AMOS CHANDA TELLS COURT TO AQUIT HIM.
…says ACC has failed to prove charge beyond reasonable doubt and evidence not only manifestly malicious, sensational but also self-contradictory, making unsafe for court to conviction…
LUSAKA, (August 14 2023)— LAWYERS representing Amos Chanda have made an impassioned final call for his acquittal because the prosecution has failed to prove the case against him beyond any reasonable doubt owing to their evidence being not only manifestly malicious, sensational and glaringly self-contradictory, making it unsafe for the court to rely on for a verdict of guilt.
“These contradictions should make it awfully unsafe for this honourable court to convict the accused on any of the charges in the indictment. We therefore urge the court to dismiss the prosecution body of evidence in its entirety,” Chanda has submitted through his lawyers.
In their final submissions making the case for the accused’s acquittal, the lawyers have told Magistrate Dominic Makalicha, sitting as Lusaka Chief Resident Magistrate that it is the position of the defence that the glaring contradictions between and among the seven State witnesses have created sufficient doubt warranting the court to dismiss the case in its entirety, acquit the accused and let them go home.
“The only consistent thing cascading through the entire body of evidence by the seven state witnesses is a pattern of contradictions. It is quite extraordinary that seven people attending the same crime scene at the same time, can arrive at such extreme variations in their accounts of the alleged occurrences of the day,” submits defence counsel Timmy Munalula of Lusenga Mulongoti Advocates.
On 2 November 2021, the Anti-Corruption Commission (ACC) arrested Amos Chanda (A1), his wife Mable Nakaundi-Chanda (A2), and her sister Ruth Nakaundi-Mulenga (A3), and jointly charged them with obstruction and using insulting language.
All the seven witnesses, but one, are the same ACC officers who complained, investigated, testified and prosecuted the case against the accused. But the defence has contended that the prosecution has failed to prove their allegations beyond the reasonable doubt required for the court to find a verdict of guilt.
“In the light of these diametrically opposed testimonies between PW1 [prosecution witness number one) and PW4 (prosecution witness number four) on the one side, and PW6 on the other, it is precariously unsafe to assign any form of credibility to the testimony of PW1.”
“There are various problems with the evidence by PW1 (William Chilufya), among them is that since he said he and PW4 (Sweathen Lusaka) told A3 (Mrs Mulenga) that she could not enter the premises (at 67 Elm Road, Woodlands), means PW1, PW4 and PW6 (Friday Tembo) were at the same place at the same time outside the gate when A3 arrived and requested them that she enters the premises.”
“How then” asks the defence, “can these three investigations officers, who are also prosecution witnesses at the same time, have such yawning contradictions in their recollection of an event that occurred before them at the same time and the same place, addressing the same person who made only one request to allow her to enter the premises?”
The defence submitted that in the light of the various inferences that may arise due to the contradictory evidence within the prosecution team itself, even before the opposition evidence by the defence, what sort of inference (s) can the court draw, other than giving the accused the benefit of doubt that the crimes being alleged did not in fact occur?
“How can three people manning the same gate, at the time, have such varying accounts of the same incident about the same person, in such a short time? Passing through the gate is a matter of seconds and not minutes, the defence submitted.
The defence further stated for PW1 and PW5 to allege that they saw a person who was not present, can only be attributed to delusional manifestations inspired by malice arranged to frame the accused.
“A2 [Mrs Chanda) was never at any time present at 67A Elm Road but only at 67B, her residence.”
The defence observed that it is strange that one of the State witnesses, Ms Lomutuzi Bili, (PW2) demonstrated some extraordinary ability to narrate a series of events that did not happen.
“This PW2 submitted that she recorded in writing, all the items taken from the room. How she could see items and be able to record in the note book and on ACC Form 12, in a room that she claimed was pitch dark, remains a mystery only she could explain.”
“This court must NOT render any credence to this un-collaborated evidence which was also contradicted by PW6. Apart from the fictional concoctions to malign the accused, the evidence by PW2 falls flat on its back in the light of PW4’s evidence that none of the things she said was witnessed by him.”
“PW4 [Mr Lusaka) insisted that he was sober, diligent and perfectly normal on the night and that he paid particular attention since he was called in to reinforce the search.”
Ms Bili’s sensational narration of a series of events that did not occur would have been hilarious if it were not so serious as to advance a false testimony upon which she was seeking a conviction of innocent people who did not do any of the things she alleged, says defence counsel Munalula.
“To the contrary, PW2 and her workmate Ms Neeta Kufekisa infact had a cordial encounter in the room where they even asked A3 to allow them to step on the foot massage machine to relax because they had a long day. Neta even exchanged phone numbers with A3. The evidence by PW2 cannot therefore be relied upon for want of collaboration and also for its contradictions with that of PW4.”
As a matter of fact, this honourable court will recall that PW2, revealed during cross-examination that fictional literature and Nigerian movies were part of her favourite pastime hobbies, the submission reads.
