Saturday, December 27, 2008

Bulaya gets 5-year jail sentence

Bulaya gets 5-year jail sentence
Written by Laura Hamusute
Saturday, December 27, 2008 12:59:31 PM

FORMER Ministry of Health permanent secretary Kashiwa Bulaya yesterday went to jail for five years after losing his appeal in the High Court against conviction by the magistrates’ court last year.

And Supreme Court judge Marvin Mwanamwambwa, sitting as High Court judge, castigated Bulaya's lawyer Frank Tembo for using disrespectful language when referring to court judgments.

Earlier, judge Mwanamwambwa dismissed Bulaya's appeal on grounds that it had no merit and upheld the lower court's order on the seizure of Bulaya's assets.

This is in a case in which Bulaya appealed to the High Court against his conviction by Lusaka High Court deputy registrar Edward Musona who was then principal resident magistrate after he found him guilty of abuse of authority of office and corruption.

Bulaya was charged with abuse of authority of office contrary to Section 37 (2) a of the Anti-Corruption Commission Act number 42 of 1996. Particulars of the offence were that Bulaya on dates unknown but between August 17, 2001 and October 31, 2001, being a public officer, namely permanent secretary in the Ministry of Health, abused his authority of office by disregarding laid down tender procedures through the engagement of Butico A1 to supply Elixir Nine, a drug for people living with HIV/AIDS to the Ministry of Health, thereby gaining advantage.

On the second count, Bulaya was charged with corrupt practices by public officer between August 17, 2001 and March 15, 2001.

Bulaya is said to have received about K115 million when he served as permanent secretary from Butico A1 as an inducement to himself for engaging the company to supply drugs to the Ministry of Health. He also received about K890 million cash gratification between October 11, 2001 and June 17, 2003.

The state called 21 witnesses but when Bulaya was put on his defence and given a chance to defend himself, he elected to remain silent, contending that he was not going to have a fair hearing.

On February 21, 2007, magistrate Musona sentenced Bulaya to five years imprisonment with hard labour and ordered the forfeiture of his assets.

But Bulaya, being dissatisfied with the judgment, decided to appeal to the High Court against his conviction and even applied for bail pending his appeal.

Consequently, he was granted bail of K40 million with two working sureties.

Later, Bulaya was deserted by his lawyer Mumba Kapumpa after he failed to settle legal fees. Bulaya then engaged Frank Tembo as his new lawyer.

Tembo advanced four grounds of appeal, some of which related to conflict of interest.

Tembo, in his heads of argument, argued that there was no need for Bulaya to declare interest as he was not a shareholder while state prosecutions lawyer Mutembo Nchito argued that there was need for Bulaya to declare interest in his dealings with Butico A1.

Judge Mwanamwambwa ruled that there was need for Bulaya to declare his interest in the transaction and that his decision not to declare interest was a clear breach of the Zambia National Tender Board (ZNTB) Act.

He established that Bulaya was a close associate of Dr Angel Yostov who was the chief executive officer of Butico A1 and that despite the tender board's refusal to engage Butico to supply drugs, Bulaya made the approval alone and signed a Memorandum of Understanding on behalf of the Ministry of Health.

Judge Mwanamwambwa also established that Bulaya was instrumental in the supply of Elixir Nine and he received a total of about K511 million from Butico.

He noted that Bulaya had an interest in the supply of Elixir Nine and that he directly or indirectly benefited from the transaction.

Judge Mwanamwambwa observed that Elixir Nine was given to the public without being subjected to clinical trials for toxicity and efficacy. He further established that the Ministry of Health paid about K3 billion to Butico for the supply of Elixir Nine.

Judge Mwanamwambwa dismissed the assertion by the defence that Elixir Nine was requested for by the then State House press aide Richard Sakala for clinical trials ruling that it was indeed Bulaya who orchestrated the supply of the drug.

He threw out all of Bulaya's grounds of appeal upholding the decision by the magistrate's court.

On lawyer Tembo's language, judge Mwanamwambwa rebuked him for using the word contrite when referring to an action by the trial magistrate. He also told Tembo to be systematic when presenting his arguments before court.

It is against this background that judge Mwanamwambwa threw out Bulaya's appeal and Bulaya was taken to jail upon judgment. The five-year sentence was effective from yesterday.

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