 |
| Rescue Shoulders Estate
Agency Limited executive director Victor Chilekwa (c) with his wife and brother
Emmanuel when he and his lawyer Nsuka Sambo were sent to prison for contempt of
Court at the Supreme Court. |
The Supreme Court yesterday jailed a
human rights activist Victor Chilekwa and his lawyer Nsuka Sambo for three years
after finding them guilty of grave contempt of court.
Chilekwa, who is
executive director of Rescue Shoulders Estate Agency Limited, was jailed three
years suspended for one year on all counts of contempt of court while his lawyer
was jailed on one count of contempt, with a year also suspended.
This
means Chilekwa and his lawyer will only serve two years in prison.
This
is in a matter where Chilekwa and Sambo faced charges of contempt of court after
they insulted the court following the loss of an appeal between Masiye Motel's
Ltd and Rescue Shoulders and Estate Agency Ltd.
In the High Court, Rescue
Shoulders Estate Agency Limited sued Masiye Motels Ltd claiming K 200 million as
commission under a contract entered into by the two companies for the sale of
Masiye Lodge Motel.
The High Court ruled in favour of Rescue Shoulders
Estate Agency awarding them a sum of K100 million but Masiye Motel Ltd being
dissatisfied with the judgment appealed to the Supreme Court and
succeeded.
It is the loss of this appeal that enraged Chilekwa and his
lawyer, prompting Chilekwa to write insulting letters to Chief Justice Ernest
Sakala.
Chilekwa's contemptuous letters that got worse in succession were
dated January 9, 2010, February 11, 2010 and February 12, 2010.
In one of
his letters addressed to justice Sakala dubbed: 'Pay us our money, maintain integrity and root out nepotism
from the Supreme Court'
signed by Chilekwa and Moses
Zulu who is an operations and administrative officer from the same organisation,
read in part: "In fact, when handing us the judgment, your own officer of the
court, respondent counsel with more than 15 years of legal practice who you
interviewed for a High Court judge position said, 'It is a stupid judgment by
stupid judges'." Chilekwa continued: "Surely do blame yourselves for attracting
these words from among your own amicus curia (friend of the court). What more
will the outsiders say? Running the Supreme Court of Zambia on the lines of
nepotism will not help this country, as it may only turn Zambia into another
Rwanda of 1994 by forcing people to start taking the law into their hands due to
the courts' unreasonable irresponsibility in adjudicating cases. From your
conduct, it appears it's wrong to successfully perform one's contractual
obligations and the party that does not perform its part of the contract must
win the case because they are related to you. Why have you allowed your
relatives to benefit from their wrong of unilaterally varying the contract and
refusing to pay the hard working agents?"
Chilekwa demanded that his
case be reviewed.
The second letter he wrote addressed to justice Sakala
and the Deputy Chief Justice titled: 'Request for an appointment within seven days with
you' (Appeal number 187 A of
2007), Chilekwa asked the court why they had quashed the High Court decision,
accusing the lawyer for Masiye Motels, Professor Patrick Mvunga, of leaning on
nepotism to twist the case.
He stated that there was a cartel of
conspiracy in the matter.
Chilekwa also complained that he had been
blacked out from attending the Supreme Court hearing.
The letter further
read: "This conduct by the Supreme Court of Zambia is very embarrassing to
the MMD as a ruling party and we have a duty to reduce or totally eliminate this
nauseous embarrassment because people will construe that the MMD had sunk to the
lowest levels of unreasonable adjudication by the Supreme Court of
Zambia."
In the same letter, Chilekwa demanded that his matter be
reviewed, arguing that the Supreme Court would lose its dignified position if
outsiders heard about the matter. Chilekwa in his first letter of January 9,
2010 titled, 'Spiritually humble request to your lordship to maintain integrity
of our Supreme Court by giving the respondents the little due to them', started
by quoting High Court judge Philip Musonda.
The letter read: "When
delivering an administrative Law II lecture to the second year undergraduate law
students in 2007 at the University of Zambia premises, the dignified High Court
judge Honourable Philip Musonda said, 'We as judges are called Lords because we are expected to be pure.
People cannot worship that which is impure and this is why judges are not
expected to be corruptible. Speaking for myself as judge, corrupting me is
insulting my Lord Jesus Christ'."
