
Rupia also tried to deny that the BCM even had the legitimacy to be represented by a lawyer and to bring a private prosecution against Ramaya and members of the Abdul Satar crime family who had committed the fraud. This was a clear attempt to remove Silva from the case, and he believed the only people who could benefit from that were the criminals. It took a ruling from the Supreme Court to throw out the arguments of Rupia and to restate the basic principle that the Bank had the right to be represented by a lawyer of its choice.
"In agreeing with the main defendants, in arguing that the BCM's position was illegitimate, and that its lawyer should therefore be removed, the assistant attorney-general (Rupia) gave an opinion that was opposed to the law, opposed to the interests of the state and of the good administration of justice", declared Silva.
Rupia's interventions during the BCM case, he added, were all illegal, and served only for character assassination, "and to feed campaigns of defamation".
Attempts were made to divert attention away from Ramaya and his accomplices and onto Silva and members of the BCM's Board of Directors, who were said to be the ones really guilty of the fraud. Even today, five years after the BCM case was heard, article still appear in "Zambeze" beating the same drum, and claiming that the BCM directors are still under investigation.
In fact, Silva said, "the question of the involvement of the BCM directors in the fraud was exhaustively discussed at the BCM trial, and it was more than proved that it was Ramaya, and none of the directors, who had engineered the fraud".
When the trial was over in mid 2004, neither the trial judge (Achirafo Abdul Aboobakar), nor the public prosecutor, nor anyone else directly involved thought it was necessary to begin criminal proceedings against the BCM directors, or against Silva. But in her capacity as director of the anti-corruption unit, Rupia tried to install parallel proceedings, and even issued an illegal warrant for Silva's arrest, before the BCM case was over.
Silva argued that she usurped powers which only belonged to the judge. "What she did was break the law and sabotage the trial, when she tried to humiliate the BCM's lawyer", he said. He had been greatly damaged by what he regarded as Rupia's illegal actions, and subsequently "I was repeatedly mentioned in the press as the author of acts of bribery, the beneficiary of the fraud, and the holder of illicit accounts, all because of the abusive and illegal behaviour of the former director of the Anti-Corruption Unit".
The case initiated by Rupia never led to any charges against Silva, and he felt obliged to lay a formal complaint against her. He sent dossiers about her behaviour to her superior, the then Attorney-General, Joaquim Madeira, but to no avail.
"I demanded that they either charge me or shelve the case", said Silva, "because the case was being used to sustain campaigns of defamation in the press". When he received no satisfactory answer, he initiated proceedings not only against Rupia, but against her successor in the anti-corruption unit, Rafael Sebastiao, and against Madeira himself.
Instead of being praised for his work to bring to justice those responsible for the country's largest known bank fraud, Silva found himself "betrayed by people who had a special duty to comply with the law and defend the interests of the state".
For it was the state that had been obliged to repay the money stolen from the BCM on the eve of its privatization, and was thus interested in obtaining compensation from the assets of the criminals.
Instead Madeira, Rupia and Sebastiao "did nothing to take measures to defend the state". They were informed of how assets that might have been used to pay compensation were being sold, but took no measure to freeze the assets of the BCM fraudsters.
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