Maravi

Funjika goes to jail

Funjika goes to jail
By Laura Mushaukwa
Tuesday March 11, 2008 [03:00]

LUSAKA High Court judge Phillip Musonda yesterday sentenced former Zambia National Service (ZNS) commander Lieutenant General Wilford Funjika to nine months imprisonment, quashing the two-year suspended sentence slapped on him by the magistrates’ court. And judge Musonda said sickness as a mitigatory factor had been diminished by legislative incursion in sexual offences.

This is in a matter in which the two-year concurrent suspended sentence that Ndola High Court Deputy Registrar Jones Chinyama, sitting as a magistrate in Lusaka, imposed on Lt Gen Funjika on December 31, 2007 was being reviewed by judge Musonda pursuant to the provisions of section 337 of the Criminal Procedure Code Cap 88 of the laws of Zambia.

Under this section, the High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself to the correctness, legality or propriety of any sentence or order made.

Chinyama suspended Lt Gen Funjika’s sentence on the basis that his health was failing as he was just recovering from a stroke he suffered earlier.

In the magistrates court Lt Gen Funjika was convicted for two counts of corrupt practices by public officer contrary to section 29 (1) and abuse of authority of office contrary to section 37 (2) (a) as read with section 41 of the Anti Corruption Commission Act number 42 of 1996.

Particulars of the offence were that between December 3 and 5, 2001, when he served as ZNS commander, an amount of 15,000 British Pounds was paid to his children, Mumbelunga and Viera, by Seymon Holdings as an inducement or reward after he offered them a contract.

On the second count, Lt Gen Funjika was alleged to have between October 22 and November 1, 2001 abused his authority of office by awarding a contract to Seymon Holdings Limited for the supply of single breasted nylon raincoats valued at 12,000 British Pounds without following tender procedures in order to gain property or advantage.

Magistrate Chinyama convicted Lt Gen Funjika, suspending his sentence for two years and ordered him to pay back 15,000 British Pounds to the state, which he did.

In the matter before judge Musonda, prosecutions lawyer Mutembo Nchito in his submissions thanked the court for taking interest in a matter of public interest highlighting the gravity of corruption and the complexity of sentencing.

But in his submissions, Lt Gen Funjika’s lawyer Remmy Mainza appealed to the court not to quash the sentence of the lower court as it was proper.

After listening to the pleadings, judge Musonda in his ruling explained that under section 338 of the Criminal Procedure Code, the court had the powers to vary or reverse the decision of the subordinate court if it was of the view that a different sentence should have been passed.

Judge Musonda broke down corruption into five types, citing the corruption that Lt Gen Funjika was charged with as the most serious of them all. Judge Musonda said such kind of corruption invited a custodial sentence as it was done by greedy public officials who were well paid and society did not get value for its money.

He said he should not be misunderstood when he said the learned principal resident magistrate was not well meaning. Judge Musonda added that sentencing was a complex subject and there was need for the court to fashion sentencing principles for the lower courts.

He said corruption had devastating effects on the development of societies and economies as it diverted resources from productive sectors to areas of wasteful consumption. Judge Musonda noted that grand corruption incapacitated government from providing society’s basic social needs like health care, which may result in the poor dying. He said it was this view on corruption that had to be taken into account when sentencing.

On the medical condition of a convict being a factor in sentencing, judge Musonda said no medical report was tendered in evidence, adding that the extent to which the health of an individual might be mitigatory was a troubling question.

He observed as notorious a fact that the majority of people who committed heinous sexual offences were afflicted by HIV/AIDS but the legislature imposed a sentence of 15 years on them. Judge Musonda wondered if the court should impose a sentence less than 15 years just because the convicts pleaded to being infected with a terminal disease even when society was so indignant about such offences.

He pointed out that sickness as a mitigatory factor had been diminished by legislative incursion in sexual offences.
“Why and when should it diminish the seriousness of otherwise a serious offence? My view is that little weight should be attached,” judge Musonda said.

He said although Lt Gen Funjika had shown extreme remorse and diligently served Zambia at one time, grand corruption was a serious offence. Judge Musonda lamented that it was not pleasant that the other co-adventurer escaped punishment and urged the government to ban such companies (in this case Seymon Holdings) by having them blacklisted in their own countries.

He set aside the suspended sentence slapped on Lt Gen Funjika by the magistrates court ordering him to appear before University Teaching Hospital (UTH) medical experts for examination before serving his sentence.

“I set aside the suspended sentence and impose what criminologists call a sharp short sentence which is reformative and a deterrent to other controlling officers and public officers, especially those who procure goods and services for government. The courts will not condone such conduct,” ruled judge Musonda.

“The convict shall serve nine months with hard labour with effect from March 10, 2008. It is ordered that a medical examination by UTH medical experts be conducted before he can formally start serving the sentence.”

And commenting on the ruling, Lt Gen Funjika wondered why the matter had been brought up as no one appealed, saying he had complied with the conditions he was given by the magistrates court.

Labels: WILFORD FUNJIKA

posted by MrK @ 4:59 AM