Lt gen KAyumba gets another conviction

Lt gen KAyumba gets another conviction
Written by Mwala Kalaluka
Tuesday, May 05, 2009 5:03:11 PM

FORMER Zambia Air Force (ZAF) commander Lieutenant General Sande Kayumba was yesterday sentenced to two years imprisonment with hard labour after he was found guilty of abuse of authority of office.

This sentence follows another case last March where Lt Gen Kayumba was jailed seven years with hard labour on seven counts of abuse of authority of office and corrupt practices.

Delivering judgment in the matter in which Lt Gen Kayumba stood charged of abuse of authority of office involving the unlawful purchase of a motor vehicle during his tenure as ZAF commander, Lusaka chief resident magistrate Charles Kafunda said the prosecution had proved all the alleged ingredients in the matter.

Facts before the court were that between March 8 and April 24, 2001, Lt Gen Kayumba being an officer in the public service and Air Force commander did abuse the authority of his office by directing or authorising the purchase of a motor vehicle registration number AAX 1176 and with ZAF registration number 3471B.

According to the indictment, the Toyota Land Cruiser was bought at a cost of US$90,000. Magistrate Kafunda said the prosecution called 15 witnesses.

He said at the close of the prosecution's case, Lt Gen Kayumba was placed on his defence and that he opted to testify on oath and that he only called one witness.

Magistrate Kafunda said according to evidence from Mazabuka UPND member of parliament Garry Nkombo, who happens to be Lt Gen Kayumba's relative in marriage, Lt Gen Kayumba was involved in the transaction around the procurement of the motor vehicle in question.

Magistrate Kafunda said Nkombo testified that he introduced the merchant, Nasim Suleiman Muhammad, who supplied the vehicle to ZAF.

He said according to the evidence before the court, Nkombo and Muhammad met and discussed the procurement of the vehicle in Lt Gen Kayumba's office.

Magistrate Kafunda noted that this was after Lt Gen Kayumba said he was not satisfied with the vehicle that Muhammad was supplying at that moment but rather he wanted a top of the range Lexus Gygnus.

He said it was on this score that the ZAF accounts department furnished Muhammad with a down payment of K7 million after he issued a proforma invoice.

Magistrate Kafunda said the evidence further revealed that Nkombo and Muhammad travelled to the United Arab Emirates (UAE) with a view of procuring the vehicle in question.

He said Nkombo told the court that he even had a discussion with Lt Gen Kayumba over the colour of the vehicle whilst in the United Arab Emirates.

Magistrate Kafunda said evidence was tendered before the court that Nkombo handed over the vehicle to ZAF on behalf of Muhammad.

Magistrate Kafunda said in 2001 the procurement threshold for the Ministry of Defence was K30 million.

He said according to the evidence by James Njolomba, director at the then Zambia National Tender Board (ZNTB), procurements above the above threshold were referred to the ZNTB's Central Tender Committee, which would process the procurement according to the laid down procedures.

Magistrate Kafunda said Njolomba told the court that he did not recall ZAF referring the purchase of a motor vehicle to the ZNTB and that he expressed ignorance of any discretionary authority, which exempted ZAF from the laid down procedures.

He said the court heard evidence from Toyota Zambia managing director Andrew Marshall that the vehicle in question was slightly more expensive than those supplied locally.

Magistrate Kafunda said according to Toyota Zambia, a brand new vehicle of the same make was being sold at about US$54,000 while the second hand type was going at about US$31,000.

Magistrate Kafunda said Lt Gen Kayumba said in his defence that at no time did he involve himself in the procurement of the vehicle and he denied Nkombo's evidence in the matter.

He said Lt Gen Kayumba argued that had he made any order in the procurement process he could have done so in writing.

"He also denied having liaised with PW1 on the colour of the vehicle," magistrate Kafunda said.

Magistrate Kafunda said he was equally not surprised by Lt Gen Kayumba's only other witness in the matter, Davy Zulu's economy with the truth as to who could have directed the chief paymaster at ZAF to pay Muhammad.

Magistrate Kafunda said this was because Zulu had told the court that the chief paymaster could not have issued a payment towards the purchase of the motor vehicle without an instruction from a higher authority.

