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IN THE SUPREME COURT FOR ZAMBIA SCZ JUDGMENT NO. 2 OF 2004

HOLDEN AT KABWE AND LUSAKA APPEAL No. 44 of2003

(Criminal Jurisdiction)

BETWEEN:

DR FREDRICK JACOB TITUS CHILUBA APPELLANT

AND

THE PEOPLE RESPONDENT

CORAM: SAKALA, CL, LEWANIKA, DCL, AND CHIRWA, JS

On 6th August, 2003 and 27th January, 2004

For the Appellant: Mr. R.M. Simeza and J. P. Sangwa, of

Simeza Sangwa and Associates

For the Respondent: Mr. C.F.R. Mchenga, Chief State Advocate

JUDG MENT

Sakala, CJ., delivered the judgment of the court.

When we heard this appeal on 6th August 2003 at Kabwe, we

announced our decision and dismissed the appeal. We directed and ordered

that the trial in the Subordinate Court should proceed without any due delay.

We made no order as to costs since the appeal originated from a criminal

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matter. We indicated then that we shall give our reasons in a written

judgment. We now give our reasons.

This is an appeal against the Ruling of the High Court refusing the

appellant’s application for an order to change venue of hearing in a criminal

matter in which he was appearing before the Subordinate Court so that the

case be tried by the High Court of Zambia sitting at Lusaka.

The history and the facts of the appeal were not in dispute. The

appellant, a former President of the Republic of Zambia, enjoyed immunity

from criminal prosecution before the immunity was removed by a resolution

of the National Assembly. Following upon the removal of the immunity, the

appellant commenced an action in the High Court by way of an application

for judicial review, challenging the motion of the National Assembly

removing his immunity. His application was unsuccessful in the High

Court. His appeal to the Supreme Court was also unsuccessful.

The appellant was subsequently interviewed by, among others, the

Zambia Police Service. He was arrested and jointly charged with others

with several counts of theft by Public Servant, contrary to Sections 272 and

277 of the Penal Code, Cap. 87 of the Laws of Zambia.

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On 24th February 2003, the appellant and others appeared before the

Principal Resident Magistrate. He was granted bail in the aggregate sum of

KI.5 billon in his own recognizance. He was asked to surrender his passport

and provide six sureties.

Following upon his appearance before the Principal Resident

Magistrate, the appellant commenced proceedings in the High Court by way

of an Originating Notice of Motion, pursuant to Section 80(1) (a) (b) (c) and

sub-section (3) of the Criminal Procedure Code, Cap 88 of the Laws of

Zambia, seeking for an order for change of venue that he be tried by the

High Court instead of the Subordinate Court. The application was supported

by two affidavits, which affidavits exhibited, among others, the resolution of

the National Assembly, removing his immunity and copies of the charge

sheets. There was also an affidavit in opposition.

The learned Judge considered the affidavit evidence and summarized

the four grounds in support of the application as being:-

(1) That a fair and impartial trial cannot be heard in the

Subordinate Court as guaranteed under Article 18 (1) of the
Constitution of Zambia for reasons stated in the Affidavit filed
herewith;
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(2) That several questions of Law of unusual difficulty are likely to

arise, namely;

Whether the Applicant was a public servant within the meaning

of Article 139 (1) of the Constitution, and if so whether he can
be charged with offences such as theft by public servant or
abuse of office in the light of the provisions of Articles 43 (2)
and (3) of the Constitution of Zambia.

(3) That whether he can be charged for offences or allegations,

which were not disclosed to the National Assembly when they
passed a resolution to lift the Applicant’s immunity in line with
the provisions of Article 43 (3) of the Constitution.

(4) That these and several other constitutional issues can only be
determined by the High Court in terms of Article 28 (2) of the
Constitution of Zambia and that therefore such an order is
expedient for the ends ofjustice herein.”