The defence also draws the court’s attention to the evidence of another witness Mr. SWEATHEN LUSAKA (PW4), who could not tell the difference between Roma Park gated community in Roma Township and State Lodge in New Kasama and also mistook the two areas as neighbouring townships.
The defence also pointed the court to this witness’ extended struggle to identify which of the three bedrooms the ACC searched on the night of the alleged crimes. “After he finally identified the room, PW4 contradicted PW2’s evidence that one could only enter this room backwards, and with eyes closed and that only females were allowed to enter. This PW4, a man entered, with his eyes wide open, and forwards not backwards as falsely alleged by PW2.”
“PW4 also said during the search on 27 October 2021, the room in question was as neat as it looked during the scene visit and that it was well-lit with clean white tiles as opposed to PW2’s tales of dirty, dark and unkept premises. He also said he peacefully and successfully completed searching the room, collected some items and recorded them on the prescribed forms without any difficulties.”
“How then would PW2 and PW4 have paradoxically opposed versions of events of the same room they searched at the same time?
The defence says this demonstrates how unreliable the entire body of the prosecution evidence is and must therefore be dismissed in its entirety.
“It is would be unsafe for this honourable court to rely on this contradictory evidence and pass any verdict of guilt in the light of these very wide gulfs of doubt created by the prosecution witnesses,” says Mr Munalula.
Mr Munalula also pointed to dereliction of duty as a major ground for acquittal stating that the arresting officer, Mr JOSEPH MBEWE, (PW7) miserably failed to carry out his duties before arresting the accused persons.
“This witness said he did not know which law Amos Chanda broke, or whether or not he broke any law at all because they are thousands of laws in Zambia and he was therefore not definite what to specifically narrow his answers to regarding the charges he laid against the accused.”
The defence therefore alleged dereliction of duty and cited Peter Yotam Hamenda v The People (1977) ZR 84, which held that: “where the relevant matter needs to be investigated but the investigating agency chooses or fails to investigate, that failure to investigate prejudices the accused, thus the accused ought to be acquitted.”
PW7 told the court that it was right for the ACC officers to refusing to produce identity cards when Mr Chanda asked for the identification of the strangers in his yard. But the witness later retracted this statement and said the officers were wrong not to introduce themselves because the law (ACC Act) did not allow them to refuse to identify themselves.
The identity card was the only way the ACC officers could identify themselves and that the person under search was entitled to demand for the identity cards, he said.
The defence also reminded the arresting officer that he did not present any independent witnesses as all the complainants, witnesses and prosecutors were all from the ACC.
And in his summary of the submissions, the defence counsel said the accused were denied the right to fully defend themselves when their key witness, the acting Director-General of the ACC then, Mr Silumesi Muchula, who they believed possessed important evidence that would have gone to their innocence, was not allowed to testify before court.
“This was an assassination of justice. This is more so in the light of this court’s earlier ruling that allowed ACC officers to testify in their own cause, without invoking the immunity of staff pleadings that they advanced in the case of the acting Director General. What was allowed of the prosecution was denied of the defence,” he said?
“To deny the accused this opportunity was to deny them the constitutionally guaranteed rights under Article 18 [2) (e) of the Constitution (BILL OF RIGHTS) which provides that:
(2) Every person who is charged with a criminal offence —
(e) “shall be afforded facilities to examine in person or by his legal representative
the witnesses called by the prosecution before the court, and to obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court on the same conditions as those applying to witnesses called by the prosecution.”
The evidence before court has clearly shown that there were serious contradictions and that the offences were not established. As the record will show, each and every prosecution witness denied ever personally being insulted by A1 at all the four sites that were under search that day. Further, PW6 insisted A2 and A3 never ever insulted him.
“We take solace in the case of EMMANUEL PHIRI VS THE PEOPLE 1978 ZRL P. 79 and as emphasised in the most recent case of THE PEOPLE VS. OBVIOUS SUMMERTON MWALITETA AND 4 OTHERS HP/231/2016, that: “…the courts are required to act on evidence placed before them. If there are gaps in the evidence, the courts are not permitted to fill them by making assumptions adverse to the accused…”
“YOUR Worship, by the facts and the law cited above, which the court’s record will show, the court should consider acquitting the accused persons and let them go home,” he said.
How then could these three, A1, A2, and A3 be able to have “jointly and whilst acting together” in unison, insult the ACC?
A1, A2 and A3 were never ever at Njolwe at any time when ACC officers were there.
A2 and A3 were never at State Lodge at any time that day.
And all the witnesses say A1 did not insult anyone at 67 Elm Road.
A2 says she was never in 67A residence where she is falsely accused to have acted jointly with A3. And evidence in rebuttal to challenge this evidence was not demonstrated by the prosecution as earlier promnised.
