Liato mocks his 2-year jail term

Liato mocks his 2-year jail term
By Mwala Kalaluka
Thu 24 May 2012, 13:00 CAT

FORMER labour minister Austin Liato mocked the two-year jail term slapped on him by Lusaka principal resident magistrate Aridah Chulu for concealing K2.1 billion, saying it is short and he should be granted bail pending appeal.

And a hush fell over court two at the Lusaka Magistrates' Court Complex yesterday morning when magistrate Chulu jailed Liato to two years with hard labour over K2.1 billion found concealed at his farm last year.

As he was being led away to Chimbokaila from the Lusaka Magistrates' Court holding cells, a suit-draped Liato managed to wave and smile towards his friends and relatives that came to see him off.

Hours after he entered Lusaka Central Prison Chimbokaila to start serving his jail term, Liato filed a notice of appeal against both conviction and sentence and applied for bail pending appeal.

In his affidavit in support for summons for an order for bail pending appeal filed in Lusaka Magistrate Court criminal registry yesterday, Liato said his appeal of magistrate Chulu's decision had a high chance of succeeding in the High Court because of the short conviction period.

"The trial court erred in law and in fact when it convicted the accused on the ground that he had failed to discharge the onus under Section 71 2 of Act No. 19 of 2010 during defence when it is not mandatory," Liato said.

"The trial court erred in law and fact when it held that the prosecution had no obligation to prove that the property subject of the offence charged is a proceed of crime."

Liato said further that magistrate Chulu erred when she convicted him in the absence of evidence that the K2.1 billion was reasonably suspected to be a proceed of a crime.

"The trial court erred in law fact when it convicted the accused against the weight of evidence adduced in court. I reasonably believe my appeal has high chances of success before the High Court and therefore if this honourable court does not grant me bail pending the hearing of the appeal, the said appeal shall be rendered an academic exercise," Liato said.

"The sentence of 2 years ordered to be served is short and if I am not granted bail pending appeal, it is likely that I will have served the sentence by the time the appeal is heard."

Magistrate Chulu has set May 28, 2012 as date of hearing of the application for bail pending appeal.

Apart from being jailed, Liato also had his Mwembeshi Farm where the money in issue was found concealed last year, forfeited to the state together with the K2.1 billion.

This is a matter where Liato, a former MMD member parliament for Kaoma Central Constituency, was charged with one count of possession of property suspected of being proceeds of crime contrary to Section 71 1 of the forfeiture of proceeds of crime Act No. 19 of 2010.

It is alleged that on November 24, 2011 in Lusaka, Liato was found with K2.1 billion concealed at his farm No. L/Mpamba/ 44 Mwembeshi reasonably suspected of being proceeds of crime.

Magistrate Chulu in convicting Liato held that the circumstances surrounding Liato's case gave rise to the irresistible inference that the money in issue could only have been derived from a crime.

"The prosecution called six witnesses while the accused opted to remain silent and did not call any witness," magistrate Chulu said.

"I am also satisfied that it was not necessary for the prosecution to prove a specific predicate offence or offences to show how the money was generated in order to establish the guilt of the accused."

Magistrate Chulu told a courtroom packed with Liato's sympathisers and relatives that he was legally entitled to remain silent when it came to his defence.

"Even if he chose to remain silent, the court would nonetheless analyse the questions asked in cross-examination to determine if at all there was any defence raised," magistrate Chulu said.

"It is a defence under this Section, if a person satisfies the court that the person had no reasonable grounds for suspecting that the property referred to in the charge was derived or realised, directly or indirectly, from any unlawful activity."

Magistrate Chulu said whilst Liato opted to remain silent, sub-section two of the Act under which he had been charged placed some onus on him to say something to the court's satisfaction as to the nature of the property.

"The question that now begs the answer is, has the accused discharged the onus placed on him under Sub-Section 2 above?" Magistrate Chulu asked.

"The Act under which the accused is charged is relatively new. This Act No. 19 of 2010 was assented to on 13th April, 2010...It is clear that this law was brought into force as part of the domestication of an international effort to police and criminalise the illicit flow of money and other property."

Magistrate Chulu said having considered the evidence before her, she had found as a fact that the K2.1 billion belonged to Liato and that the farm on which the money was found belonged to him.

She said it was also not dispute that Liato owned the money in issue.

"In the instant case, the accused elected to remain silent when placed on his defence. Although he was entitled to exercise his right to do so, the law required him to at least offer an explanation to the satisfaction of the court regarding his possession of the money," magistrate Chulu said.

"I therefore do not have any doubt in my mind that the prosecution have proved their case beyond reasonable doubt, and I find the accused guilty as charged and I convict him accordingly."

Liato's lawyer, Nellie Mutti said he was a first offender, who apart from deserving leniency had also served the country at the highest level.

"He is also a man who has got huge responsibilities both in terms of his family and his community in Kaoma where he comes from," Mutti said.

"In view of the circumstances surrounding the case, we urge the court to exercise leniency on him so that he is not given a severe sentence."
Mutti said the court was a fountain of justice.

Another defence lawyer, Mutemwa Mutemwa said Liato was suffering from heart problems and there was need to give him a suspended sentence to enable him access medication easily.

"So that he may be able to access medication easily in order to avoid death," said Mutemwa.

But magistrate Chulu said she would send Liato to two years in jail with effect from yesterday because he distorted the country's economy in the manner he concealed the K2.1 billion.

"It is the duty of the court to mete out the appropriate punishment," said magistrate Chulu as Liato's crestfallen relatives looked at her from the gallery.

Director of Public Prosecutions DPP Mutembo Nchito then applied to the court to have the K2.1 billion and the Mwembeshi farm where it was found concealed forfeited to the State.

Nchito said the property where the money was concealed had become tainted.
However, Mutti said Nchito should have raised the application through a notice but Nchito insisted that under the provision he had made the application what he did was correct.

Magistrate Chulu granted the application and agreed with Nchito that that was how applications of that nature were handled and that Liato's case was no exception.