Maravi

Musonda goes in

Musonda goes in
Written by Laura Hamusute
Thursday, January 22, 2009 9:48:23 AM

FORMER Zambia National Commercial Bank (ZNCB) managing director Samuel Musonda yesterday went to jail for two years after losing his appeal in the High Court.
And Lusaka High Court Judge Tamula Kakusa threw out Musonda's appeal against his conviction, ruling that he abused his authority and benefited from the transactions in question.

This is in a case where Musonda appealed to the High Court against his conviction by the magistrate court on charges of abuse of authority of office.

In the magistrates' court, Ndola High Court Deputy Registrar Jones Chinyama sitting as principal resident magistrate at the time found Musonda guilty on 44 counts of abuse of authority of office involving about K10 billion.

He accordingly slapped on him a two-year concurrent sentence on all counts. Initially Musonda was charged with 50 counts, but the counts were reduced to 44 after he was acquitted on six counts.

Magistrate Chinyama established that Musonda abused his authority of office when he disbursed money from ZNCB's Suspense Debtors' Account, noting that Musonda ignored consulting the ZNCB board in disbursing the funds and that the house, number four Ingwe Road in Lusaka's Woodlands area which Musonda claimed to have bought was a benefit since it was paid for using money from the Office of the President.

Magistrate Chinyama ordered the forfeiture of Musonda's house, saying it was a benefit from the said questionable transactions.

In mitigation, Musonda through his lawyer Mumba Kapumpa said he was a first offender and a Christian who carried out some of the transactions in good faith.

Later, Musonda was granted bail by the Lusaka High Court after he appealed against his conviction.

Musonda, through Kapumpa, filed 21 grounds of appeal.

Kapumpa contended that the trial magistrate erred in law and in fact when he failed to differentiate between want of authority and abuse of authority in order to understand the ingredients of the offence Musonda was charged with.

He explained that from the records, it was not clear what Musonda was supposed to have done to commit the offence as the magistrate said he did not comply with routine procedure or simply that he initiated the transactions.

Kapumpa further explained that on the contrary, Office of the President (OOP) initiated the transactions.

He described as wrong and contradictory the statement that Musonda made the payments without authority, arguing that a person must have authority before he can abuse or misuse it.

Kapumpa also argued that the trial magistrate ignored Musonda's defence by overlooking the evidence that transactions were made for the greater good of the country.

He pointed out that the lendings were made on sovereign considerations, adding that there was no loss to the bank and that Musonda accrued no personal benefits from the transactions.

Kapumpa contended that corporate law provided that directors dance to the tune of the shareholders with no powers to change their wishes.

He argued in the grounds of appeal that the trial magistrate misdirected himself when he did not take into account the fact that no mens rea [guilty mind] was proved beyond reasonable doubt.

Kapumpa noted that the trial magistrate misdirected himself when he found as a fact that Musonda's house in Woodland's Ingwe Road was a benefit accrued from the transactions, contending that his client acquired the house on a legitimately sourced loan.

He further contended that the magistrate erred in law and fact when he found that Musonda had no power to transact in the way he did without considering that his performance contract gave him wide discretion and sufficient mandate to deal with sovereign requirement of ZNCB's majority shareholder, the government.

But prosecutions lawyer Mutembo Nchito in his submissions, argued that the case involved serious misapplication of government funds and it involved fugitive former Zambia Security Intelligence Services (ZSIS) director Xavier Chungu, former president Frederick Chiluba and Musonda himself.

Nchito contended that the use of government funds was not known and the trail ended with Musonda at ZNCB.

He added that Musonda gave no reasonable explanation as to what happened as people were moving government money in the boots of their cars all over Lusaka.

Nchito also argued that Musonda lent money in an unprocedural manner and although he had authority to lend it, abused it by exceeding the amount he was expected to lend.

He noted that Musonda's Ingwe Road house in Woodlands was a benefit accrued from the transactions, as he did not prove how he paid the loan.

In passing judgment, Judge Kakusa dismissed Musonda's first ground of appeal establishing that the trial magistrate took trouble to address his mind to the abuse of authority charge by having recourse to the dictionary and the evidence on record.

He ruled that Musonda was obliged to follow the ZNCB internal procedures in carrying out the said transactions.

Judge Kakusa established that Musonda had no authority from the Ministry of Finance and the ZNCB board of directors except his assertion that he operated under instructions from then director general of intelligence Xavier Chungu.

He also dismissed Musonda's explanation that he transacted the way he did in a bid to hide some of the transactions from the International Monetary Fund (IMF), saying had it been the case, the government would have found a better financial arrangement for addressing the same.

Judge Kakusa dismissed all of Musonda's grounds of appeal, concluding that the trial magistrate was on firm ground in arriving at the findings on record.

He said Musonda played a role in all the 44 counts [actus reas] and that he had addressed his mind to the nature of the transactions [mens reas].

Judge Kakusa pointed out that clause eight of Musonda's performance contract did not give him any special authority to transact the way he did, describing his conduct as unacceptable.

He observed that although the magistrate only jailed Musonda two years as a result of repaying the funds, repayment of funds was not a defence in criminal law but merely a mitigatory factor.

Judge Kakusa threw out Musonda's appeal, contending that what he did was fraudulent, irregular and he benefited from the transactions in question.

He said in the event that Musonda appealed to the Supreme Court, he had to show extra effort that he bought his house from his own resources.

After judgment was delivered, Musonda's lawyer Kapumpa indicated that he was going to appeal to the Supreme Court against the judgment.

Commenting on the judgment, Task Force on Corruption public relations officer Victor Makai, who attended court, expressed happiness, saying Judge Kakusa had done a thorough job.

Labels: SAMUEL MUSONDA, TAMULA KAKUSA, ZNCB

posted by MrK @ 9:50 AM