Court has no powers to u-turn on its decisions and give back Muchemwa property – ACC
THE Anti- Corruption Commission says the Economic and Financial Crimes Court at Subordinate level, is devoid of powers to overturn its orders.
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ACC senior legal and prosecutions officer Daniel Ngwira says the Court has no authority to suspend the order it issued that Francis Muchemwa’s house, apartments, land with incomplete flats and two Faw trucks be forfeited to the State.
Muchemwa was on July 26, 2024 sentenced to three years imprisonment with hard labor by the EFCC for possessing a luxurious house, apartments, land with incomplete flats, and two Faw trucks worth over K12 million which were way beyond his legitimate source of income.
He was also fined K141,000 for obtaining pecuniary advantages by false pretenses when he drew the said amount from ZESCO as subsistence allowances for the trips he undertook yet he never filed an imprest retirement report.
Lusaka Chief resident magistrate ordered that the properties be forfeited to the State.
However, Defense lawyer Nathan Muyembe made an application that the order be suspended, pursuant to Section 331(b) of the Criminal Procedure Code (CPC) pending determination of the appeal against the conviction in the High
Court.
But Daniel Ngwira opposed the application saying Section 331 (b) of the CPC relates to restoration of property to rightful owners at the conclusion of the case and cannot be used to suspend a forfeiture order already made by the court.
He said asking the Court to suspend its ruling of July 29, 2024 for forfeiture, the interested parties are essentially asking the court to review its own order.
“We further submitthat this is not attainable as the court is functus officio on the issue of the forfeiture order. Your Honor in the case of Anti-Corruption Commission vs Bowman Chilosha Lusambo HPEF/02/2022 the High Court guided that a subordinate court cannot exercise revisionary jurisdiction over its own decisions,” he argued.
“Further in the case of Ituna Partners vs Zambian Open University Limited (SCJ No. 117 of 2008), it was held that the court becomes functus officio when all the substantive issues in the cause are determined by it.”
He said the substantive issues in Muchemwa’s case have been determined including the issue of forfeiture and the Interested Parties are therefore barred from raising it before court.
“Your Honor we pray that the application be dismissed for the reasons outlined above,” said Ngwira.
Magistrate Chibwili adjourned the case to August 6 to allow the defense to respond after which he will deliver a ruling on whether Muchemwa’s property will be restored.
By Mwaka Ndawa
Kalemba August 3, 2024.