As corruption allegations continue to fly against Zambia’s former first family, Rupiah Banda’s lawyers cry foul over the state prosecutor’s alleged bias .
Lately when he’s been speaking to the press, former Zambian president Rupiah Banda has done so from the steps of the country’s Subordinate Court, where the state machinery he once commanded is accusing him and his son Andrew of corruption.
With his presidential immunity stripped in the spring, the former Movement for Multiparty Democracy (MMD) leader is facing two charges under the country’s Anti-Corruption Commission (ACC) Act . The first charge stems from a government-to-government oil deal between Zambia and Nigeria in which Banda is accused of siphoning off $2.5 million. That case was recently adjourned until late October after the state witness reportedly testified that the deal had never come to fruition and no funds were exchanged between the two parties.
The second charge accuses Banda of concealing gratification in the form of nine campaign vehicles, allegedly offered by a Chinese company in exchange for a contract to build the Levy Mwanawasa Stadium in the city of Ndola. This case is also still in the courts, but, after preliminary hearings, it has likewise been adjourned while the state organises its evidence.
Meanwhile, Andrew Banda, who was first secretary to the deputy high commissioner in Italy during his father’s presidency from 2008 to 2011, is battling an ACC charge of profiting from the allocation of contracts. He is alleged to have attached a 2% commission quid pro quo to an Italian company’s infrastructure deal with Zambia’s Road Development Agency.
On the fringes of all this is his brother Henry, who lives in South Africa. While no formal charges have been pressed against him, allegations abound in the press by government ministers and journalists.
Defence alleges political agenda
The Banda defence team is a multinational entity. On the ground in Lusaka, a battery of four firms represents Henry and Rupiah Banda. Andrew Banda left the fold after a lawyer deemed there to be a conflict of interest . The local team is joined by Robert Amsterdam, a Canadian-born lawyer who has been barred from entering the country by the Patriotic Front (PF) government.
Amsterdam believes that the charges filed against Banda and his sons are politically calculating moves from President Sata’s PF government, which took power from Banda in early 2011. He believes that the recent arrests of MMD officials and the state’s attempt in March 2012 to deregister the party for the non-payment of registration fees only bolster his claims.
“The motivation is to ensure that before the next election there is a criminal conviction that can block Rupiah Banda from running for president,” Amsterdam said in a telephone interview with Think Africa Press.
The prosecutor and the lawyers
The defence team has not been afraid to get personal, with Zambia’s director of public prosecutions, Mutembo Nchito, a favourite target . The defence argue that previous allegations of corruption and failure to pay back debt during the Banda presidency against the lawyer undermines his ability to stay neutral in the case.
Nchito had built up a reputation as a exemplary lawyer, serving on the original Task Force on Corruption and appointed lead prosecutor in a case against Frederick Chiluba – Zambia’s president from 1991 to 2002 – although a prosecution was not secured. However, it was in Nchito’s role as chief executive of the now-defunct Zambian Airways that his character was called into question by some. In 2008, the company began to buckle under economic pressures it attributed to the global economic crisis and the rising cost of fuel .
With the airline reportedly in $1.7 million of debt for passenger service charges alone, Nchito resorted to a personal loan of $350,000 to offset the airline’s rising expenses, in addition to the $3 million the company had already borrowed from the Development Bank of Zambia. Despite the loans, the airline collapsed , unable to pay back its debts. A last-ditch attempt by Nchito to have the government waive the company’s debts backfired and led to a criminal corruption investigation which dragged out for several years under Banda’s presidency without concrete conclusion.
When Nchito was nominated as director for public prosecutions after the PF victory in 2011, he was forced to publicly defend himself before a parliamentary committee. Nchito admitted that he had an outstanding civil matter with the Development Bank, but denied anything illegal had happened. But despite questions about his past and some dissent from the opposition, Nchito’s nomination was ratified by parliament on 20 December 2011. It was reported that all charges had been ‘conspicuously’ dropped against him.
