Falana replies ex-Zambian president who threatened legal action against Nigerian activist

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A human rights lawyer, Femi Falana, has responded to a threat by a former President of Zambia to institute contempt proceedings against a Nigerian activist over a newspaper article by a Lusaka based newspaper.

Rupiah Banda, who was Zambia president between 2008 and 2011, accused Olanrewaju Suraju of the Civil Society Network Against Corruption, CSNAC, of undermining court proceedings by speaking about an ongoing legal matter.
The Post, a Zambian newspaper, had published an article on April 16 titled ‘Nigerians to follow their oil money in Zambia’ where it quoted Mr. Suraju as saying that Nigerians are ready to mount pressure on President-elect, Muhammadu Buhari, to demand repayment of money realized from an oil concession deal with the Zambian government.
Mr. Suraju was reacting to an investigation by Mutembo Nchito, Zambia’s Director of Public Prosecution, of the former president for allegedly diverting the proceeds of the oil concession deal.
But the former Zambian president described the publication as “contemptuous and meant to undermine court proceedings as there is a matter currently going on before court relating to the said article.”
Mr. Banda, who wrote through his lawyers, directed Mr. Suraju to retract his statement or face arrest and trial for contempt of court.
Between 2011 and 2012, the Zambian government received 20,000 barrels of crude oil daily from the Nigerian government at a heavily subsidised rate.
Mr. Nchito, who is prosecuting Mr. Banda and his son, Henry (who had fled to South Africa), is now facing a tribunal in Lusaka over charges of abuse of office.
Mr. Banda is suspected to be the brain behind the state-sponsored prosecution of Mr. Nchito.
In his response, Mr. Falana said that there is no legal justification for the former Zambian president to threaten his client (Mr. Suraju) with contempt of court based on his statement in the said article.
“More so, that he was only exercising his human right to freedom of expression guaranteed by Article 9 of the African Charter on Human and Peoples’ Rights,” said Mr. Falana, a Senior Advocate of Nigeria.
“Since our client has neither accused any judge of bias nor exposed the judiciary of Zambia to ridicule in any manner whatsoever, you may wish to direct the attention of your client to the case of The People v. David Masupa, High Court (1977) Zambia L.R. 226 where it was held that what was required to prove contempt was an express allegation of bias on the part of a judicial officer.
“However, should you decide to embark on contempt proceedings in the circumstance, kindly note that our client will take advantage of the case to provide further information on the said article.”
‘EXTRADITE MR. BANDA’
Last Thursday, CSNAC had asked the Economic and Financial Crimes Commission, EFCC, to extradite Zambia’s Henry Banda, from South Africa to Nigeria, under Mutual Legal Assistance, or initiate criminal prosecution against him in South Africa as was done in the Henry Okah’s case.
In the group’s petition to the Commission, they demanded that the EFCC investigate the actual amount illegally diverted in the Nigeria-Zambia oil transaction.
“The Singaporean government, through the embassy in Nigeria, should be contacted for investigation into IEXORA’s registration, account and its operation, to ensure such money laundering deals, as the one referenced, are discouraged,” CSNAC said in a petition dated April 20th and signed by its chairman, Mr. Suraju.
“Mr. Rupiah Banda and Henry Banda should be made to refund the proceeds of crimes to Nigeria or a special account in Zambia. Such account must be subjected to public scrutiny.
“The Commission should establish all those persons connected with this fraud both within and outside Nigeria.”
The group said its attention was drawn to the deal during the ongoing “state-sponsored harassment and persecution” of Mr. Nchito, Zambia’s anti-corruption chief.
“Our further intervention and investigation led to on the spot assessment visitation to Zambia during the week of 12th – 17th April, 2015,” Mr. Suraju said in the petition.
“During the visitation, our 2-man team met with stakeholders and attended a sitting of Mutembo Probe Tribunal, constituted by the President to investigate allegations against Mr. Mutembo.
“Our further investigation revealed secret conspiracy between Zambian Ex-President, Mr. Rupiah Banda and the current President, Mr. Edgar Lungu, to terminate an almost concluded prosecution of Mr. Banda and his son, Henry Banda, in a case of fraudulent conversion, money laundering and abuse of office in a transaction with a Nigerian connection.
“Mr. Lungu is largely considered a protege of Mr. Banda across Zambia. Though, both are of opposing party affiliations, Mr. Banda is known as the major financier, strategist and benefactor of Mr. Lungu in the recently held election that produced Mr. Lungu as President of Zambia five months ago, after the death of Mr. Sata in office as President.”
THE NIGERIAN CONNECTION
The Nigerian government under Late President Umar Yar’Adua offered to assist Zambia in her state of oil shortages and developmental challenges, according to CSNAC, under a bilateral arrangement, with allocation of crude oil to the country on favourable terms through the Nigerian National Petroleum Corporation, NNPC.
“Mr. Banda was then the President of Zambia. Though, the agreement was reached in principle in 2008, the final offer letter was issued by Crude Oil Marketing Division of NNPC on 21st March, 2011, for a renewable One Year NNPC crude Oil contract for 20,000 barrels per day effective from 1st May, 2011.
“The Zambian government, under Mr. Banda, officially appointed and authorized a Nigerian Energy company to trade on her behalf under the offer. Between August, 2011 and April, 2012 four cargos of 3,790,706 barrels of crude oil, with a net worth of $438,887,268.83, were duly paid for and lifted on behalf of the Zambian government by the appointed operator.
“The Zambian Ex-President’s son, in connivance with his father, hurriedly registered a company called IEXORA International Limited in Hong Kong with a Barclays Bank account in Singapore. Mr. Banda then directed the Nigerian partner to pay proceeds of the oil sales to IEXORA while his son operated under a fake email name of Elwood Fairbanks in the deal.”
Almost $1 million meant for Zambia’s development was allegedly diverted into the account opened by Mr. Banda and his son.
On the defeat of Mr. Banda at the polls by late President Sata in 2011, the Zambia DPP office undertook a comprehensive investigation of the transaction, under which Mr. Nchito visited Nigeria on a Mutual Legal Assistance request to gather evidence and information for the purpose of prosecuting Mr. Banda and his son on the offences of money laundering, abuse of office and fraudulent convention in Zambia.
On the conclusion of its investigation, Zambia’s DPP instituted a case against Mr. Banda and his son, Henry Banda in Zambia.
“The prosecutor had already closed his case, with the Nigerian partner in the crude oil transactions appearing in the Zambian Court as a prosecution witness, before the sudden death of President Sata in office,” Mr. Olanrewaju said.
“Mr. Henry Banda had on the commencement of trial escaped to South Africa as a fugitive. With the emergency of President Edgar Lungu, all tricks were deployed to stampede the proceedings by Mr. Banda, with the active collaboration of members of President Lungu’s kitchen cabinet. This resulted in the ominous harassment and persecution of the DPP, who is constitutionally charged with duty of prosecuting state matters.”
CSNAC stated in its petition that it was requesting the EFCC to conduct an immediate and thorough investigation into this “obvious case of fraudulent diversion, money laundering and mismanagement of funds to ensure that all those persons found culpable are brought to book.”

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