Chilekwa alleged that Prof Mvunga lacked both facts and
law to help him win the appeal but appealed 'banking' strongly on his personal
relationship with the judiciary top hierarchy and its influence.
After
the court received the first letter, it instructed lawyer Sambo to advise his
client but they were surprised to receive a second letter that was worse than
the first one.
At this point, the court decided to cite Chilekwa for
contempt to show cause why he should not be punished but before the summons were
finalised, they received a third letter which was more caustic.
One of
the letters was co-authored by Moses Zulu against whom summons had been issued
but could not be traced. A bench warrant has since been issued for his
arrest.
Summons were consequently issued and served on Sambo to show
cause why he should not be cited and punished for contempt for saying, "Stupid
judgment by stupid judges."
When the matter first came up, Chilekwa
engaged Eric Silwamba to represent him in the matter but after reading the
letters, Silwamba told the court that the letters were contemptuous.
He
said he had as a result instructed his client to refrain from such conduct in
future.
During the consultation with his client, it appeared Silwamba and
Chilekwa differed because when the sitting resumed, he applied to withdraw from
representing Chilekwa on professional grounds stating that Chilekwa would
represent himself.
Chilekwa asked the court for 10 days to engage what he
termed as 'a credible lawyer'. He later engaged Sambo.
In his evidence
when he was summoned to show cause why he should not be cited, Sambo said he
uttered the words, "stupid judgment by stupid judges" in order to convince his
client that the situation was not going to change. He admitted that as an
officer of the court, he made matters worse but that his client went on rampage
immediately he got the judgment.
Sambo ended his testimony by apologising
to the court for having failed it as an officer of the court after being
directed to deal with his client.
When it was his turn to address the
court, Chilekwa prefaced his testimony by asking the court to discharge Moses
Zulu saying he was too young to face the heat but the court said Zulu needed to
come to court to speak for himself.
He told the court that the intention
of the contemptuous letters he wrote was not to insult or demean the court but
to cry for his hard-earned money.
Chilekwa, instead of purging the
contempt, rubbed it in by accusing the judges of corruption and ruling in favour
of their village mates or relatives. He alleged that judge Marvin Mwanamwambwa
was a bit too much on the line of corruption while judge Hildah Chibomba was too
much on the side of judges from Eastern Province.
Chilekwa said there was
a clique of judges who came from the same village and that they ruled in favour
of their relatives while those outside the circle did not stand a
chance.
He asked the court to play a CD containing conversations between
himself and his lawyer saying his lawyer had uttered disparaging words about the
judiciary that he believed 100 per cent hoping that if they listened to it,
something in the judge's spirits would be stirred.
Chilekwa cited the
clique coming from the same village as President Rupiah Banda, Chief Justice
Ernest Sakala and Professor Patrick Mvunga.
He said Prof Mvunga was
justice Sakala's brother-in-law and the judge Anderson Zikonda who handled the
matter in the High Court was an easterner just like Prof Mvunga and that both of
them had been teaching at the University of Zambia.
Chilekwa said judge
Zikonda and Prof Mvunga were lucky to get 50 per cent of the money he claimed in
the High Court as the two had negotiated the amount.
He told the court
that his lawyer Sambo told him that he lost the case because of the relationship
between Prof Mvunga and the Chief Justice.
Chilekwa even questioned the
capability of Prof Mvunga as Professor saying his submissions in the High Court
were below par.
Asked by the court whether he was aware that the court
had presided over matters involving even fellow judges, his reply was that he
was yet to witness "that interesting scenario".
Chilekwa was also not
aware that even the MMD he alleged would be embarrassed by the Supreme Court
judgment had lost several cases in court.
He testified that his lawyer
had told him all the aforementioned stories and that even when they met after
the judgment, the lawyer added fuel to the whole scenario by describing the
judgment as a 'stupid judgment by stupid judges' and telling him that judges
Mwanamwambwa and Chibomba were too much on the side of corruption and negativity
therefore could not withstand the mighty approach of the
Professor.
Chilekwa told the court that his lawyer had no kind words for
the bench, was bitter and even encouraged his clients not to take cases to court
because of what he termed as "the foolishness of the court in twisting things to
favour friends and relatives".
