6 June 2008
Ndola — FORMER ministry of Health permanent secretary, Kashiwa Bulaya, has insisted that he followed tender procedures in having Elexir tested as a food supplement.
Bulaya, in his written heads of arguments filed by his new lawyer Frank Tembo said, far from breaching tender procedures, he tabled Elixir before a tender committee that made independent decisions to watch demonstrations and subject it to tests.
This is in a matter in which Bulaya, 54, has appealed to the High Court against his conviction by a Lusaka magistrate, who sentenced him to five years imprisonment for abuse of authority of office and corrupt practices.
He said his evidence was wrongly summarised because he received Elexir at Medical Stores and did not deliver it to the ministry of Health as suggested by the magistrate.
He said the magistrate did not care to find out whether the appellant was still a permanent secretary throughout the period covered by the counts because he was not a controlling officer after December 2001 as confirmed by some witnesses.
"The charges were, therefore, inherently defective, incorrect and misleading. After December 2001, the appellant could not have received any money in the character of a PS as alleged in counts two and three," he said.
There was also no law preventing a former permanent secretary who previously had official dealings from teaming up with another party or being employed or otherwise indulging in a business relationship.
"The magistrate also misdirected himself by saying Bulaya was a director at Buticol A1 because it was an overseas incorporated company whose directors were not Zambians," he said.
But the case could not take off yesterday because the written heads of arguments were filed late and served on the state lawyer, Mutembo Nchito, after 17:00 hours on Wednesday.
Mr Tembo said the heads of argument were filed late because he was committed and had to prepare them the same day.
Judge Marvin Mwanamwambwa said he was displeased with the way the appellant left matters for the last minute, which resulted in adjournments of the case.
Mr Nchito said he would respond in writing because the appellants had completely departed from the grounds of appeal.
"It is clear that they have not touched on the issues raised in their grounds of appeal and they raised new issues and, in effect, there is completely a new appeal before the court," he said.
He applied to file in a written response by June 13.
The judge granted the application that the State should file its response by June 13 although there would be no sitting on that date while Bulaya should also respond by June 20.
The matter was adjourned to September 30 for judgment.
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