After setting out the provisions of Section 80 (1) and (3), the learned

Judge found that the Section empowers the High Court to change the venue

for trial either before another Court or before itself whenever it is made to

appear to the Court that grounds as contained in paragraphs (a) (b) and (e) of

Section 80 exist. Dealing with the specific grounds as set out above, the

learned Judge found that there was no basis in the ground alleging that the

appellant cannot have a free, fair and impartial trial in the Subordinate Court

as guaranteed by Article 18(1) of the Constitution on the basis of bias

against him. On the ground alleging several questions of law of unusual

difficulty likely to rise, namely; whether the appellant was a public servant
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3. Subordinate Court as guaranteed under Article 18(1) of the

Constitution of Zambia.

4. That the learned Judge grossly erred both in law and in fact in
holding that whether several questions of law of unusual
difficulty are likely to arise is a matter of evidence, which can
only be determined after hearing evidence.

5. That the learned Judge erred in law when he held that the
resolution by the National Assembly allows the Applicant to be
charged with any criminal offence for any act committed by
him.

6. That the learned Judge misdirected himself in holding that

because there were other persons jointly charged with the
appellant, the Court could not make an Order affecting them
without hearing them, which issue was never raised before the
Court.

On behalf of the appellant written heads of argument based on the five

grounds were filed, supplemented by oral submissions. In his opening

address, Mr. Simeza informed the court that in arguing the five grounds, the

first ground was to be highlighted and that the arguments on the first ground

would swallow most of the grounds with the exception of ground five.

The gist of the written and oral heads of argument and submissions on

the first ground as argued, first by Mr. Simeza and secondly by Mr.

Sangwa, is that in an application for change of venue under Section 80 of the

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Criminal Procedure Code, the appellant’s obligation and what he needs to do

is simply to make it “appear to the High Court” that either a free, fair and

impartial inquiry would not be had in the Subordinate Court; or that some

questions of law of unusual difficulty are likely to arise in the matter. It was

submitted that the appellant had demonstrated that a fair and impartial trial

would not be had in the Subordinate Court and that some questions of law of

unusual difficulty were going to arise and not likely to arise. It was pointed

out that in the Court below, it had been argued that the action was not

frivolous by reference to various comments and utterances that had been

made and continued to be made by His Excellency the President on the

charge of the appellant which utterances had prejudicial effects on the

proceedings before the Court. In the written heads of argument, it was

argued that reference to Article 18 (1) of the Constitution was made to show

that a fair and impartial trial in terms of that Article could not be had as fair

trial means “all persons shall be equal before the court.” Other references

made in the court below related to harsh bail conditions imposed by the

Subordinate Court to illustrate the disposition of the court. It was argued, in

the written heads, that for a free and fair trial to be held, the judiciary must

be independent; but that in the instant case, the appellants’ contention was
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that there was evidence that the Executive Branch of Government, in

particular the President, had the capacity to control and direct the judiciary

in the discharge of its function. It was pointed out that the appellant’s case

had been the subject of comment by the Republican President, which

comments were highly prejudicial to the appellant.

In the written and oral arguments, it was also pointed out that it had

been demonstrated in the Court below that the appellant was intending to

originate an application to enforce the provisions of Article 18 and that such

application could not be heard in the Subordinate Court in the light of

Article 28 (2) of the Constitution. It was submitted that the provisions of

Article 28 (2) of the Constitution had been seriously undermined by die

President and by the Task Force’s broadcasts which were made to convey

the message that the appellant was guilty of the charges against him,

notwithstanding that the trial had just started.

In his arguments on ground one, Mr. Simeza made reference to the

properties shown on television as being assets plundered from the nation’s

coffers which demonstrated that the appellant could not have a fair trial. Mr.

Simeza argued and submitted that the issues were never raised in the Court

below for the court below to determine at that stage, but raised to illustrate
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the seriousness of the matter and to underscore the issue that they could not

be raised before the Subordinate Court unless a venue of the case was

changed. Mr. Simeza submitted that the appellant had raised the various

issues, to show the merit of the application to change the venue.

