DEFENCE LAWYERS IN SOCIAL CASH TRANSFER CASE INFORM THE COURT ABOUT ACC’s INTERFERENCE WITH A WITNESS AS THEY CLOSE THEIR EVIDENCE
Defence in the case before Magistrate Kaunda Sakuwanda at Ndola in which former Postmaster Master General McPherson Chanda and former ZamPost Director of Finance Best Mwaichi and former Director of Operations Isaac Kamwimba closed yesterday Wednesday 18th May, 2022 with a witness from ABSA Bank Abraham Sichilyango and Isaac Kamwimba as the last defence witnesses as the Court was informed that former ZamPost Corporation Secretary Mulawo Mwaba could not testify following a visit by the Anti – Corruption Commission (ACC).
Defence Counsel Chimuka Maggubwi submitted to the Court that Former ZamPost Corporation Secretary Mulawo Mwaba who had been served with a court subpoena to testify as a witness for the accused persons could not give his testimony as the Anti Corruption Commission (ACC) had proceeded to visit him and extract a written statement from him after he received the court subpoena which act amounted to interfering with the witness and had left the impression that the witness had been intimidated.
Submitting under oath Mwaba said; “your honour I may not state the exact dates but in the days after I was served with the court subpoena, I received a phone call from an ACC officer whom I informed that I had received a subpoena from the Court and, therefore, I advised him to consult with the lawyers at ACC whether it was appropriate for them to call and meet with me since I was under a subpoena from Court. A few days later, I received a call from ACC in which I was advised that a final decision had been made to visit me and take a statement from me. Two ACC officers subsequently visited me and obtained a written statement ”.
Following Mwaba’s submission Defence Counsel Chimuka Maggubwi submitted to the Court that since it was clear that the act of visiting a defence witness who was under a Court subpoena by the ACC amounted to interfering with the witness, Mwaba could not testify and the Defence was closing its defence. In response State prosecutor Daniel Ngwira submitted to the Court that the Prosecution was applying to the Court to summon “witnesses in reply” under Section 210 of the Penal Code to provide a rebuttal to the earlier testimony of the accused persons that the decision to place Social Cash Transfer funds into fixed deposits pending receipt of schedules from the Ministry of Community Development and Social Services was a management decision taken at a meeting.
Defence Counsels Cholwe Matibini and Chimuka Magubbwi however objected to the application on grounds that the defence witnesses had not introduced any new issues since the allegation that the decision to place social cash transfer funds into fixed deposits was made by the accused in their individual capacities had been made by a prosecution witness earlier. As such, in their testimony the accused were merely responding to earlier allegations by some prosecution witnesses. The Defence Counsels further submitted that under Section 210 of Penal Code the prosecution was further required to show that the matter for which they seek to call “witnesses in reply” could not have been reasonably foreseen despite exercising due diligence on their part.
The Defence argued that since the allegation that the three accused persons had carried out the decisions in their individual capacities had been central to the prosecution’s argument, they could have exercised diligence by bringing in witnesses from the former Board and Management of ZamPost to distance the Corporation from the decisions made. Consequently, the Defence argued that what the Prosecution was trying to do was to merely patch – up holes in their case against the accused and if the Court allowed them to do so, it would be an injustice to the accused as it would give the prosecution a “second bite on the cherry”.
The Court set 26th May, 2022 to deliver the ruling on whether or not to allow the prosecution to re – open its evidence by calling in new witnesses to provide rebuttal after the Defence closed its evidence yesterday.