Nchito is now lead prosecutor in the case involving those who were in power when the charges against him were brought. In his testimony to the committee, Nchito said he had no intention of using his position to settle scores. At the same time, however, he attributed the downfall of his company to “constant public attacks by the former Republican President [Banda]”.
Nchito has also rebuffed the defence’s allegations directly. “Robert Amsterdam might style himself as a lawyer,” he said in a brief telephone interview, “but from where I sit he is a publicist, and I don’t want to waste my time with him.” Nchito refused to say much more, adding that the system can be slow and that he wanted to give Rupiah Banda a fair prosecution in the courtroom, not the press.
Conflicts of interest?
But Nchito’s apparently restored reputation was shook again in April of this year, when Lucky Mulusa, the chair of the parliamentary committee that selected him, filed a complaint to the Law Association of Zambia urging the organisation to sanction Nchito. In his letter, Mulusa noted that Nchito was personally leading the prosecution against Rupiah Banda, deeming this an unacceptable conflict of interest.
The letter also alleges that the Public Prosecutor had dropped charges of forgery and falsifying evidence, among others, against Rajan Mahtani, the owner of Finance Bank Limited where Nchito had taken out the $350,000 loan. Charges were apparently dropped in exchange for discontinuing a commercial suit seeking over $4 million in rewards for loans made to Nchito under the auspices of the now infamous Zambia Airlines.
Although Mulusa’s letter makes no mention of the personal loans, he wrote: “The instances cited above indicate that Mr Mutembo Nchito gave false answers to the Parliamentary Select Committee…The answers he gave to the Committee regarding the concerns raised were cardinal to the Committee arriving at an appropriate recommendation of Mr Mutembo Nchito as a suitable candidate for ratification.”
In response to Mulusa’s letter, the law association summoned Nchito to a June 2013 committee hearing which he refused to attend, citing the constitution in his defence. “These are high profile matters involving high profile political figures with political overtones,” Nchito told Think Africa Press, “and I feel I should just focus on my job.”
Trial by media
While the lawyers wrangle, the media flares. In support of Banda are entities like The Daily Nation , in which Amsterdam writes, in addition to his personal blog . In the other camp are state newspapers like The Daily Mail and the independent Post Newspapers which support the government’s prosecution case
Amsterdam’s blog has at times posted vehement attacks against The Post , alleging fake news stories , ongoing sympathies between Fred M’membe, the editor, and Nchito, and PF bias exemplified in part by the government’s recruitment into bureaucracy of the newspaper’s employees. He has also accused The Post of defaming him for running stories in which he is accused of money-laundering on behalf of the Bandas.
“We know him,” said news editor Joan Chirwa-Ngoma in her Lusaka office. “He wants to attack a media institution which he knows very well stands against corruption. The Post is one of the institutions that have never changed its position when it comes to corruption. It started from its inception.”
She said the newspaper is not blind to corruption allegations against the Sata’s government, but insisted that there is no clear evidence supporting those allegations and running stories on them could bring defamation suits.
Anti-corruption: all talk?
If the allegations against former president Banda are true, they will tarnish somewhat the anti-corruption measures he instigated during his time in office. He was praised for taking action against a 2009 Ministry of Health scandal that saw $1.7 million misappropriated through invoices for training and workshops that never took place. After the scandal broke in the press, Banda suspended 32 civil servants, including the ministry’s permanent secretary.
However, Banda came under fire during his presidency for removing the abuse of office clause from the anti-corruption act – which is ironically the very same clause he is now being tried against after it was reintroduced by the current Sata administration. His supporters say the spirit of the clause remained in the penal code and was used successfully in prosecutions.
Although President Sata has been applauded for reintegrating the abuse of office clause, his record thus far also disappoints. A constitutional review was supposed to produce a new constitution within 90 days of his election, but a final draft still has not been released. Moreover, delays in enacting the country’s much-anticipated Access to Information Bill have also detracted from Sata’s perceived posture on anti-corruption.
In a statement issued to Think Africa Press, Transparency International Zambia noted that weak laws and poor enforcement continue to permit corruption and the institutions set up to counter it suffer from poor capacity.