23 April 2013

Zambia: Court Dismisses Rupiah Banda's Application

Photo: Zambia Reports
Former Zambian President Rupiah Banda

A Lusaka magistrate's court has dismissed an application by former Republican President Rupiah Banda to refer his matter to the High Court for constitutional issues because it lacks merit.
Chief Resident Magistrate Joshua Banda in his ruling yesterday described Banda's application as frivolous, vexatious and meritless.

The magistrate said it was in the public domain that the accused person had commenced judicial proceedings relating to the case and allowing the criminal matter to be referred to the High Court would be abuse of the judiciary.

"In relation to this application, there are no constitutional issues to warrant referring the case to the High Court.

"From the foregoing, the indictment is not defective as suggested by the defence and I order that trial proceeds," Mr Banda said.

Banda later applied to be given ample time to organise himself on whether he would appeal against the ruling or not but the magistrate refused, and asked both parties to wait for his ruling in the afternoon.

But when the matter came up for ruling in the afternoon, Banda abandoned his earlier application and asked the court to proceed with trial as indicated by the Director of Public Prosecutions (DPP) Mutembo Nchito.

This is in a case in which Banda is facing one count of abuse of authority of office regarding the procurement of oil from a Nigerian company involving US$2.5 million.

Meanwhile, the first witness testified that during his course of investigations he discovered a request letter with former minister of Energy, Kenneth Konga, in which Banda was requesting for 45,000 barrels of crude oil per day from a Nigerian company.

Derrick Kasonka, 44, of Lusaka's Emmasdale Police Camp told the magistrate that he was currently attached to the Government Joint Investigations Team and was assigned to search Mr Konga's Kabulonga residence on December 23, 2011.

In the process, he found several documents and recorded them on the Anti-Corruption Commission (ACC) form 12.

He said on one document it was written 'Request for a 45,000 barrels per day term crude oil purchase contract and proposed solid mineral trade'.

It was authored by Banda and addressed to then Nigerian President Umaru Musa Yar'adua.

Banda is represented by his lawyers, Sakwiba Sikota of Central Chambers, Patrick Mvunga of Mvunga and Company, Eric Silwamba of Silwamba and Company and Irene Kunda of George Kunda and Company.

"This is a State House document, has the date stamp dated 27th November, 2008 and is signed by the former President Mr Rupiah Banda. The document is a photocopy as I could not find the original document," he said.

Mr Kasonka said when he asked Mr Konga about the original document, he said he was told that he only had the photocopy which he came across when he was preparing to vacate office.

When he was asked what he wanted to do with the document, he responded that he wanted to submit it as part of evidence but the defence objected, saying the rules of evidence were hijacked.

Mr Lubinda Linyama from Eric Silwamba and Company submitted that the rules of evidence were clear in that the witness should satisfy the court that there was a diligent search for the original and proof that he had failed to get it.

But Mr Nchito said this was the best evidence that the witness had given because he found the document at Mr Konga's residence and that the former minister was on summons in readiness to come and testify.

Another defence lawyer, Professor Mvunga submitted that the preposition made by the DPP meant that admissibility of secondary evidence was permissible if one conducted a search at one particular place and asked him to produce such law.

The magistrate adjourned the matter to today to allow him ample time to peruse all the laws cited in order to give proper guidance on the matter.

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