According to Mr. Simeza, the practice in the High Court is that

applications under Section 80 of the Criminal Procedure Code are granted as

a matter of course and that the applicant need not prove anything.

In the written heads of argument, submissions were also made based

on ground one in relation to questions of law of unusual difficulty likely to

arise. But these are the very submissions that are the basis of ground three

which were said to form the second issue of ground one. The gist of what

was termed the second issue on ground one is that the appellant had been

arrested and charged with a criminal offence on the premise that Article

43(3) of the Constitution had been satisfied. According to the written heads,

both the High Court and the Supreme Court had not determined the province

of the activities or actions that can be said to have been done by the

President in his personal capacity and those done in his official capacity.

This issue, according to the written heads, had to be resolved before trial

could begin, which issue could not be resolved by the Subordinate Court. A
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number of matters were raised under this second issue of ground one among

them the extent of executive power, Article 44 relating to functions of the

President, allegations made by the President in his address to Parliament and

the appellant being charged with the offence not founded on the allegations

made by the President. The submission was that the Subordinate Court

could not competently address these issues and had no capacity to determine

the constitutional issues.

A careful examination of these arguments, shows that they cover

ground two which ground was briefly covered by Mr. Sangwa who

contended that the references were made merely to demonstrate that there

was no likelihood of a free and fair trial and hence the need to have the

matter transferred to the High Court.

According to Mr. Simeza, they had given the instances to the court to

try to demonstrate and not to ask the court determine anything as no

application yet had been made before the High Court but that this was

merely an application for change of venue.

Mr. Sangwa argued grounds 3, 4 and 5. The brief written and oral

heads of argument by Mr. Sangwa on ground three were that the issues

canvassed by the appellant were mostly questions of law, which required no

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evidence to be determined and, by their very nature, required determination

before trial.

On ground four, alleging error on the part of the learned Judge in

holding that the resolution by the National Assembly allowed the appellant

to be charged with any criminal offence for any act committed by him, the

short arguments were that the issue of the resolution was raised for the

purposes of illustrating the fact that there were serious issues to be tried

before the appellant’s charges could be heard and determined, but too

difficult for the Subordinate Court to resolve. Counsel contended that

issues raised by Article 43(3) had not been articulated by the High Court and

the Supreme Court even if the resolution of the National Assembly

permitted the arrest and prosecution of the appellant.

On ground five, which alleged misdirection on the part of the learned

Judge by holding that because there were other persons jointly charged with

the appellant and that the court could not make an order without hearing

them, the submissions were: that the parties never canvassed the issue; that

the court fell into serious error; that the court was under obligation to only

consider issues raised in the documents before it; that the concerns about
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parallel trials were unfounded; and that the order for change of venue cannot

affect or prejudice any of the parties to the proceedings.

Mr. Mchenga, in his short reply to the first four grounds, made

references to the paragraphs in the judgment in which the learned Judge

gave reasons for his findings. In addition, he adopted his submissions in the

court below. On the fifth ground, Mr. Mchenga submitted that an

opportunity should have been given to the other accused if an order for

change of venue had to be made. Mr. Mchenga supported the findings of the

learned Judge on ground five.

We have very seriously addressed our minds to the judgment of the

learned Judge and to the detailed and spirited submissions on behalf of the

appellant. The arguments and the submissions on behalf of the appellant

did not follow the order of the grounds of appeal. For this reason, we shall

deal with grounds one and two as one ground. According to Mr. Simeza, in

an application to the High Court for change of venue made pursuant to

Section 80 of the Criminal Procedure Code, an applicant has no obligation to

prove anything, but “simply” make it “appear to the High Court,” for

instance, as in the case at hand that a fair and impartial trial could not be had

in the Subordinate Court; and that some questions of law of unusual

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difficulty were likely to arise. We have difficulties in accepting this

argument. Firstly, under Section 80, the High Court has a discretion to

change venue. Secondly, to exercise its discretion, it must be “made to

appear” and not just “simply” appear as contended or just list instances. The

phrase “Whenever it is made to appear to the High Court “- has, in our view,

not only been misunderstood but over simplified. Indeed, the word “simply”

as used by Counsel does not appear in the Section. In our view, the phrase

“Whenever it is made to appear” must be understood to mean whenever it

has been established to the satisfaction of the High Court.

