Regina Chiluba will be re-arrested - Nkole
Regina Chiluba will be re-arrested - NkoleBy Amos Malupenga, Laura Mushaukwa and Namakau Nalumango
Saturday August 25, 2007 [04:00]
Regina Chiluba will be re-arrested because the evidence against her is overwhelming, Task Force chairman Max Nkole said yesterday. But former president Frederick Chiluba's wife, Regina, expressed disappointment at the state's decision to enter a nolle prosequi in her case, saying her prosecution was malicious. And Ndola Principal Resident Magistrate Chilombo Phiri has ordered the state to give back the property which was seized from Regina and pay her costs.
Commenting on the nolle prosequi entered by the state in the case where Regina was charged with nine counts of failing to account for possession of property believed to have been stolen, Nkole said the case was still active.
“She will be re-arrested so we can re-start the matter with a new strategy,” Nkole said. “We have to do that in the interest of justice, in the interest of the accused, the state and the court.”
Asked to comment on the court ruling ordering the state to give back to Regina whatever was seized from her, Nkole said the ruling was pre-emptive.
“The court is being pre-emptive,” he said. “I think the court is jumping the gun because the court should be aware that when a nolle is entered, the case is still alive and can be restarted anytime. It is premature for such a court order. In fact, this confirms our fears. We had some fears, that is why we have to re-start this case with a new strategy. This matter has to be handled to the satisfaction of all parties involved.”
Nkole said his team was convinced that they had overwhelming evidence against Regina.
“The DPP Director of Public Prosecutions is of the same view,” Nkole said. “He was heavily consulted before the arrest was effected. Even this nolle was entered with his guidance and direction.”
But Regina expressed disappointment at the nolle.
“I am disappointed that the state decided to bring a nolle at such a late stage, but above all I want to thank my God who is faithful and who is our vindicator,” Regina said. “I would like to thank my husband who has been very supportive and also my lawyers Simeza Sangwa and Associates.”
She hoped the state would abide by the court order and release her assets. Regina said her prosecution was motivated by malice.
The matter was yesterday scheduled for ruling on a case to answer but the complexion of the case changed after senior prosecutions officer Dennis Simwiinga informed the court that the state intended to discontinue the matter by entering a nolle prosequi pursuant to section 81(1) of the Criminal Procedure Code (CPC).
Magistrate Phiri closed the case at the last sitting after the state failed to produce witnesses despite several of her warnings against delaying the matter.
However, magistrate Phiri granted Simwiinga’s application, saying the court had no powers to question the state’s entry of a nolle prosequi.
But defence lawyer Robert Simeza opposed the application contending that it was not competent for the DPP to enter a nolle at this stage after the case was closed for a ruling.
“We seriously oppose this application on the grounds that it is not competent for the DPP to enter a nolle at this late hour after the case has been closed and a ruling is about to be delivered,” Simeza said. “It was open to the DPP to discontinue prosecution before they closed the case. Your Honour this is a classic case of the worst kind of abuse of the court process and malicious prosecution. They should not be allowed.”
At this point Simwiinga chipped in saying the DPP was empowered by section 81(1) of the Criminal Procedure Code to discontinue a matter even when a ruling or judgment was about to be passed.
Simeza then made two applications relating to restitution of property that was seized from Regina and ordering the state to pay costs as a deterrent from bringing about unnecessary prosecutions.
“I wish to make two applications, the first one is for restitution of the property seized from the accused which is being used as exhibits before this court and this is anchored on section 179 of the Criminal Procedure Code,” Simeza said. “Your Honour, the property in question includes the motor vehicles, bank accounts which have been frozen and the rest of the property. The second application is an order that my client be awarded costs for these clearly unnecessary and malicious proceedings which were brought against her. It was clear from the beginning that the state had no case against my client but they went ahead to put her at great expense in order to defend herself. The state must be made to pay expenses arising from this action to act as a deterrent so that they should think twice next time. The state should not be allowed to abuse its authority and power to its citizens.”
Simeza noted that the state decided to discontinue the case after they realised that their case had collapsed.
“Your Honour, don’t allow your court to be abused by the state,” Simeza pleaded.
Simwiinga objected to Simeza’s application, contending that the accused was discharged, not acquitted, meaning the state could still re-arrest her and the same exhibits could be used.
“You cannot question a nolle, on the exhibits we submit that the application should not be allowed as the state may re-arrest the accused person and use the same exhibits,” Simwiinga argued. “On the second application Your Honour, the accused person was brought before this honourable court through the normal legal procedure as to whether this prosecution is malicious is a matter of evidence. The defence cannot allege abuse of authority without evidence. Costs should not be awarded. Section 81(1) is law, the state did not make it neither did the court. The court’s duty is to interpret the law and the DPP is merely exercising his legal powers.”
But Simeza dismissed Simwiinga’s argument as illogical, saying the proceedings had ended, meaning his client was free and that if the DPP decided to start new proceedings, they would be under a different cause.
He wondered what would happen to the exhibits in the event that the DPP did not start new proceedings or if the new proceedings were to be brought before a different court.
“What happens to these exhibits, are they forfeited?” asked Simeza.
He argued that it was not a matter of evidence that the prosecution was malicious because things spoke for themselves and that the conduct of the state needed to be frowned upon.
Meanwhil, there was jubilation inside and outside the courtroom as Regina’s supporters sang worship and praise songs such as Ba Lesa ba weme while Regina waved at them and walked around the court precincts in an ecstacy of joy.
The supporters escorted Regina, swarming her car until she drove away while police tried to control them.
Labels: COURTS, MAX NKOLE, REGINA CHILUBA
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