The People v The Executive Chairman of the Task Force on Corruption Exparte Aaron Chungu and Faustin Kabwe (2008/HP/1339) [2012] ZMHC 93 (9 February 2012)

I' . ,. IN THE HIG COURT FOR ZAM. BI~,0~~-~-~_,°F2"?"'" AT THE PRINCIPAL REGISTl;~.'X. ·-,,,/ ? • oz ~~.'\ AT LUSAKA 7 I (CIVILJURISDICTION) f ti -g FEB 2012 ~ (t' : .. > / Pl .. NCIPAL 2008/HP/1339 BETWEEN \\, -~: HEGISTRY ~~ ~'.,.:_)~q ~~;~~_7 THE PEOLE VS. THE EXECUTIVE CHAIRMAN OF THE TASK FORCE ON CORRUPT! ON EXPARTE AARON CHUNGU AND FAUSTIN KABWE APPLICANTS BEFORE HON. MRS. JUSTICE CHRISTINE B. C. PHIRI -" fior the Applicants - Simeza Sangwa & Associates ~- For the Respondents - Attorney General's Chambers JUDGMENT AUTHORITIES 1. Order 53 of the Rules of the Supreme Court. 2. The constitution of Zambia Cap 1 of the Laws of Zambia. 3. Shilling Bob Zinka Vs. The Attorney General (1991) SJ (SC) JK Steel Ltd Vs. Union of India AIR (1970) SC 1173. (ii) The applicants in this matter have moved the court pursuant to order 53 of the Rules of the Supreme Court, to review the decision of the Task Force on Corruption requiring them to attend at Woodlands Police Station for interview with the Task Force as contained in the call outs dated 19th December 2008. The applicants in this matter have contended that there is no instrument with the force of law supporting the Task Force. Hence this application for judicial review. The applicants In the first part here discussed the applicant's case. In the second part the applicants have discussed the remedies they are asking the court to grant them. In the last part the applicants looked at the merits of their application. The applicants in this matter commenced their case by citing the famous case of Council of Civil Service Unions and Others Vs. The Minister for Civil Service (1984} 3 ALL ER ill In which LORD DIPLOCK made an important observation on the subject of Judicial Review in line with the provisions of order 53 on which the applicants are relying upon. In this case LORD DIPLOCK said ''Judicial Review now regulated by order 53 of the Rules of the Supreme Court of England, which provides judicial control of Administrative action to be exercised. The subject matter • of every Judicial Review is a decision made by some person ( or body of persons) whom I will call a decision maker or else a refusal by him to make a decision": The applicant's case is for Judicial Review in the decision which was made by the Task Force on Corruption in relation to the call outs requiring the applicants to attend at Woodlands Police for interviews with the Task Force as contained in the call out dated 19th December 2008. The applicants in this matter filed an affidavit in support of their application and they are relying on the same facts as contained in their affidavit in support. In issue is the decision which the Task Force made on the 19th of December 2009. The applicants asserted as a matter of fact that there is no Act of parliament, ,. which creates and stipulates the authority or functions of the Task Force on Corruption. Secondly, that there is no statutory instruments proclamation, regulatory order, rule or other instrument (not being an Act of parliament) of a legislative nature as distinct from an executive character, creating and providing for powers of functions of the Task Force on Corruption. Thirdly the applicants contend that the constitution of Zambia does not provide for creation of the Task Force on Corruption. It Is therefore the applicant's case that there is no Instrument with the force of law, which stipulates the powers or functions of the .. .. Task Force on Corruption, let alone which provides for the creation of the Task Force on Corruption. The applicants contended further that the Task Force on Corruption Is an illegal body. The applicants stated that on Friday 19th December 2008 two persons In plain clothes introduced themselves to the applicant MR. AARON CHUNGU, as officers from the Task Force on Corruption and presented to him a call out dated 17th December 2008 at 14:15 hours in connection with some crime which was being investigated by the Task Force on Corruption. The applicant refused to accept the said call out, then the said persons left the call outs at Simeza Sangwa and Associates requiring Messrs AARON CHUNGU and FAUSTIN KABWE to attend interviews at Woodlands Police Station. Messrs Simeza Sangwa wrote to the Task Force on Corruption advising them • that the said call outs were irregular as per exhibit "ACFMK 2". The applicants stated that they refused to comply with the call outs and on 22nd December 2009 the applicants moved this court to review the said decision which is now the subject of Judicial Review, the applicants were granted leave to commence these proceedings which leave serves to a stay of the decision in line with the provisions of order 53 Rule 3(10) of the Rules of the Supreme Court. Toe applicant's counsel submitted that the action of the Task Force was illegal and irrational and argued that illegality as a ground for Judicial Review means that a maker must understand correctly the law that regulates his decision making power and must give effect to it, whether he has a justifiable question to be decided, in the event of • dispute by those persons in whom the power