FORMER permanent secretary in the Ministry of Defense Stardy Mwale and his co-accused have asked the Economic and Financial Crimes Court to refer the jet case to the High Court for a determination on whether they will be afforded a fair trial after being convicted in public by the President.
The accused want the court to also ascertain under which category their case falls wether the EFCC or an ordinary case under the ACC Act.
They argued that if the case fell under the EFCC, it was being held outside schedule in line with gazette notice no. 17381738 of 2023 issued by the Judiciary directing Subordinate Courts to hear such cases in sessions within five months.
“The first of such session is due on February 5, 2024 and clearly today we are sitting outside the session,” argued their lawyers Milner Katolo and others.
In this matter Mwale is jointly charged with Isabel Wilima Chinji, and military personnel general Micheal Obister Mbewe, Evaristo Sakala, Frank Hardy Sinyangwe and Dr John Phiri for wilful failure to comply with the law relating to procurement and corrupt acquisition of public property.
The charges are in relation to the purchasing of the presidential jet Gulf-stream G650.
Before trial could commence, yesterday before Lusaka chief resident magistrate Davies Chibwili, the quintet wondered whether it will be tried fairly when President Hakainde Hichilema who is the most powerful person in the land and other senior government officials have declared it guilty in public.
“The concern by the accused persons arises from the presidential address at the Judiciary conference held in Livingstone on November 29, 2022, where the President heavily discussed the issue of the gulstream G650 and intention to sell the same because it was procured at an overpriced price according to him,”Katolo said.
“The defence minister Mr Ambrose Lufuma in an address to the Parliament of Zambia stated that the presidential aircraft subject of these proceedings was procured at a cost of US$60 million above market value following dubious procurement processes.”
Jonas Zimba argued that the pronouncements by the President are not mere statements but a directive to adjudicators that the jet was dubiously acquired.
“The utterances by the President who is Head of the Executive directed to Judicial officers on a matter to be heard and determined by them is in breach of Article 122 of the Constitution,”Zimba said.
“This court has no jurisdiction to determine that question. Jurisdiction is everything and out of no jurisdiction comes nothing. The only available duty for this court (SubCourt) is to refer the issue of Article 122 to the Constitutional Court for interpretation.”
Friday Besa argued that when matters are pending determination before Court members of the public inclusive of government officials are not supposed to make their own judgement.
“The situation can be ignored if such words came from a general member but however such utterance carry a more serious tone, one with grave consequences on the accused persons where it comes from the Republican President who is also the heard of the Arm of government,” he said
“The dangers of the accused persons not standing fair trial are very real and the danger of these proceedings appearing to rubber stamp an already predetermined position are very real.“
Besa argued that it is an exercise in futility for the accused to fight for their innocence while the most powerful man in the country has pronounced them guilty.
“This is a clear case of interfering with court proceedings and the operations of the judiciary by the leader of the executive. We can’t proceed with these proceedings as if nothing happened. It would amount to the accused persons agreeing to be tried outside the Constitutionally guaranteed right to a fair trial,” said Besa.
“It will amount to the accused persons agreeing to rubber stamp a process that is guaranteed to find them guilty of offences that they are saying they did not commit.”
In reply ACC prosecutor Martin Mayembe said the submissions bordered on the separation of powers between the Judiciary and the Executive and the lawyers were giving evidence from the bar.
He indicated that he was not aware of the utterances made by the President as under Article 28(2) case referrals are done at the discretion of the Court upon establishing that applications relating to the same are meritorious.
“The application is frivolous and vexatious meant to delay proceedings,”said Mayembe.
And Daniel Ngwira argued that the application was improperly before Court as the defense ought to have filed necessary documents supporting the allegations complained of.
“The application shouldn’t be entertained.?The issues raised are serious allegations of fact without evidence,” said Ngwira.
In response Leon Lemba argued that the evidence was not coming from the bar as it was in public domain that the President made such utterances.
Magistrate Chibwili adjourned the matter to January 29, 2024 for ruling.
By Mwaka Ndawa
Kalemba January 23, 2024.