On being reminded that Sambo had applied
to join the bench, Chilekwa told the court that Sambo was found to be a lame
duck on a constitutional discriminatory clause of him being a Jehovah's
Witness.
In passing judgment yesterday, Deputy Chief Justice Ireen
Mambilima said the court found as a fact that Sambo uttered the words attributed
to him as he would have denied it.
Justice Mambilima said Chilekwa
admitted having written the three letters and it would appear that together with
his lawyer, they discussed at length and came up with beliefs expressed in the
three letters.
She said in alleging corruption against the two judges,
Chilekwa was courting a fourth count of contempt in the face of the court.
Justice Mambilima observed that to justify the loss of their case, Sambo and
Chilekwa came up with an equation of looking at the origin of the Chief Justice
and his relationship with Prof Mvunga.
She said the court could see
Sambo's jaw drop as his client recounted what he had allegedly told him ending
by saying that he believed his lawyer 100 per cent.
Justice Mambilima
noted that Sambo watched in awe as his client dismissed his apology to the court
as cosmetic saying his lawyer had said more disparaging things about the
court.
She described as bizarre, a situation where a lawyer and his
client could sit to reduce to record through CD untruths aimed at demeaning and
disparaging the court.
Justice Mambilima said if Chilekwa had rationally
considered what his lawyer had told him, he would have discovered that Prof
Mvunga had lost many cases in court and that there was no constitutional
provision that prescribed that a Jehovah's Witness cannot be appointed to a
higher bench.
She said Chilekwa's own lawyer failed to inform him of the
hearing date.
Justice Mambilima said through out his testimony, Chilekwa
showed no remorse by making further allegations of corruption against
judges.
She disclosed that it was the court's view that Chilekwa from the
outset proposed to write letters and made wild allegations under the mistaken
impression that he could intimidate and force the court to change the verdict in
his favour.
Justice Mambilima said there was no doubt, through Chilekwa's
insolent letters, that he and his lawyer were attacking the integrity of the
court. She advised that a line had to be drawn between bonafide criticism,
outright insults and insolent language.
Justice Mambilima said Sambo's
statement, "stupid judgment by stupid judges", could not by any stretch of
imagination qualify to be criticism made in good faith as it was an outright
insult.
She described as preposterous the argument by Sambo that the
words were not intended to insult the court.
It is against this
background that the court found Sambo guilty of grave contempt.
Justice
Mambilima ruled that there was no doubt that Chilekwa in his letters and
testimony before the court used insolent language and made serious allegations
of improper conduct and corruption, which he tried to justify on the ground of
tribal origin.
She said corruption was a criminal offence severely
punishable under the law and any person had the right to invoke the criminal
justice system against any adjudicator whom they suspected of corruption by
reporting to the Anti-Corruption
Commission (ACC).
Justice Mambilima asserted that wild
unsubstantiated allegations of corruption against any member of the bench could
not be condoned.
She found Chilekwa guilty on all counts describing his
conduct as unacceptable.
Justice Mambilima said Sambo was an officer of
the court by virtue of Section 85 of the Legal Practitioners Act CAP 30 of the
Laws of Zambia.
She lamented that Sambo abandoned his role and was
actually the fuel that propelled Chilekwa to write insulting
letters.
Justice Mambilima revealed that never in the history of the
country has such an insult been publicly uttered by a lawyer against a
court.
The court found Sambo guilty of grave contempt which required a
stiffer penalty of a custodial sentence, saying the judgment or proceedings
would be handed over to the Law Association of Zambia (LAZ) to mete out
appropriate sanctions under the Legal Practitioners Act.
Justice
Mambilima then proceeded to pronounce the jail sentences for Chilekwa and
Sambo.
In an interview after judgment, Chilekwa said he expected the
judgment because he was fighting abuse of office.
Earlier, Chilekwa who
said he had a law degree, explained that every person was born a lawyer and the
lawyer in them came out when they were aggrieved thus going to court. He said
even mothers in homes knew what constituted justice.
Chilekwa said law
was not like witchcraft or shrines that had to be kept secret, that was why it
was called administrative law to control the exercise of constitutional
power.
Asked to comment on the judgment, Chilekwa's wife said she had no
comment.
The Post
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