“Your Honour we strongly rely on the case of SENSENTA VS. THE PEOPLE 1976 ZR P. 184 where it was held that the fabrication of prosecution evidence is fatal to the prosecution case and has the effect of weakening such a case. We further invite the attention of this Honourable Court to the case of HAONGA AND OTHERS VS THE PEOPLE 1976 Z.R. 200, the Supreme Court of Zambia held that: “Where a witness has been found to be untruthful on a material point, the weight to be attached to the remainder of his evidence is reduced…”
“The lies and fabrications of LOMTHUZI BILI, must be examined with care, especially that the court was moved to the premises and that the other officers said there was nothing in line with the Nigerian Movie narrated in the mouth of this award winning author of fictitious content [LLOMTHUZIOMTHUZI BILI PW2).”
The defence also cited Mwewa Murono v The People (2004) ZR 207. “In criminal matters: the rule is that the legal burden of proving every element of the offence charged and consequently the guilty of the accused lies on the prosecution from the beginning to the end.”
There was no independent testimony as was held in the case of R v Baskerville (1916) 2 KB 658. There was no evidence that confirms in some material particular not only the evidence that implicates the accused, not only that the crime has been committed but also that accused committed the offence.
We humbly invite this Honourable Court to the Jurisprudence in the case of Mavuma Kabonje Situna v The People (1982) ZR 211
We humbly invite this Court to put into consideration all the relevant material placed before it and consider the failures of the persecutions to prove their allegation.
The lawyers also made the case that the ACC investigators who complained against the accused were clearly witnesses with an interest to serve. “In the case of Boniface Chanda Chola and 2 other v TP [1988/89) ZR 163 where witnesses are not necessarily accomplices, the critical consideration is not whether the witness did not infact have interest to serve but whether they were witnesses who because of the category into which they fall may have a motive to give false evidence.”
In the case of COSMAS BALA MAMBWE v THE PEOPLE (1987) Z.R. 11 (S.C.), the term “any person was said not to include a police officer. The officers of the ACC may lie in this umbrella and are required to operate according to the law to avoid confrontational events. (Section 63 [c) of the Anti-corruption commission Act No. 3 of 2012).
Your Worship the reading of the above provision is highlighted s as follows:
Any Person who;
(a) Obstructs, assaults, hinders or delays an officer of the Commission in the lawful exercise of the powers conferred on the officer under this Act; commits an offence and is liable, upon conviction, to imprisonment for a period not exceeding two years.
Surely the Prosecutions failed to prove this offence, because they successfully searched the premises and clearly demonstrated that there was nothing of interest that they found as can be seen in the court record.
“This honourable court is invited to consider the evidence before it and its visible contradictions and its failure to prove the offences beyond reasonable doubt. The court visited the house where it was alleged that the officers were insulted and there were some unbelievable practices. In the presence of the court PW6 denied what PW2 told the court.”
Your Worship, in the case of Saluwema v. The People (1965) ZR4 (CA), it was stated that: “If the accused’s case is ‘reasonably possible’ although not probable, then a reasonable doubt exists, and the prosecution cannot be said to have discharged its burden of proof.”
“Any doubt Your Worship, be it in logic or reality as can be seen in the contradictions of the prosecution witnesses, should be ruled in favour of the accused.”
“We continue to be fortified by the wealth of authorities Your Worship, in the case of Woolmington V the DPP (1935) AC 462 , where it was fortified that:” …throughout the web of criminal law one golden thread is always to be seen that it is the duty of the prosecution to prove the accused guilt….If at the end of, and on the whole case, there is a reasonable doubt, created by the evidence given by either the prosecution or the accused, if the prosecution has not made out the case, the accused is entitled to an acquittal.”
The defence also invited the court to the case of BARROW AND YOUNG -VS- THE PEOPLE, (1966) ZR 43 where it was held that: “Where one prosecution witness gives evidence in favour of the defence, and one against, the Court should resolve the doubt in favour of the accused in the absence of any good reason for preferring one witness’s testimony.”
In light of the evidence given in favour of the accused by Friday Tembo and Sweathen Lusaka, this court remains with no option but to acquit the accused persons.
But in their counter submissions the ACC prosecutor Martin MAYEMBE says Amos Chanda’s utilisation of his constitutional right to remain silent in his defence is an admission of guilty.
” Silence gives consent. A suspect silent in the face of an accusation has tacitly admitted the crime,”.Mr Mayembe submitted in the ACC final submissions filed on August 3.
But the constitution of Zambia in Article 18 guarantees the right to all accused person to choose to remain silent as s defence or to given evidence on oath. It is also the position of the law it is not the duty of the accused to prove their innocence but the duty of the prosecution to prove the guilty of the accused by any reasonable doubt.
Mr Mayembe also quoted the Magistrate’s ruling at the case-to-answer stage saying “this honorable court had established as a matter of fact that insulting language was used against ACC officers.”
He also alleged that A2 and A3 failed to defend themselves. But A2 and A3 had given evidence on oath and denied all the allegations by the ACC.
He described the defence as bare denials but the two accused had challenged the ACC to any tangible evidence of insults and obstruction which they did save for the testimonies of the same complaints who were also State witnesses and prosecutors.
Ends …