Dismissed High Court judge Joshua Banda has refused to take plea in a matter where he is accused of corruption demanding that the ACC consolidates the two counts he has been indicted for, to avoid being punished twice on the same offence.
Banda is facing two counts of corrupt transactions for soliciting a “ka something” from a litigant in order to render judgement in their favour.
Banda is alleged to have asked for K130,000 from David Mwanza a former Sheriff officer as an inducement for a favorable judgement in case where Mwanza was accused of defrauding Mopani Copper Mines K8 million.
The accused instead received K63, 000 from Mwanza who later reported the adjudicator to the Judicial Complaints Commission (JCC) and the Anti- Corruption Commission for extortion.
Allegations in count one are that Banda between July 1, 2020 and July 31, 2020, corruptly solicited for K130, 000 as gratification from Mwanza a former sherriff officer in the Judiciary, as an inducement in order to assist him to have a favorable decision in a tribunal relating to the collection of K8, 000, 000 from Mopani Copper Mines, a private body.
In the second count it is alleged that Banda on the dates in question received a K63, 000 as gratification from Mwanza in order to assist him have a favorable decision in a tribunal relating to the collection of K8, 000, 000 from Mopani Copper Mines, a private body.
Before Banda could take plea his lawyer asked magistrate Idah Phiri to order the Anti-graft fighting body to merge the two charges as the relate to the same facts.
“We pray that the court sets aside any one of the counts so that the accused is not embarrassed when he takes plea,”Mataliro said.
ACC prosecutor Virginia Tembo in responding to Mataliro’s application placed reliance on section 135 of the Criminal Procedure Code (CPC) arguing that the indictment has two counts highlighting two separate acts that constitute an offence.
She said the first count relates to soliciting while the other relates to actual receipt, therefore the two acts form different offences as there are different amounts involved.
“The separation of the counts will make it easy for Banda to make a defense thereby not occasioning injustice. We fail to appreciate the application by council that the counts are embarrassing to the accused,” said Tembo.
“According to the ACC Act no. 3 of 2012 corruption can be committed by either solicitation, accepting, giving, promising or offering of the gratification. To solicit cannot be said to be the same thing as to accept. Solicitation on its own constitutes an offence the same with accepting which on its own creates an offence.”
Another prosecutor Sylvia Mutamena said according to section 135(1) an accused person maybe indicted for offences founded on the same facts and for a series of offences of the same or similar characteristics.
She said the accused should take plea as the indictment is not defective on reasons of duplicity because the counts arising from the same transaction constitute different acts which form different offences.
Mataliro maintained that the indictment be amended to avoid a multiplicity of actions to prevent his client from being subjected to double jeopardy.
Magistrate Phiri has reserved ruling for May 4.
By Mwaka Ndawa
Kalemba April 19, 2023.