Magistrate Kafunda said among the ingredients that needed to be proved in the case was whether Lt Gen Kayumba was a public officer, who had procured a motor vehicle outside the permissible tender procedures and which transaction was against the interest of the country and that there was an unjustified gain.

He said by virtue of being ZAF commander, Lt Gen Kayumba was a public officer, as defence forces fall within the ambit of the government establishment.

"The procurement ought to have been referred to the ZNTB through the PS, Ministry of Defence," magistrate Kafunda said. "This was not done reason that the accused ordered his officers to procure the vehicle directly from PW2."

Magistrate Kafunda noted that Lt Gen Kayumba using the military regime of orders directed his subordinates to buy the vehicle in total disregard of tender procedures.

"Simple arithmetic and logic reveals that the vehicle...was greatly overpriced," he said.

Magistrate Kafunda said as a result of the unlawful transaction, the government had been occasioned to lose about US$50,000, which could have been avoided had Lt Gen Kayumba followed the right procedures.

He said it was on that score that the interest of the government was prejudiced from the transaction.

Magistrate Kafunda said therefore, Muhammad had also unjustifiably gained from the transaction.

"The prosecution have proved all the ingredients of the offence beyond all reasonable doubt," he said. "I therefore, find the accused guilty and convict him accordingly."

Lt Gen Kayumba's lawyer Leslie Zulu said his client had also been convicted to seven years imprisonment on a similar offence and he urged the court to exercise maximum leniency when passing sentence in view of his exemplary behaviour before the court.

Magistrate Kafunda then sentenced Lt Gen Kayumba to two years imprisonment with hard labour on the basis that cases of public officers abusing their offices were becoming more prevalent and hence the need for some deterrent mechanism.

Task Force prosecutor Fred Malambo applied that the vehicle in question be forfeited to the state but Zulu objected saying Lt Gen Kayumba did not get the vehicle during the commissioning of the crime but that it was given to him as part of his retirement package.

Ruling on the matter, magistrate Kafunda ordered that the vehicle should be forfeited to the state and that it should be sold at a public auction.

He said for the government to recover the loss occasioned from the unlawful transaction, Lt Gen Kayumba should compensate the state within 14 days, failure to which a warrant of distress would be issued.

Magistrate Kafunda said calculations of how much Lt Gen Kayumba would pay would have to be made after the public auctioning of the vehicle.

In March, deputy director of court operations Edward Musona, sitting as magistrate, sentenced Lt Gen Kayumba to seven years on each of the seven counts and the sentences were to run concurrently, meaning he was to serve a maximum of seven years for abuse of authority. His co-accused ZAF former chief of logistics Brigadier General Andrew Nyirongo was sentenced to seven years on four counts while, and Base Chemicals executive director Amon Sibande was sentenced to seven years with hard labour on six counts.

Lt Gen Kayumba was later granted bail pending appeal.

And a report by medical experts has indicated that Seymon Holdings proprietor Anuj Rathi Kumar is fit to stand trial in the matter in which he is facing one charge of corrupting a public officer contrary to Section 29 (2) and 41 of the Anti-Corruption Act number 42 of 1996.

Magistrate Kafunda said the court had received a report that Rathi was able to stand trial and follow proceedings of the case.

This is in a matter in which Rathi is accused of paying 15,000 British Pounds cash gratification to former Zambia National Service (ZNS) commander Lt Gen Wilford Funjika as an inducement or reward for awarding a contract to Seymon Holdings.

During the last sitting of the matter, magistrate Kafunda conveyed Rathi to Chainama Mental Hospital for an assessment of his mental faculties.

Robert Simeza and John Sangwa are representing Rathi, who pleaded not guilty to the charge.

Rathi told the court that he was only taking plea in Jesus' name because he was being forced.

When asked to state his occupation Rathi, who had initially wanted to read some document before taking plea, said he used to be a businessman but that he now wanted to be a pastor.

Magistrate Kafunda had to consistently advise Rathi to take the proceedings seriously and to desist from the habit of addressing the court directly but through his counsel.

The matter was adjourned to May 21, 2009 for ruling in a matter in which the defence lawyers have sought clarification on the framing of the indictment, which they said was not helpful to them in terms of preparing for their case.

Sangwa said they could not wait for the evidence to be adduced before they could clearly know what offence their client was facing.