We cannot accept the proposition that there exists, in the High Court,

a practice that applications for change of venue made under Section 80 are

granted automatically. While we agree that the High Court was not called

upon to determine the issues of bias, the court had nonetheless to be satisfied

on the available affidavit evidence that a case of bias had been made to

appear. As we have already observed, “made to appear” must mean to

establish and not merely to make references or demonstrations. A reference

or demonstration on its own does not amount to establishing what is referred

to or demonstrated therein.
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Article 18(1) of the Constitution guarantees a fair hearing in all the

courts of the Judicature to any person charged with any criminal offence.

Thus, a fair hearing is not only available or limited to the High Court.

Counsel’s arguments seemed to suggest that Article 18 guarantees a fair

hearing only in the High Court. This is not correct. Article 18 guarantees a

fair hearing even in the Subordinate Court. Indeed, if the appellant was

aggrieved with the conditions of the bail imposed by the Principal Resident

Magistrate, he was entitled to apply to the High Court for variation of the

conditions. This he did not do. But we cannot accept that harsh bail

conditions was evidence of bias and that the appellant could not have had a

fair hearing before the Subordinate Court.

We have perused the record of appeal. We have not found evidence

that the Executive Branch of Government was controlling the Subordinate

Court in the discharge of its functions. However, we disapprove any

comments or broadcasts from any quarter, on a matter pending in court.

However, the mere desire to apply to court to restrain anyone commenting

on a matter before court, cannot amount to evidence establishing bias. We

take note that the appellant neither applied before the Subordinate Court nor

High Court to enforce the provisions of Article 18 of the Constitution. The

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learned Judge was, therefore, on firm ground in holding that the provisions

of Article 28(2) can only be invoked in the Subordinate Court when a

constitutional question is raised. Truly such question or application was

never raised or made before the Subordinate Court. The court correctly held

that Article 28(2) had no application in the proceedings that originated in the

High Court.

We agree that the appellant raised many issues in his application. But

we cannot say that by merely listing and citing those issues, he made it

appear to the High Court “that he was unlikely to receive a free and fair trial

to warrant the court exercise its discretion to order change of venue. In fact,

some of the issues raised were totally irrelevant to the application for change

of venue. For instance, issues centred on Article 18 and 28(2) had no

relevance at all to the application for change of venue because there was no

application either in the Subordinate Court or in the High Court based on

those Articles.

We are satisfied that the court below properly adjudicated on the

relevant issues raised before it in an application for change of venue. The

determination of the issues raised was therefore not premature. This appeal

based on ground one therefore fails.

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Our conclusions on ground one also resolve the arguments on ground

two which attack the learned Judge’s finding that there was no basis in the

ground alleging that the appellant may not have a free, fair and impartial

trial before the Subordinate Court as guaranteed under Article 18(1) of the

constitution. At the expense of repetition, Article 18(1) guarantees a free,

fair and impartial trial in all the courts in Zambia. Ground two also fails.

The third ground attacks the learned Judge’s holding that whether

several questions of law of unusual difficulty are likely to arise was a matter

of evidence to be determined after hearing evidence. This ground, both in

the written and in the oral arguments was not argued with any serious

vigour. For our part, we agree with the learned Judge that whether the

appellant was a public servant to be charged with offences of theft by public

servant or abuse of authority is a matter of evidence and or defence. The

arguments based on this ground had no relevance to an application for

change of venue. We are, however, baffled that the issue was even raised in

an application of this nature. We take judicial notice that the appellant’s

trial has since commenced before the Principal Resident Magistrate. But we

are constrained to observe that the manner ground three was argued suggests

that on a charge of theft by public servant one cannot be found guilty of theft
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if he is proved not to be a public servant. Regrettably, that is not the law in

Zambia. This ground three also fails.