of the state is exercisable. In this case the applicants have contended that the decision by the Task Force on Corruption was illegal and they state so on the grounds that:- (a) That the powers to receive and investigate complaints of alleged or suspected corrupt practices or offences under the Anti - Corruption Commission Act are exclusively vested In the Anti - Corruption Commission under section 9 of the Anti - Corruption Act. (b)That the power to receive and Investigate and Investigate complaints of alleged or suspected offences under the Penal Code Act Chapter 87 of the Laws of Zambia are exclusively vested In the Zambia Police Force Act section 5 of the Act Cap 107 of the laws of Zambia. (c) That the" Task Force on Corruption"to the extent to which it claims to have power to receive and investigate such complaints or alleged or suspected corrupt practices or any offences under the Anti - Corruption Commission Act and to prosecute such offences of alleged or suspected corrupt nature, such claims are ultra vires section 9 of the Anti - Corruption Commission, hence null and void. (d)That the "Task Force on Corruption"to the extent to which it claims to have • the power to receive and investigate complaints of alleged or suspected offences under the Penal Code Act, Cap 87 of the Laws of Zambia and to prosecute such complaints the claims to have such powers ultra vires section 5 of the Zambia Police Force Act Cap 107 of the Laws of Zambia hence null and void. (e) That the "Task Force on corruption" to summon the applicants attend interviews at Woodlands Police Station is ultra vires section 9 of the Anti - Corruption Commission, hence null and void. (f) That the decision by the "Task Force on Corruption" to summon the applicants to attend the Task Force for interviews at Woodlands Police Station is ultra vires section 55 of the Zambia Police Act, Chapter 107 of the Laws of Zambia hence null and void . (g) That the "Task Force on Corruption' is neither a constitutional nor a statutory body, hence has no power to receive and investigate any complaints of alleged or suspected corrupt practices or any other offence under the Anti - Corruption Commission Act, the penal Code or under any other laws and to prosecute such alleged or suspected offences under any other law. • The applicants in light of the above are seeking the following remedies:- (a) Order of certiorari directed to the Anti - Corruption Commission to remove into the honourable court for the purpose of being quashed, the record of investigations by the Task Force on Corruption now in the possession of the Anti - Corruption Commission which culminated the Issuance of the call out dated 19th December 2008 requiring the applicants to attend interviews at Woodlands Police Station with the officers of the Task Force. (b) A declaration that the "Task Force on Corruption'' had no powers or authority to receive or investigate the alleged offences. (c) A declaration that the Task Force on Corruption had no power or authority to investigate alleged offences under the Penal Code Cap 87 of the Laws of Zambia. (d) A declaration that the Task Force to the certain extent to which it claimed to have power to receive or investigate complaints and prosecute them under the • Anti - Corruption Commission Act are ultra vires section 9 of the Anti - Corruption Commission Act hence null and void. (e) A declaration that the claims by the Task Force to have powers to the extent to prevent, detect, investigate crimes in Zambia and apprehend alleged offenders, such claims are ultra vires section 5 of the Zambia Police Act Chapter 107 of the Laws of Zambia. In this matter the order of certiorari is directed to Anti - Corruption Commission as shown in the amended application for Judicial Review. It was submitted further by the applicants that the fusion of the Task Force into the Anti - Corruption Commission did not negate the or nullify the decision which was made which is the subject of Judicial • , Review, in fact the respondent has not contended that the decision which is the subject of Judicial Review, is no longer in force following the said development the decision is still in force except that it is now under the jurisdiction of the Anti - Corruption Commission, the Task Force is now a department of the Anti Corruption Commission, hence the need to direct the order of certiorari to the commission and not to the Task Force itself. To fortify the applicant's case on the fusing of the Task Force into the Anti - Corruption Commission as a department counsel for the applicants cited the case of R Vs. The ,. Attorney General of Northern Rhodesia. Exparte Kenneth Allen {1963) Z & WRL 26 in which it was shown that although the decision which was the subject of Judicial Review was that of Federal body, which had ceased to exist at the time the court was moved, the said decision was still in force and of impact on the applicant, therefore submitted that, although the Task Force on Corruption was fused into the Anti - Corruption Commission in this case, this move did not nullify the work done by the Task Force on Corruption which resulted in the decision evidenced by the call outs as the records are now in the custody of the Anti - Corruption Commission. In the cited