EFCC refuses to discharge Dr Malama, others on the premise of lapse of time
LUSAKA chief resident magistrate Davies Chibwili said he is not out of season like fresh groundnuts in the month of September, in prosecuting former minister of health permanent secretary (technical) Dr Kennedy Malama and others over their alleged failure to follow guidelines in the procurement of 50 ambulances.
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Magistrate Chibwili ordered that he will hear the case to its conclusion, as the five month period of prosecuting the eight comes to an end on September 13, and increased the life span of the Court proceedings by 45 days.
Dr Malama and seven others are being before the Economic and Financial Crimes Court for wilful failure to comply with applicable procedure in procurement relating to the purchase of 50 ambulances for the ministry of health at an exorbitant price.
Dr Malama is jointly charged with, Dr Jabbin Mulwanda, Dr Muzaza Nthele a former diplomat in Beijing China, Rebecca Njobvu retired, of zambia air force area, Dr Maxmillian Bweupe a former diplomat in Washington DC, Dr Gardner Syakantu, former ministry of health permanent secretary administration, Mulalelo Akakulubelwa and Wilson Lungu a Chief procurement officer at the ministry of mines, for willful failure to comply with applicable procedure contrary to Section 34 of the Anti-Corruption Commission Act no.3 of 2012.
At the last sitting lawyers representing the accused, Lubinda Linyama, Willis Muhanga and Jonas Zimba asked the Court to dismiss the case for want of prosecution on reasons that the five months period in which to try the accused had elapsed.
The trio made the application pursuant to Statutory Instrument no. 10 of 2024 arguing that the State did not request for the extension of time before the expiration of the five months.
Linyama, Muhanga and Zimba said Rules of the Economic and Financial Crimes Court ought to be strictly adhered to, as the Court itself did not issue an order extending time before it elapsed.
ACC prosecutor Daniel Ngwira asked the Court to dismiss the application as the law clothes it with the powers to move its own motion extending time.
He urged the Court to invoke Rule 3(2) of the Economic and Financial Crimes Rules as read together with section 37 of CAP 2.
In his ruling magistrate Chibwili clarified that the five months period is expiring on September 13.
He said the case had suffered 20 adjournments as a result of the defense raising numerous preliminary issues and applications, and made it impossible for him to conclude the case within the specified time frame.
“The rules do not provide for the consequences of the elapsing of time but, it states that the parties can apply for the extension of time,” Magistrate Chibwili said.
He said just like winter maize is never out of season, there was no loss of jurisdiction on his part.
“Trial will continue as I will extend the time to 45 days. The application for the matter to be referred to the High Court does not stand. I hereby order that trial will continue. I hereby extend the time of hearing for 45 days,” magistrate Chibwili ordered.
Muhanga sought clarity on when the 45 days would be effective and magistrate Chibwili indicated that it would be in effect from September 3, 2024.
He warned that he will not entertain unnecessary adjournments in the case.
The matter comes up on October 4, 2024.
By Mwaka Ndawa
Kalemba September 4, 2024.