The amnesty or prosecution of Faith Musonda: what should have happened, a contribution

The reaction of most people to the amnesty of Faith Musonda for forfeiture of the massive proceeds of crime that she was found with demonstrates some fundamental misunderstandings of the law on this issue by many Zambians. Faith Musonda gives a great opportunity for a teachable moment analysis.

Many people have expressed pain that this criminal is allegedly allowed to walk away scot-free. They think she walked away scot-free with impunity. Many people wanted a catharsis of sorts by seeing Faith Musonda get arrested, charged, put in handcuffs, detained, tried and sent to prison as a deterrent to others, especially the big fish involved in the looting of public resources. This didn’t happen and thus causing great anguish to them. In their mind and expressed view on social media and emails and phone calls and WhatsApp messages to some of us who teach criminal law and have the privilege to write a legal column, a lot of people feel betrayed that the criminal escaped with impunity.

The aim of this article is to try to disabuse many Zambians that what happened here is beyond the pale and that something improper was done by the state to appease obviously guilty individuals like Faith Musonda. The expressions of many Zambians demonstrate once again that many Zambians don’t read the law on which they express their opinions and it is a well-known fact that Zambia’s reading culture is poor. This culture extends to lack of reading and familiarity with the law and legislation on which Zambians comment. Here, I am not stating that people must not express their opinions. But they must do so reasonably by way of inquiring rather than be adamant that their opinions and feelings must be the guiding force rather than what is in the law as expressed by the legislature. Morals and feelings are not laws though they may be the basis of some future laws through the filter of Parliament. That is why in every country every day in this world there is talk about legal reforms in which to make some people’s morals and feelings, the law of the land. Until that happens, what is on the books is the law but criticism of the law or its interpretation is fair game; not ignoring it entirely.

In relation to what happened to Faith Musonda, a lot of people do not know that what happened there is actually in the law and the relevant law is the Anti-Corruption Commission Act, particularly Section 80. That section provides for use of discretion on the ACC to proffer amnesty in exchange for forfeiture of proceeds of crime as well as full disclosure of information pertinent to the crime. The law provides for abandoning any possible prosecution under the circumstances. Of course, the state doesn’t have to engage in this but the law provides for engaging in this exchange. All amnesties in the entire world and historically are premised on an amnesty in exchange for full confession, disclosure, forfeiture and lack of prosecution and sometimes reparations are provided for. The most comprehensive Amnesty programme in modern history is the recent Truth and Reconciliation Commission in South Africa. It is available on the internet. The Zambian ACC Act is just a tiny component in the thousands of genres of amnesties historically and around the world. Section 80 relates to its use in Zambia in our present situation; an example pertaining to Faith Musonda on the issue of proceeds of crime. It comes in form of a standing piece of legislation rather than an adhoc commission of inquiry. Amnesties also happen everyday in Zambian and other courts in form of plea bargains where some charges are dropped in exchange for a guilty plea on others or a longer jail sentence is avoided for pleading guilty and saving state resources and also avoiding the risk of an acquittal if there is a protracted trial. The outcome of a trial is an uncertain gamble. And that is something many Zambians have not paid much attention to and I turn my attention to the uncertain outcome of a trial.

Many Zambians who have commented or approached me on the Faith Musonda case have expressed the view that she was going to be convicted 100 per cent and would have been sent to jail to serve her time and provide a deterrent example to others. Not so fast to come to conclusion! Have you forgotten what happened in the recent past in the Ronald Chitotela and Chitalu Chilufya cases? President Levy Mwanawasa was a most ardent leader so far in fighting corruption including setting up a taskforce dedicated to fighting and prosecuting corruption cases. How many convictions did Mwanawasa secure? Many rich individuals defeat charges of corruption, not only in Zambia but across the world. In all jurisdictions money does make a difference as to who walks and who goes to jail. Not all the time but most times. The rich can afford to hire the best lawyers. And best lawyers mean best connections to judges and prosecutors and can hire their own investigators. I practiced law in Canada for 25 years at the highest levels and I studied the system very closely and write voluminously about it. It is the same or similar system in the US, Zambia, South Africa, etc. This is the general rule but not necessarily the specific rule. Some rich people fall.

Back to corruption. Corruption cases are very difficult to prosecute even with the best of state resources and capable judges and prosecutors and investigators because the chain of evidence gets broken at intervals or the trail disappears by proceeds entering into legitimate banking through legitimate law firms, accounting firms, business establishments, etc in the process raising reasonable doubt as to the guilty of the accused. I used to defend a lot of fraud cases and I could see reasonable doubt a mile away. And criminals are not a stupid genre of human beings. They don’t leave themselves open to detection or conviction. Even when they get detected and arrested, charged and prosecuted they have already set up traps for reasonable doubt sprinkled all over. There is no guarantee that Faith Musonda would have been convicted at all. And that is why section 80 of the ACC Act exists. That is why plea bargains exist. That is why amnesties and commissions rather than prosecutions alone, exist, to give the system a chance to retrieve something rather than gamble everything with a possibility of losing all. Amnesties are done in the public interest just as prosecutions in some cases instead of offering an amnesty are in the public interest. Such decisions are not lightly taken. Nolle prosequi exists on similar public interest considerations and raises analogous issues to amnesty.

All regimes have pondered on effective prosecutions of proceeds of crime and possession cases and came up with the device of reverse onus scenario where it is the accused who must demonstrate the source of the alleged proceeds of crime. If the accused can’t prove where they got their wealth it is proof beyond a reasonable doubt that their possessions are proceeds of crime. Not so fast. The concept or device of reasonable doubt still applies even in a reverse onus situation. The judge or the jury could still be persuaded that the explanation of the accused if it demonstrates an “air of reality” or “believable even if incredible/false explanation”, the accused could walk. The character of the judiciary, the training and ethos of the prosecutors and investigators and the political will and or lack thereof in fighting corruption all converge to conspire to let the corrupt go Scot free, or not.

Faith Musonda no doubt has given a lot of information which could assist the investigative agencies in their further investigations and probably that information could lead to discovering more looted property and leads to arresting and prosecuting bigger fish. Here I am merely using educated and informed speculation. I have no evidence what the future direct or collateral repercussions of the Faith Musonda disclosures will be but disclose she did do that. And everything was and is legal pursuant to the law.

Zambians should take an interest in not only reading the ACC Act but they must read also the Constitution, the Electoral Process Act, the Penal Code, the Criminal Procedure Code, the Public Procurement Act and all or most laws of Zambia as enacted by Parliament. Most of these laws should be part of the education curriculum from primary school to university. Civics and civic education do not teach the actual laws of Zambia. I go a step further, all laws of Zambia must be translated into major vernacular languages that are taught in schools. And those who wish to debate must first have read the pertinent laws and that will raise the level of informed questioning of the laws and level of debate. Is anyone opposed to informed debate? Democracy gains significantly when the population is highly informed and engaged. All the laws are on the internet and the various websites of government, Parliament and the Judiciary. Reading the law as is should not only be the preserve of the current students of ZIALE but must be for every Zambian resident, particularly citizens. With the prospects of constitutional reform in the next five years, let’s all get busy reading the laws of Zambia, beginning with the ACC Act then the Constitution Act No. 2 of 2016 down on to the rest.

The author is the Dean of the Zambian Open University School of Law but the views expressed herein are his own. His latest book is Commentaries on the Laws of Zambia(2021).

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