Ronald Kaoma Chitotela v The People (APPEAL NO. 52/2023) [2023] ZMCA 272 (15 November 2023)

--- IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO. 52/2023 HOLDEN AT NDOLA {Criminal Jurisdiction) BETWEEN: RONALD KAOMA CHITOTELA APPELLANT AND THE PEOPLE RESPONDENT Coram: Mchenga DJP, Muzenga and Chembe, JJA On: 23 August 2023 and 15th November 2023 rd For the Appcllanl: K. Kombe with L. S. Chirwa, Andrew Mwelwa and Partners and B. Mwelwa, Phiri and Partners For the Responden t: G. Zimba, Deputy Chief State Advocate, Authority National Prosecution JUD GME N T Mchenga DJP delivered the Judgment of the court. Legislation referred to: 1. The Anti-Corruption 2. The Forfeiture Act, No. 3 of 2012 of Proceeds of Crime Act, No.19 of I J2 INTRODUCTION c11 This is an appeal from the decision of the High Court, declaring that the settlement agreement (the agreement) between the appellant and the Anti-Corruption Commission (the Commission), was invalid and ineffective. BACKGROUND c21 In 2019, the appellant was arrested by the Commission and charged with one count of the offence of Concealing Property, contrary to Section 71(1) of the Forfeiture of Proceeds of Crime Act and 8 counts of the offence of Possession of Proceeds of Crime, contrary to Section71 (1) of the Forfeiture of Proceeds of Crime Act. CJJ He was taken to court, but before the commencement of the trial, and pursuant to Section 80 of The Anti­ Corruption Act, he entered into the agreement with the Commission. C4J The agreement was registered in the Subordinate Court on the 24th of June 2019 and no prosecution took place. One of the conditions of the agreement, was that the appellant had made "a full disclosure". I J3 cs1 On 4·r May 2022, the Commission arrested the appellant on the charges that the agreement covered. C6J The Commission publicly announced that they had arrested the appellant because he had failed to meet the terms of the agreement, by not making "a full and Lrue disclosuren. Pl When the appellant was arraigned before the Subordinate Court on the charges that are the subject of this appeal, he objected to the charges on the ground that they were covered by the agreement and he was immune from prosecution. ca1 The trial Magistrate upheld the objection, finding that the agreement was valid as it had not been seL aside by any court. C9J The appellant was then discharged. c101 The Commission appealed against Lhat decision. APPEAL BEFORE THE HIGH COURT c111 Although the Commission argued LhaL Lhe settlement agreement was just an undertaking and oust it couJd noL the jurisdicti on of the courts, the appeal was determined in their favour for a different reason. / [12) The High Court noted that under Section 80(3) of the J4 Anti-Corru · ption Act, the Commission • . can only enter into . such an agreement before criminal proceedings have been instituted. C13J In this case, the agreement was entered into after the appellant had already been arraigned. ll4J The High Court then held that the agreement was of no effect because it was entered into after criminal proceedings had already been instituted against the appellant. c1s1 The court then set aside the decision of the Subordinate Court discharging and the appellant, directed that the trial proceeds on the charges on which he had been arraigned. APPEAL BEFORE THE COURT OF APPEAL AND DECISION OF THE COURT c16J Examination of the six grounds of appeal to this court, and the arguments in support of and against, indicate that the gravamen of the appeal is, whether the fact that the appellant was taken to court before the agreement was entered into, rendered the agreement a nullity. 7 JS [17] Section 80(3) of the Anti-Corruption Act, the law on whose basis the agreement was entered into, provides as follows: "The C ommission may tender an undertaking, in . . writing, not to institute criminal proceedings against a person who- (a) has given a full and true disclosure of all material facts relating to past corrupt conduct and an illegal activity by that person or others; and (b) has voluntarily paid, deposited or refunded all property the person acquired through corruption or illegal activity" c1e1 The provision is clear and unambiguous, on the Commission having the power to indemnify a person from a prosecution, where that person has made a full and true disclosure of all material facts relating to past corrupt conduct or illegal activity, and that person has voluntarily paid back or refunded, all the property acquired through the corrupt conduct or illegal activity. c19J The question that then follows, is, was the appellant indemnified from a criminal prosecution before the criminal proceedings were instituted? c201 The appellant was arrested twice. J6 The first time he was arrested was in 2019. on or about 4th May 2022, he was arrested for the second time. As for the agreement, it was signed on or before the 24th of June 2019, when it was registered in court. c231 The charges that are the subject of this appeal are those laid on the appellant following his arrest on 4th May 2022, which was after he had entered into the agreement. C24J It follows, that the prosecution which is the subject of this appeal, was instituted was after the agreement signed. c2s1 That being the case, the High Court erred when it concluded that the appellant could not rely on the agreement because it was entered into after the prosecution had already been instituted. c261 Going by their public pronouncement, the Commission's grievance with the appellant is that he did not make a full disclosure, was when the agreement signed. c211 In our view, such a complaint is attended to by the Commission moving the Subordinate Court, the court before which the agreement was registered pursuant to J7 Section 80(4) of the Anti-Corruption Act, to discharge it for the breach of its terms. c2e1 Section 86 of the Anti-Corruption Act, has provided that in such a case, the Subordinate Court is moved by originating summons. c291 In effect, we find that the appeal has merit and we allow it. VERDICT C30J The order of the High Court discharging the agreement signed between the appellant is set and the Commission, aside. C31J The appellant is still immune from prosecution for the activities covered by the agreement, until such time that the agreement is discharged by a competent court. . F. R. Mchenga DEPUTY JUDGE PRESIDENT K. Muzenga COURT OF APPEAL JUDGE Y. Chembe COURT OF APPEAL JUDGE ····················�············ ············