Hie fourth ground, also half heartedly argued, was that the learned

Judge erred in law when he held that the resolution by the National

Assembly allows the appellant to be charged with any criminal offence for

any act committed by him. According to the arguments by Mr. Sangwa, the

issue of the resolution of the National Assembly was raised for purposes of

illustrating the fact that there were serious issues to be tried before the

appellant’s charges can be heard and determined but that these issues were

too difficult for the Subordinate Court to resolve. It was also argued that

there was need to determine whether the position taken to arrest and to

prosecute the appellant was consistent with Article 43(3) of the Constitution

as the High Court and the Supreme Court did not articulate the issue.

The raising of this ground too baffles us. First, issues in a trial are not

raised for purposes of illustrating a fact but establishing facts. Secondly, we

are alive to the fact that both Mr. Simeza and Mr. Sangwa represented the
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appellant in Appeal No. 125 of 2002 (now known as the immunity case) in

which the appellant had challenged, before the High Court, the decision of

the National Assembly removing his immunity in terms of Article 43(3). In

that case, we said:

“Mr. Sangwa further argued that Article 43(3) sets out pre­

conditions before a prosecution against a former Head of State can be

initiated. He submitted that before immunity can be lifted, charges

must be known and must exist. He submitted that this was not the case

h<?re. We are inclined to conclude that these arguments take us into

considering the merits of the decision of the National Assembly. This,

our view, would be against the spirit, the scope and the purpose of the

remedy of judicial review. We decline to address ourselves to these

arguments, forceful as they may be though. However, the plain

meaning of Article 43(3) does not stipulate that specific charges have to

be presented to the National Assembly before immunity of the former

President can be removed. Immunity can be removed even for a

purpose of making a former President amenable to the criminal

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jurisdiction of the court. Amenability to criminal jurisdiction can

envisage allegations of criminal conduct, which in essence, was the gist

of the President’s address to the National Assembly.”

We find it extremely surprising that Mr. Sangwa should reopen the same

arguments in the High Court and in this court in this case. In our view, this

is a question of Mr. Sangwa and Mr. Simeza refusing to accept the judgment

of the court because they do not agree with it. But Counsel are expected to

accept the finality of decisions of superior courts whether they agree with

them or not. The position taken by Counsel in our view has not been in the

interest of their client because it has led to unnecessary delays, adjournments

and costs. We stand by what we said in the immunity case. The resolution

of the National Assembly allowed the charging of the appellant with any

criminal offence committed by him. This ground four of appeal fails.

The fifth ground was that the learned Judge misdirected himself by

holding that because there were other persons jointly charged with the

appellant, the court could not make an order affecting them without hearing

them. The short arguments on this ground were that the parties in the court
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below did not canvass for this issue; that the court fell into serious error; that

the court was under obligation to only consider issues raised in the

documents presented before it; that the concerns about parallel trials were

unfounded and that an order for change of venue could not affect or

prejudice the parties to the proceedings.

We agree that the issue was not addressed and canvassed. But we

cannot accept that the issue was not raised. The appellant’s affidavit

evidence exhibited charge sheets showing various counts charging the

appellant jointly with others. We are satisfied that the issue was raised. The

learned trial Judge was entitled to consider the effect of granting an order for

change of venue to the appellant alone. For our part, fears for a parallel trial

were genuinely founded by the learned Judge.

We do not believe that Counsel was serious when they submitted in

the written heads of argument that the order for change of venue could not

affect or prejudice the co-accused. The very difference acknowledged by

Counsel that the appellant would have been tried by the High Court while

the co-accused would have been tried by the Subordinate Court would have
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caused not only the inconvenience but also the prejudice and embarrassment

to both courts. Ground five also fails.

For the foregoing reasons we dismissed the appeal.

D.M. LEWANIKA
DEPUTY CHIEF JUSTICE

D.K. CHIRWA
SUPREME COURT JUDGE