By Mwaka Ndawa
PAMBASHE PF member of parliament Ronald Chitotela has contested his prosecution for acquiring a house and K500,000 using ‘illegal gains’ on reasons that he entered into an agreement with the Anti-Corruption Commission to exempt him from prosecution on these charges.
Chitotela has since been admitted to K20,000 cash bail by the Economic and Financial Crimes Court on a condition that he provides two working sureties from reputable organisations who have been bound in the sum of K200,000 to be paid in their own recognisance.
This is in a matter where Chitotela is facing two counts of possessing property suspected to be proceeds of crime.
Allegations are that between May 1, 2017 and October 30, 2018, Chitotela possessed property No. 3270/M, valued at K380,000 suspected to be tainted.
In the second count, it is alleged that Chitotela between November 3 and December 5, 2017 received K500,000 from Veil Construction Limited through RKC Travel and Guide Limited account No. 62489001398 suspected to be ill gotten.
Before Chitotela could take plea before magistrate Jennifer Bwalya, his lawyer Kampamba Kombe applied that Chitotela’s charges be dismissed pursuant to Article 18(5) of the Constitution which states that a person who has been tried or convicted on a specific offense shall not be tried on the same offence.
“A quick look at the indictment will show that the two counts were a subject of a consent settlement pursuant to Section 80 of the ACC Act No. 3 of 2012. The consent settlement will show count one and two of the indictment,” Kombe said. “There was an undertaking by ACC not to institute any criminal proceedings against Chitotela in relation to the charges. We are taken aback by the ACC to indict the accused person on the same charges.”
Kombe asked the court to determine as whether or not the settlement falls within the ambit of Article 18(5) of the Constitution.
In response, ACC prosecutor Martin Mayembe argued that Chitotela was not tried before any court in relation to the charges.
“Trial begins after a person takes plea and the accused did not take plea. The submission by the defence of the acquittal is misplaced. The accused never appeared before court in relation to the said charges. The question before Court is whether Section 80 of the ACC Act No. 3 of 2012 may result in an acquittal,” Mayembe submitted. “There is a way undertakings can be resolved when there is breach and the State will be ready to defend. We pray that the application be dismissed and plea be taken by the accused.”
In response, Kombe said Mayembe was blank about the consent which bordered on the matter before court.
“This is a matter that was called in court and the accused took plea. It was on that particular day when the prosecutor frowned that the settlement would be filed in court. The settlement was endorsed by the then chief resident magistrate. The settlement was imposed by the ACC and they were satisfied that the accused had met the requirements of section 80 of the ACC Act,” he said. “For the prosecutor to say that there was no trial is trying to mislead the court. The State have not given evidence in their response that the consent has been set aside or breached. The breach of this undertaking is neither here nor there. As defence we are sure that the accused was tried before a competent court which resulted in the consent settlement.”
He added that Section 128 of the Criminal Procedure Code was instructive that a person could not be tried on the same facts and it was the reason they had raised a plea in bar.
Chitotela’s other lawyer Benjamin Mwelwa said if the ACC breached the consent, the right thing to have been done was to commence an action before court in order to have an opportunity to defend itself.
“After it has been found that there is a breach the court will set aside the consent. The State will be at liberty to open the offence subject to that consent.
The breach has not been cited but we are glad that the State has conceded that there was a consent and the same facts before court are the same in the consent which was registered before court complying section 138 of the criminal procedure code and 80 of the ACC Act,” Mwelwa submitted.
And Mayembe raised a preliminary issue pursuant to Rule 33 (1)(d) of the legal practitioners’ rules requesting that Kombe recused himself as he was a potential witness of the Commission in the matter.
“Counsel is a potential witness and we don’t know what will happen at the time we will request him to testify. We submit that Andrew Kombe of Messrs Andrew Kombe and Partners recuses himself from participating in the proceedings in any manner and if possible, not attend proceedings as he is a potential witness,” said Mayembe.
In response, Kombe said though it was a preserve of the State to have him on their list of witnesses, he wouldn’t have bothered to appear before court and represent Chitotela if at all he was earlier informed by the ACC.
“I’m surprised the learned PP would indicate in court that I’m a potential witness,” said Kombe.
Supplementing Kombe’s submission, Mwelwa said the state cannot continue investigating the matter when it was already before court.
“No statement has ever been recorded from Kombe, therefore the submission does not fall under Rule 33(d) of the legal practitioners rules. The State is asserting misconduct on the part of Kombe. We submit that Kombe is not a potential witness as no record has been exhibited before court. We pray that the application be dismissed,” said Mwelwa.
In response, Mayembe said proceedings before the subordinate court were by ambush therefore statements or depositions could not arise as witnesses were called at the instance of the court.
He added that Kombe was informed that he would be a witness in the matter.
Magistrate Bwalya has reserved ruling on both applications for May 18.