case above Justice Blagden stated that "the order of certiorari must be directed to some e individual or body, normally this will be the tribunal which conducted the proceedings, but where such tribunal has ceased to exist as such or where it has no longer the custody of the record, then the order must be directed to that authority in whom for the time being the dejure and the defacto record is vested. It is therefore counsel for the applicant's submission that in this case the dejure and defacto custody of the records which led to the decision, which is the subject of the application for Judicial Review is vested in the Anti - Corruption Commission, therefore the order of certiorari can be directed to the Anti Corruption Commission. The respondents in their response filed an affidavit in opposition and relied on the case of Council of Civil Service Union and others Vs. Minister for Civil Service {1984) 3 ALL ER 935 in their submissions, which outlines the three grounds upon which Administrative actions can be challenged. These are illegality, irrationality and • procedural impropriety. LORD DIPLOCK in this case stated that:- "by illegality as a ground for Judicial Review I mean that the decision maker must understand correctly the law that regulates his decision making power and must give effect to it. Whether he has or not in par excellence a justifiable question to be decided, in the event of a dispute, by those persons,_ the judges, by whom the Judicial power of the State, is exercised'~ The respondent submitted that the appliicants must show a meritorious case to the honourable court for them to be awarded the remedies they are seeking. The respondent argued that the applicants must first of all prove the illegality surrounding the creation of the Task Force on Corruption and its works and the call outs sent to the applicants. The respondent's contend that the application for Judicial Review on illegality is misconceived and has no merit and urged this court to dismiss it. The respondents argued that there was no illegality regarding the formation of the Task Force on Corruption for the reasons that, in the ministerial statement issued in parliament on the 29th of October 2009 by the then Vice President MR. GEORGE • KUNDA SC that the Task Force on Corruption was an adhoc institution that was established by the late President His Excellency DR. LEVY PATRICK MWANAWASA SC in July 2006 in exercise of his presidential powers, to investigate and prosecute of plunder of national resources and corruption during the reign of the late President DR. F. T. J. CHILUBA between 1991 and 2001 which fight has now ended and the plundered resources have not been fully recovered yet as many cases are still in court of law, this case is not an exception. Counsel for the respondent submitted that the President under article 33 (1) of the constitution of Zambia Chapter 1 of the Laws of Zambia, under this article the President has powers over defence forces in Zambia and the article states that:- • ''33(1} there shall be a President of the Republic of Zambia who shall be the Head of the State and of the Government and the Commander in Chief of the defence force." It was the submission of counsel for the respondents that the President can either exercise this power personally or can delegate to any person of his choice. Article 33(2) of the constitution chapter 1 of the Laws of Zambia provides that:- "33(2) the executive power of the Republic of Zambia shall be vest in the President and subject to the other provisions of this constitution shall be exercised by him either directly or indirectly through officers subordinate to him. " It is counsel's further submission that the creation of the Task Force on Corruption therefore was within the powers of the President to do so and that his jurisdiction extends to the Zambia Police Service, Anti - Corruption Commission and the intelligent . department of the Government. The Task Force on Corruption was later on formally established under article 61 of the constitution of Zambia and the same states:- "61 (1) subject to the other provisions of the constitution and any other Jaw, the powers to constitute offices for the Republic and the power to abolish any such offices shall vest in the president." The respondents submitted that on the strength of article 61 (1) the President created the Task Force on Corruption and consequently created the office of the chairman and appointed the office bearers of his choice in line with article 62(2) of the constitution cap 1 of the Laws of Zambia which article states that:- " Subject to the other provisions of the constitution and any other law, the power to appoint persons to hold or act in offices constituted for the Republic of Zambia, confirm appointments, to exercise disciplinary control over persons holding or acting in such offices and to remove any such person from office shall vest in the President." It was submitted by the respondents that it would be absurd for the President to create an office without stating such body to hold the office created. In line with the provisions of the constitution the 'Task Force'was an aggregate of duly commissioned officers of the Republic of Zambia and their mandate inter alia extended to