Maravi

K27 billion MoH case adjourned

K27 billion MoH case adjourned
Written by Mwala Kalaluka
Monday, June 15, 2009 9:30:16 PM

SOME relatives and friends of the eight civil servants implicated in the K27 billion scam in the Ministry of Health yesterday heckled a prosecutor after he applied for a two-day adjournment in the matter. And the eight accused persons have pleaded not guilty to all the charges that have been respectively slapped on them.

This is in a matter where Abel Katongo, Anthony Mwila, Lloyd Onde, Justin Phiri, Nobert Peleti, Zukas Kaoma, Henry Kapoko and Fred Chileshe are facing various offences before the Lusaka Magistrate Court.

Katongo, Mwila, Onde, Peleti and Zukas Kaoma are charged with one count of theft of public servant.

Facts before the court are that between December 1, 2008 and February 28, 2009 at Lusaka, jointly and whilst acting together and being persons employed in the public service did steal about K1.980 billion the property of the government of the republic of Zambia.

The six accused persons all denied the charge.

The second count of theft contrary to section 272 of the penal code relates to Kapoko and Chileshe; who is the operations manager at Best Home Lodge.

Facts before the court are that between December 1, 2008 and February 28, 2009 at Lusaka, the two jointly and whilst acting together did steal K1, 980 billion the property of the government of the republic of Zambia.
The two also denied the charge.

On count three, Kapoko has been solely charged with the offence of issuing a cheque on an insufficiently funded account, contrary to section 33 (1) (4) of the National Payments and Systems Act.

Facts are that between February 1 and 17, 2009 at Lusaka with intent to defraud willfully and fraudulently issued cheques number 000241 and 000242 in the amount of K99 million respectively on Kakeham Limited account number 000641361000 to Goldman Insurance Limited.

Kapoko also denied the charge.

State prosecutor Frank Mumbuna then requested for an adjournment to allow the state consolidate the counts in respect of Kapoko, who is also facing another charge of obtaining money by false pretences before the same court.

However, the lawyers representing the accused persons indicated that they would want to make bail applications for their clients.

Paul Katupisha said his client, Katongo, deserved to be granted bail pending trial because he was a man of fixed abode, as well as a public officer.

Katupisha said Katongo always complied and cooperated with the investigative agencies whenever he was called upon and he called on the court to use its bail discretion to decide in the accused personÕs favour.

Friday Besa, who is representing accused number two, Mwila, said his client was entitled to bail pending pursuant to section 123 of the criminal procedure code chapter 88 of the law of Zambia.

He submitted that the offence that his client was charged with was a bailable one and that he would abide by any condition that the court may set in the circumstances.
OndeÕs lawyer, Gilbert Chileshe said the court was requested to grant bail to his client because of his exemplary record during the investigation process.

Billingtone Mosha said on behalf of accused number four Justin Phiri that his client had fully cooperated with the investigative team whenever he was called upon.

Mosha said apart from considering the conduct of the accused in its determination of the bail application, the court should be mindful that an accused person is presumed innocent until proven guilty, according to Article 18 of the constitution.

PeletiÕs advocate, F. Mutale, said his client should be admitted to bail because the offence was bailable and that he had not shown any conduct that would suggest that he would not avail himself before the court.

The counsels for Kaoma, Kapoko and Chileshe submitted that the discretion of the court in considering an application for bail needed to be exercised judiciously.
In respect of Kapoko, Mulenga Chiteba said he was a family man, with two young children aged 12 and 9 and that he was civil servant employed as a chief human resources development officer in the Ministry of Local Government and Housing.
Chiteba referred to the case Anupbhi Patel versus the Attorney General, 1993 to 1994 Zambia Law Reform at page 57, a matter of the high court.

He said there were special circumstances that would qualify Kapoko to be admitted to bail; especially that he cooperated with the investigators from his time of arrest.
Mutinta Syulipwa submitted on behalf of Chileshe that her client qualified to be granted bail because he was a man of fixed abode and that he was in gainful employment.
She said Chileshe readily assisted the investigative wings.

But Mumbuna said on behalf of the state said they needed a two-day adjournment to allow them study some of the case authorities that the defence counsels had used in their submissions.

MumbunaÕs response was met with some heckles and grunts forcing him to call for order, because he was on the floor.

He said there were no libraries within the court premises where the state could go to study some the cited case authorities and he prayed to the court to grant the stateÕs application.

In their response, the defence lawyers described the call for a two-day adjournment by the state to just study well-known case authorities was unreasonable and a violation of the accusedsÕ constitutional rights to liberty.

Some of them said there was only one case authority that was cited from the defense side and that all their submissions were premised on the provisions of section 123 of the criminal procedure code.

They charged that the application by the state for an adjournment lacked merit and that it should be dismissed.
They said they were also aware that their clients had even been denied police bond from the time they were arrested.

Mosha said the arguments from the defense over the bail application had been more factual than legal.

He said it did not require the state two days to study such arguments.
ÒI would urge the court that this is just the beginning of a long journey and this court should not be used as a tool for systematic victimization to accused persons,Ó Mosha said, as the audience shouted: ÒYes.Ó

Mosha said the state could not come before the court and show that they did not know the law.

But Mumbuna objected to MoshaÕs assertion and he asked him to retract it, because as far as he was concerned the public prosecutors were firmly conversant with the law.
However, Mosha challenged him to proceed with the case if he was knowledgeable with the law, as he claimed.

Mumbuna in response to the arguments said there was no time frame connected to the provisions of section 123 of the CPC, as regards the granting of bail.

ÒMuch as the state admits that justice delayed is justice denied, so is justice rushed is justice denied,Ó Mumbuna said amidst more moderate heckles and grunts. ÒWe will not employ a speed trap to this case, like it is special.Ó

He said even though the accused persons had rights they enjoyed in the constitution, these rights were not absolute.

ÒThe submission by the state has got merit for purposes of justice and nothing else,Ó said Mumbuna.

In his ruling on the matter, magistrate Kenneth Mulife said he did not want the court to be used as a point of victimization against the accused persons, as the court was a focal point for justice.

He also said the submissions by the defence counsels had been lengthy and it would therefore, require the state some time to study them but that two days was too much.
Magistrate Mulife said he would give the state a day to prepare their submissions on the bail application.
The matter comes up today.

Labels: COURTS, MINISTRY OF HEALTH

posted by MrK @ 8:34 PM