Maravi

Francis Kaunda, Kabwe go to jail

Francis Kaunda, Kabwe go to jail
By Laura Mushaukwa
Thursday August 14, 2008 [04:00]

ACTING Lusaka deputy High Court registrar Edward Musona sitting as a magistrate yesterday jailed former Zambia Consolidated Copper Mines (ZCCM) chairman Francis Kaunda and former Access Financial Services director Faustin Kabwe for two years after finding them guilty of conspiring to defraud ZCCM. And magistrate Musona jailed Kaunda for two years on a charge of abuse of authority of office. However, Kaunda’s sentence will run concurrently; meaning he will only serve two years in jail.

In this matter, Kaunda was charged with abuse of authority of office contrary to section 99, sub section one of the Penal Code CAP 87 of the Laws of Zambia.

It was alleged that Kaunda on June 5, 1998 in Lusaka, being a person employed in the public service as chairman of ZCCM Privatisation negotiating team abused his authority of office by arbitrarily offering ZCCM Ndola Primary School to Ndola Trust School Trust, an act prejudicial to the interest of the Government of the Republic of Zambia.

In the second count, Kaunda and Kabwe were jointly charged with conspiracy to defraud contrary to section 313 of the Penal Code CAP 87 of the laws of Zambia.

It was alleged that on March 11, 1997 and February 29, 1999 in Lusaka the duo jointly and whilst acting with another person conspired to defraud ZCCM by offering ZCCM Ndola Primary School to Ndola Trust School.

The prosecution called 26 witnesses who established a case against Kaunda and Kabwe. The duo was later put on their defence.

Kaunda gave evidence on oath while Kabwe elected to remain silent.

In passing judgment, magistrate Musona said in order to establish the guilt of the accused in count one, the prosecution had to prove that Kaunda was employed in the public service as chairman of ZCCM privatisation negotiating team and that he abused his authority of office by offering Ndola Primary School to Ndola Trust School, in disregard of the set out privatisation procedures.

He said the prosecution also had to prove that Kaunda and Kabwe jointly and whilst acting with another person conspired to defraud ZCCM by arbitrarily offering Ndola Primary School to Ndola Trust School.

Magistrate Musona said he agreed with the state that Kaunda was employed as a public officer charged with the responsibility of selling ZCCM assets broken down as core assets - mines, subsidiary assets and miscellaneous assets such as schools and hospitals.

On count one, magistrate Musona said Kaunda was guilty of abuse of authority of office charge because he sold the school to a fictitious buyer when the law required that the sale be done in a transparent manner in compliance with the privatisation Act.

He said further Kaunda accepted Ndola Trust School’s bid of K200 million after the closing date for accepting bids.

Magistrate Musona, in his findings, established that the school in dispute was valued at K400 million and that the bid for the school was advertised. He noted that after the advertisement, seven bids were recorded and later Ndola PTA which bid K520 million and Nsansa School which bid between US $50,000 and US $266,000 were short-listed.

Magistrate Musona said the qualifications for a successful bidder were having past experience of running a school and having social responsibility.

He said the people in charge of short listing made a recommendation to Kaunda that Nsansa School be the preferred bidder for the sale of the school.

However, magistrate Musona established that after the closing date, there were no other bidders but eventually Cave Malik - a law firm - made an offer on behalf of Kabwe to purchase the school at K200 million which was much less than the preferred bidder.

Magistrate Musona also established that Bimo Tucker, the lawyer who made the offer on behalf of Kabwe, was still at large and that at the time of the sale, Ndola Trust School was not registered meaning that it had not yet been born.

He said the law of entities was clear and that the school was sold to a non-existing entity; thus at the time of the sale, there was no buyer but Kaunda signed for a non-existent trust.

Magistrate Musona established that Kaunda gave preference to his friend Kabwe over Nsansa School, which was the recommended bidder. He said that Access Financial Services Limited had earlier made a donation to the school.

Magistrate Musona concluded that Kaunda’s decision to offer Ndola Primary School to Ndola Trust School was prejudicial to the interest of the Republic of Zambia in that ZCCM lost out on Nsansa School’s higher bid.

Magistrate Musona said ZCCM missed an opportunity of selling the school in dispute to a bidder more experienced in running schools when Kaunda sold it to a fictitious buyer.
It is against this background that magistrate Musona found Kaunda guilty of abuse of authority of office thus convicting him.

On the second count of conspiracy to defraud, magistrate Musona found Kaunda and Kabwe guilty concluding that there was some mathematics in the transfer of ZCCM Ndola Primary School to Ndola Trust School.

He also said Bimo Tucker, the lawyer who made an offer on Kabwe’s behalf was a consultant on the ZCCM negotiating team, thus concluding that Tucker was eating with both hands by playing a double role.

Magistrate Musona ruled that the state had proved that there was dishonest agreement in that the buyer was fictitious. It is upon this evidence that he convicted Kaunda and Kabwe on the charge of conspiracy to defraud.

In mitigation on behalf of Kaunda, lawyer Vincent Malambo argued that according to the provisions of section 99 of the Penal Code under which his client was charged, the offence was a misdemeanor in that there was no proof of financial benefit.

Malambo said the court could order community service as another option. He said finding guilty a man of Kaunda’s distinction was enough punishment, and that he was a first offender who did not deserve to go to jail.

Kabwe’s lawyer, John Sangwa, also argued that according to the provisions of section 313 under which his client was charged, the offence was a misdemeanor in that Kabwe did not benefit from the acquisition of the school.

But in handing down judgment, magistrate Musona said although he agreed that the offences were misdemeanors, he noted some seriousness in that the school was not sold to the right buyer and privatisation procedures were ignored.

After the court rose, Kaunda’s wife wailed while Kabwe referred all queries to Sangwa who said he would be proceeding to the High Court for appeal.

The matter was prosecuted by Task Force lawyer Sebastian Zulu.

Labels: CORRUPTION, COURTS, FAUSTIN KABWE, FRANCIS KAUNDA, ZCCM-IH

posted by MrK @ 5:54 AM