Statement from Amsterdam & Peroff LLP
14 April 2012
In an article published on 14 April 2012 in the Post Newspaper of Zambia, Wynter Kabimba, Secretary General of the ruling Patriotic Front party, makes several defamatory and threatening comments with respect toward Mr. Robert Amsterdam, international lawyer to Mr. Henry Banda.
Specifically, Mr. Kabimba’s denunciation of Robert Amsterdam alleges that by performing his job as a lawyer for Henry Banda, he is somehow participating in a “criminal syndicate,” despite a total absence of substance to his claim.
Mr. Kabimba’s threats were preceded by comments made to the Post on 13 April 2012 by Government Spokesman Fackson Shamenda vaguely alleging “money laundering” and other baseless accusations of criminal activity concerning Mr. Banda’s retention of defense. These comments from Kabimba and Shamenda toward Robert Amsterdam are defamatory in nature and in violation of Henry Banda’s right to a defense.
These aggressive attempts to harass and intimidate defense counsel were preceded by a slew of defamatory attack articles published in the pro-government media.
In an editorial article published on 13 April 2012 in the state-owned Zambia Daily Mail entitled “Henry Banda’s lawyer offside,” the authors declare that Mr. Amsterdam is “ignorant,” has a “colonial mentality,” and that there is “no iota of truth in his claims” with regard to his statements in defense of his client, Henry Banda. The publication of these prejudicial opinions in the absence of any formal charges much less legal decisions place a bias on the court of public opinion and deny Mr. Banda his right to presumption of innocence.
Another attack article published in the pro-government newspaper The Post on 10 April 2012 denounces Mr. Banda as a “fugitive” despite absence of conviction and also accuses him of impropriety for having retained defense counsel. These repeated attacks from government officials, Patriotic Front leaders, and members of the pro-government media against Mr. Banda with regards to the retention of defense represent an attempt to deny his right to defense under Zambian and international law, including his rights under the International Covenant on Civil and Political Rights (ICCPR).
Speaking from Washington DC, Mr. Amsterdam responded to the harassment by Mr. Kabimba and other members of the ruling party:
“The regrettable choice on behalf of the ruling Patriotic Front party and officials of the Zambian government to threaten and harass defense counsel should stand as a defining illustration of how the Henry Banda case is being handled: arbitrary, without grounds, in violation of due process and international norms, and driven by political motivation,” Amsterdam said. “By seeking to intimidate lawyers with patently absurd claims, aiming to prevent them from defending clients, the Zambian government is unlawfully violating Mr. Banda’s right to counsel.”
Mr. Amsterdam is deeply experienced in the advocacy of lawyer’s rights against harassment and intimidation by governments. In 2004, Mr. Amsterdam was arbitrarily expelled from Russia for defending a client seen as a political enemy of Vladimir Putin. At the time, the legal network Consulegis issued a statement in his defense, “Consulegis particularly condemns the expulsion of its member Robert Amsterdam from Russia whilst exercising his legal profession and hereby expresses solidarity with him.” Mr. Amsterdam also received numerous threats against his life for defending the victims of a massacre in Thailand. The Law Society of Upper Canada intervened on his behalf, issuing a statement declaring “As Thailand continues to strengthen its democracy, adherence to the rule of law and the protection of human rights and fundamental freedoms of its citizens, lawyers such as Mr. Amsterdam must continue to play a paramount role in that process and must be able to do so without fear of reprisals or harassment.”
In the interest of documenting these comments, the full text of Mr. Kabimba’s comments are contained below.
Henry’s lawyer is on payroll of a corrupt syndicate – Kabimba
By Ernest Chanda and Kombe Chimpinde
Sat 14 Apr. 2012, 13:29 CAT
WYNTER Kabimba says Henry Banda’s lawyer, Robert Amsterdam, is on the payroll of a corrupt syndicate that worked with the Rupiah Banda regime.
And Kabimba says Zambians will see the level of corruption among some individuals entrusted with public office when the report on the ERB and oil procurement commission of inquiry is released.
Meanwhile, Kabimba has apologised to the Zambians over finance minister Alexander Chikwanda’s recent statement that those who were calling for the re-introduction of the windfall tax on copper were lunatics.
Reacting to Amsterdam’s statement yesterday that the Zambian government was persecuting Henry, Kabimba, the PF secretary general, said Amsterdam was representing many corrupt people.
He said understanding Amsterdam’s language, one would realise that he had many interests to protect.
“He is being used by those people that collaborated with the Banda regime to run acts of corruption in our country; that’s the syndicate that is using him. He is not acting for the Banda family alone; he is on the payroll of those conspirators that ran this country to the ground during the Banda regime because of acts of corruption,” he said.
“So, you must see his clientele beyond Henry Banda…What we are saying is that Henry Banda ran a syndicate of criminal activities in Zambia during the reign of office of his father.”
Kabimba said Amsterdam could not claim that Henry was being persecuted when he had not advised his client to avail himself before the Zambian law enforcement agencies for questioning.
He said Amsterdam was politicising Henry’s case when it was supposed to be purely a legal matter.
“On what basis is he advancing that argument? If Henry Banda is innocent, why has he run away? There are many people that were in the MMD government that are still walking as free citizens of this country today. It is Mr Robert Amsterdam himself who is trying to politicise the issue of Henry Banda. And just the way he’s mixing up issues of Nevers Mumba, deregistration of MMD clearly shows you that the man is running a political agenda for the Banda family; he is not acting as a lawyer,” he said.