investigations, arresting and prosecuting those found wanting. The President as commander in chief formed special or specialized group of officers to investigate and prosecute cases of plunder of national resources during the regime of the late President F. T. J. CHILUBA. The respondent's argument is that to do this the President did not need to issue a statutory instrument or take the bill to parliament for legislation; he could do this by • • • • mere pronouncement directed to his subordinates who are in this case the defence force. Toe respondent submitted further that the Task Force on Corruption comprised of members drawn from or seconded from the Zambia Police Force, Anti - Corruption Commission, Drug Enforcement Commission and Zambia Security Intelligence Services and assisted by private legal practitioners, the respondent therefore argued that there was nothing illegal about what the President did, as the formation of this group did not alter or extinguish the powers vested in the officers seconded to the Task Force on Corruption by the respective Acts creating institutions from which they were drawn, they still had the authoroity to arrest, investigate and summon those whom they feel have information relevant to criminal investigations they may be doing . Counsel for the respondents to strengthen the argument referred the court to the case of Shilling Bob Zinka Vs. The Attorney General (1991) SJ (SC) 9 in which the Supreme Court quoted the case of JK Steel Ltd Vs. Union of India AIR (1970) SC 1173 and stated that:- " There is no dispute that the officer who made the demand was competent to make the demand both under Rule a (2) as well as under Rule 10. If the exercise can be traced to a legitimate source the fact that the same was purported to have been exercised under different power does not vitiate the exercise of the power in question.,, Similarly counsel for the respondent cited the case of Hukum Chand Mills Vs. State of Madhya Pradesh {1984) SC 1329 the court stated that:- " It is well settled that merely a wrong reference to the power under which certain actions are taken by Government would not per se vitiate the action done if they can be justified under some other power under which Government could lawfully do these acts.,, It is therefore the respondents contention that acting under or summoning the applicants in the name of the Task Force on Corruption does not in any way change the substance of the powers and duties of these officers only that in this instance there was a specific task to be done, that Is, to fight corruption by Investigating, arresting and prosecuting those involved in corrupt activities, counsel for the respondent submitted therefore that, it is indeed unsustainable and misconception on the part of the applicants to argue that the Task Force on Corruption is an illegal institution rendering their work void. The respondents have argued further more that the Zambia Police under sections s and 14 of the enabling Act Chapter 107 of the Laws of Zambia, the Anti - Corruption Commission under the enabling Act No. 42 of 1996 section 9(1)(b)(l and ii) and section 22(1), the Drug Enforcement Commission under the enabling Act Narcotic Drugs and Psychotropic substances Act chapter 96 of the Laws of Zambia • under section 5 and 23 to 28 and 4(3) of the first schedule, officers have full powers of Police Officer with an exception of those declared to be support staff of which none of those seconded to the Task Force were declared so. The respondents therefore submitted that all those officers at the Task Force had powers to receive complaints, investigate, arrest with or without a warrant and prosecute found wanting under their respective Acts subject to the directions of the Director of Public Prosecutions. It was further submitted by the respondent that the powers of the security wings in this matter were intertwined together and they simultaneously applied their respective Acts together to deal with the problem for which the Force was created. The respondents argued further that section 9 of the Anti - • Corruption Commission Act No. (42/1996 and not the repealed cap 9(1) which deals, with the functions of the Anti - Corruption Commission, does not contain any exclusive clause on receiving and investigating complaints as alleged or suspected corruption of any offence under the Act. The proviso to section 9(1)(b)(ii) of the Anti - Corruption Commission Act states that:- "provided that nothing in this paragraph shall be considered as precluding any public prosecutor from prosecuting, subject to directions of the Director of Public Prosecutions, any offence under this Act which has come to the notice of the police during the investigations of an offence under nay written Law." Counsel submitted further that this is also the case with offences under the penal code cap 87 of the Laws of Zambia. Counsel for the respondents argued that receipt of complaints of alleged commission of offences or arresting is not exclusive. Anti - Corruption officers and Drug Enforcement Commission officers are vested with full powers of police officer afore mentioned, he argued further that any person from the public can effect an arrest on any person, who is found wanting provided fore under section 