Lusaka lawyer and politician Elias Chipimo has written to the Law Association of Zambia to clarify it’s misleading and erroneous statement on the land which president Edgar Lungu acquired in Swaziland.
On Tuesday, the Law Association of Zambia said that the mere receipt of a gift of land by President Edgar Lungu does not, in itself, constitute a breach of Section 21 (1) (b) of the Anti-Corruption Commission.
LAZ also attempted in vain to mislead the public by deliberately writing in a vague manner on whether Lungu is a public officer.
But Chipimo told LAZ that accepting a gift connected to a public officer’s duty constitutes corruption.
Chipimo explained that Lungu did not need to abuse his office before accepting the gift but that it’s the accepting of a gift while on his official duties that makes it criminal.
Chipimo also explained to LAZ that public officer includes any person employed in the service of government whether by appointment or election and this clearly includes the president. Actually this is common sense.
ZWD comment: we know Zambia is a land of possibilities, but we never thought we will ever come across a lawyer or bunch of lawyers who doesn’t know that the president is a public officer. We will now investigate how and if these chaps in the current LAZ actually passed 0 levels before we even look at their university performance.
Ba Eddie Mwita sure, so all this time you were hiding your ignorance behind Linda’s bra?
Below is the full statement:
30th May, 2018
Law Association of Zambia
Plot No.1 Lagos Road
Receipt of a gift of land by the Republican President and Section 21(1) (b) of the Anti-Corruption Act
I refer to the official statement issued yesterday by the Council of the Law Association of Zambia (LAZ) regarding the controversial acceptance of a purported gift
Of land in eSwatini by the Republican President, Mr Edgar Chagwa Lungu. As an opposition leader I am concerned that our Head of State and Government can receive monumental gifts from foreign Heads of State while acting in his official capacity and there is only timid and fawning public debate about such a development.
The event is particularly troubling given the shifting explanations as to what actually happened and in whose name the title of the land was held at the time of its gifting.
Having reviewed the statement you issued, I am concerned that the LAZ opinion demonstrates two errors:
(a) In reference to article 266 of the amended Republican Constitution as part of the rationale in determining whether the Republican President is a “Public Officer” and
(b) In arguing that the mere receipt of the gift by the Republican President and of itself does not constitute a breach of Section 21 (b) of the Anti -Corruption Act, especially in the absence of evidence that the receipt of the gift preceded by either:
(i) Some “abuse” of “corrupt element”; and
(ii) Evidence that the acceptance was unreasonable or in some way prejudicial to the nation
Let me address each of these issues.
Does the definition of the “public officer” include the Republican President?
Although you draw the conclusion that the Republican President is indeed a “public officer” and therefore subject to the provisions of the Anti-Corruption Act, your argument is couched in somewhat speculative terms and does not appear to be grounded on the correct legal source. In pointing to article 266 of the amended Republican Constitution, you run the risk of muddying the waters of interpretation and allow some doubt to enter the path to your conclusion. There is a more straight forward answer to the conundrum question.
-The amended Republican Constitution defines the term “Public Officer” for the purposes of interpretation of that Constitution and not as a general definition to be applied to all statutes while the specific definition of public officer in the Anti –Corruption Commission Act is exclusively for purpose of determining whom this specific statute is intended to regulate.
-In fact Article 266 of the amended Republican Constitution starts with the words: “In this constitution” confirming that the terms defined are purely for purposes of interpreting the provisions within the constitution and not in any other law.
-This is made abundantly clear by the fact that the term “public officer” under the pre-amended Republican Constitution does not include an unpaid public official whereas in the Anti- Corruption Act – which was passed a long time ago after the pre-amended constitution includes both paid and unpaid public officials.
-The definition of Public Officer under the Anti-Corruption Act includes any person employed in the service of Government, whether appointed or elected, which would clearly include the Republican President.
Did the purported land gift violate section 21 (1) (b) of the Anti-Corruption Act?
For the purposes of examining whether the purported presidential land gift violates Section (21) (1) (b) of the Anti-Corruption Act, we can first of all summarize the position by stating that the offence of abuse of office under this section occurs:
(a) When a public official uses their official position to obtain property for themselves or another person; or
(b) When a public official uses information obtained as a result of their official functions to obtain “property an advantage or benefit” for themselves or another person.
The Section has to be read in conjunction with the definition of “casual gift” as set out in Section 3 of the Anti Corruption Act which stipulates that a gift must be one that is not “in any way connected with performance of a person’s official duty so as to constitute an offence under part III” is of course where Section 21 resides.
What this means is that:
1. Even a casual, modest or unsolicited gift will constitute an offence under Section 21 (1) (b) if it is in any way connected with a person’s official duty
2. A gift given as a gesture of goodwill will constitute an offence under Section 21 (1) (b) if it is in any way connected to person’s official duty.
3. The use of official position is what creates the offence of abuse of office and is what amounts to corruption. Section 21 (1) (b) does not say the offence occurs when someone abuses their official position but when one uses their official position meaning you only have to show that the property or benefit was acquired through the use of the official position.
4. To argue that the receipt of the gift has to have preceded by abuse or evidence that acceptance of the gift was prejudicial to the interests of the nation would defeat the entire purpose of Section 21 (1) (b). We can use a simple analogy to amplify this point: if the law was to state that to enter parliament buildings after 18:00 hours is an offence of entering the building after the stipulated hour, prosecutors would have to show that the offending person entered the building before they had actually entered it.
5. There is no requirement under Section 21 (1) (b) to show the receipt of a gift has to be preceded by evidence of abuse. That act of using one’s official position to receive any gift is what constitutes the abuse, not the action before receiving the gift.
6. In summary, accepting a gift that is given as a gesture of goodwill constitute an offence of abuse of office if that gift is connected to the performance of a person’s official duty, no matter how small. This is clear when you look at the construction of the definition of “casual gift”. The simple question to be answered by the Republican President is this: “Did he or she not receive eSwatini land in the course of the performance of his official functions”? The question is not: “Did he abuse his office before accepting the gift”, as your opinion would have us believe.
It is possible that the matter will only ultimately be settled by the courts of law but I thought it prudent to set out my summation of the key arguments underlying his important national debate.
Elias C. Chipimo