“His brother James Banda is in Zambia, why hasn’t he run away? And if we are persecuting the Banda family why hasn’t James Banda been arrested or allegedly being persecuted as Mr Amsterdam is claiming? Henry Banda is not the only child of the former president Mr Rupiah Banda. Andrew Banda is also a son of Mr Rupiah Banda. Why isn’t Andrew, who is in the country today, being persecuted if according to Mr Robert Amsterdam the PF is persecuting the Banda family? So the man is lying through his teeth.”
Kabimba said the Patriotic Front government had no reason to persecute Henry.
He said if the PF was persecuting Henry, then the Mail and Guardian newspaper which gave a catalogue of Henry’s dubious business deals should be accused of the same.
“In the Guardian newspaper published in South Africa, not in Zambia, last week’s edition, the Mail and Guardian ran a story of how Henry Banda’s companies in South Africa which he had incorporated had gone insolvent and they had been deregistered. They ran a story in that same newspaper how Henry Banda was doing oil procurement deals with a company called Dalbit which has come again this year to come and tender for oil procurement in Zambia,” said Kabimba.
“So, if the PF is persecuting Henry Banda, is the Mail and Guardian also persecuting Henry Banda? The answer is no. So he is wasting time by trying to play politics because this matter will not die away. For as long as the people of Zambia are not convinced of the innocence of Henry Banda, Henry Banda will remain on the wanted list of the authorities in Zambia.”
Responding to statements made this week by government officials demanding the return of Henry, Amsterdam accused the state of abusing the process.
“If you look at the way this matter is being handled by Zambia, you see all the hallmarks of a politically motivated farce. Mr Banda has never been questioned by the police about anything, while instead the state has conducted a trial by headline consisting of frequently changing accusations. The fact that Zambia has refused to describe what Mr Banda is accused of should set off alarm bells. It is a clear sign that they lack any real case,” said Amsterdam.
“The persecution of Henry Banda is ultimately aimed at pressuring the former president Rupiah Banda and the destruction of the main opposition party. The allegations have been accompanied by a broad attack on the main opposition party Movement for Multiparty Democracy (MMD), including a shocking attempt to de-register the party. There have been repeated arrests of its officials including spokesperson Dora Siliya, and most recently a claim by the former High Commissioner to Canada Nevers Mumba that his house had been raided by state security agents.”
Meanwhile, Kabimba, the chairman of the Energy Regulations Board commission of inquiry, has urged civil society organisations to ask Cabinet to release his commission’s report so that Zambians can see the level of corruption among some individuals that have been entrusted with public office.
Kabimba said this during a two-day conference on the PF/civil society in Lusaka.
He said he was hopeful that the government would release the names of companies and individuals that abused tender procedures in the procurement of oil in which the government lost over K2 trillion over a period of four years.
“I hope government will release names of companies and individuals that abused the procedures of public procurement. You will be able to see the individuals that were interested with matters of tender…public procurement and how they abused their positions,” Kabimba said.
“I do not want to prejudice what Cabinet is going to say, except to tell you that it is not the central tender committee (CTC) that is wrong, it is individuals.”
Kabimba said the public service had been crowded by individuals with self interests rather than those of the public.
He warned that the PF would not allow civil servants who were pre-occupied with enriching themselves.
“We are not going to allow this party to continue with the crop of civil servants that spend their days to run their (personal) businesses at the expense of serving members of the public, that spend their days being at their houses…We cannot move this country forward,” he said.
Kabimba also maintained that there was nothing wrong with appointing cadres to serve as civil servants in response to the concerns raised by the civil society during the same meeting.
“People of Zambia voted for the PF as political party, the party has lent the manifesto to a team of civil servants, public service officers… One of the things I have been asking myself is that ‘can you have a non partisan civil service in this environment 20 years after one political party in power?’ Is it conceivable that after 20 years of MMD in power, PF can take over the reins of government and overnight they are dealing with a non-partisan civil service?” he wondered.
“These are the people that have been suffering because they couldn’t get jobs in MMD or were excluded from doing businesses. Are these men and women not visionary enough to drive this country? I want to submit that they do. We are concerned about the issue of qualifications but we have to augment the two. When we were in the opposition, the people that we found most difficult to recruit into PF were a group of intellectuals from UNZA, colleges, they were extreme conformists with the MMD.”
And on the issue of windfall tax, Kabimba responded by apologising for the remarks made by Chikwanda in which he said those that had calling for the re-introduction of the tax were lunatics.
“I don’t think that expressing divergent views is tantamount with you being a lunatic. So I want to apologise that the people that have expressed views on the issue are not lunatics; that’s how they see the world from their dimension,” he said.
Kabimba said the bottom-line on the issue must not be about the terms that various taxes are labelled but that Zambians ought to benefit from its mineral resources.
“The resources of this country must be for the benefit of the Zambian People, kwamana…The principle is that the resources must primarily be for the benefits of Zambians,” Kabimba said.
And representative of the CSOs, Fr Leonard Chiti said the movement was concerned about inconsistencies in the policy statements of the government, the reversal of the Zamtel sale and appointment of cadres and non-reintroduction of the windfall tax.
Fr Chiti also called for more dialogue between the government and CSOs.