31(1) of the criminal procedure code chapter 88 of the Laws of Zambia which states:- 31(1.) "Any private person may arrest any person who, in his presence, commits a cognizable offence or whom he reasonably suspects of having committed a felony." Counsel to this effect submitted that it is not therefore correct to state that the Task Force on Corruption had no legal basis to receive complaints, summon, investigate, arrest and prosecute those found wanting, the Task Force was legally constituted and was composed by officers drawn from existing law enforcement agencies, the respondents therefore submit that this application has no merits and prays that it be dismissed with costs. I have considered this application carefully; I have referred to the submission filed by both parties in this matter. In considering this matter I will start with the genesis of the Task Force on Corruption since the gist of this application is its legality. As stated in the ministerial statement issued in parliament on 29th October 2009 by the then Vice President GEORGE KUNDA SC that the Task Force on Corruption was an adhoc institution that was established by the late President His Excellency DR. LEVY PATRICK MWANAWASA SC in July 2006 in exercise of Presidential powers, to investigate and prosecute cases of plunder of national resources and corruption during the reign of the late Republlcan President DR. F. T. J. CHILUBA between 1991 and 2001. 1 have noted that President MWANAWASA SC established the Task Force on corruption under artlcle 33(2) which gives a President of the Republic of Zambia executive powers which may be exercised either directly or through officers subordinate to him. The President further more establlshed the Task Force on Corruption under the powers conferred upon him by article 61(1) which gives a President powers to constitute offices for the Republlc and the powers to abolish any such offices. I have noted further that the President relled on article 61(2) which confers powers on e him to appoint persons to hold offices or act In such offices, to confirm appointments to exercise dlsclplinary control over persons holding or acting In such offices and to remove any of such people from office. The President therefore as also commander in chief formed a special group by appointing officers who were seconded to the Task Force on Corruption. These were officers from the Zambia Police Force, Anti - Corruption Commission, Drug Enforcement Commission and Zambia Security Intelligence Services who were assisted by private legal practitioners. It is worth noting that all these officers who were seconded to the Task Force on Corruption were commissioned officers. It was therefore In order for them to exercise their mandate given to them by their respective Acts, hence there was nothing wrong or illegal in the formation of the Task Force on Corruption . • These officers still had the authority to arrest, investigate and summon those they feel have the information relevant to any criminal investigations. As stated in the case of Shilling Bob Zinka Vs. The Attorney General (1991} SJ (SC} in the case of JK Steel Ltd Vs. Union of India AIR in which the Supreme Court stated that:- "There is no dispute that the officer who made the demand both under Rule 9(2) as well as under Rule 10. If the exercise of the power can be traced to a legitimate source, the fact that the same was purported to have been exercised under a different power does not vitiate the exercise of the power In question. I am therefore in agreement with the respondents that the fact that the applicants were summoned in the name of the Task Force on Corruption did not change the substance of the powers and duties of these officers, who at the end of their duty with the Task Force on Corruption returned to their respective security wings. It was therefore proper that the officer named herein as Chief Inspector ALFRED PHIRI issued the said call outs to the applicants to appear before the Task Force on Corruption at Woodlands Police Station since he was still a duly attested member of the Police Force, like all officers who were seconded to the Task Force on Corruption. For the fore going I find that the formation of the Task Force on Corruption. by the ,e President appointing duly attested officers from security wings did not alter or extinguish the powers of the officers vested in them by their various Acts, the officers had still the authority to arrest, investigate and summon those they felt had information relevant to any criminal investigation. There was therefore nothing illegal in the manner the Task Force on Corruption was formed by the late President and later on there was nothing illegal in the way the officers seconded to the Task Force performed their duties, suspects were interviewed, arrested, prosecuted and some were convicted and served their sentences and others are still appearing, property was recovered and they are still to recover more property from cases of plunder of national resources. I therefore find no merit in this application and I accordingly dismiss it with costs, in default of agreement to be taxed. ~ DELIVERED IN OPEN COURT AT LUSAKA THIS 7™ DAY OF FEBRUARY 2012 HON. MRS. JUSTICE CHRISTINE B. C. PHIRI HIGH COURT JUDGE 13