DPP appeals against Chitotela’s discharge by the Magistrates’ Court
By Mwaka Ndawa
THE Director of Public Prosecutions (DPP) has disapproved the decision of magistrate Jennifer Bwalya to free former minister of tourism Ronald Chitotela from charges of possessing property suspected to be proceeds of crime.
Last month, magistrate Bwalya discharged Chitotela on the basis that the immunity granted to him earlier by the Anti-Corruption Commission (ACC) exempting him from prosecution was still in force.
DPP Lillian Siyunyi has also opposed the discharge of the seizure notice by magistrate Albert Mwaba which was granted to the ACC for them to seize Bowman Lusambo’s house in Chamba Valley, Lusaka.
Siyunyi, on behalf of the ACC, has lodged a formal protest at the Economic and Financial Crimes Court before the High Court of her intention to appeal the two decisions out of time for reasons that she did not have access to the case records during the requisite period granted to oppose the court’s decision.
“The DPPn(ACC) appeals against the discharge of Ronald Chitotela on May 18, 2022 at the Subordinate Court on two counts of possession of property reasonably suspected to be proceeds of crime. The DPP hereby gives notices that she desires to appeal to the High Court against the Judgement of the Court,” indicated Siyunyi. “The DPP appeals against the ruling of magistrate A K Mwaba dated 19 May 2022 in the subordinate court to discharge the warrant of seizure placed on Bowman Lusambo’s house in Chamba Valley. The DPP hereby gives notice that she desires to appeal to the High Court against the ruling of the subordinate court on the following grounds…”
The Economic and Financial Crimes Court which has been established at High Court level is an appellate court which will hear and determine appeals relating to matters arising from its sibling before the Magistrates’ Court.
However, the appellate court is not yet operational as a jury has not been sworn in to determine cases relating to financial crimes.
On May 18, magistrate Bwalya who was part of the team which was constituted to preside over matters before the Economic and Financial Crimes Court at the subordinate court, exonerated Chitotela for acquiring a house in Lusaka’s Ibex Hill valued at K380,000 and obtaining a K500,000 from Veil Construction Limited through his company RKC Travel and Guide Limited, using ‘illegal gains’.
She ruled that Chitotela’s exemption from prosecution by the ACC dated June 24, 2019 was still in effect, and prosecuting him for possessing property suspected to be proceeds of crime when he was let off the hook by the Commission upon forfeiting his property would amount to penalising him twice.
But according to her three grounds of appeal in contest to magistrate Bwalya’s ruling, Siyunyi argues that the trial court erred on point of law by discharging Chitotela when it held that arraigning him before court after a settlement would amount to double jeopardy before invoking section 277 of the Criminal Procedure Code.
“The trial count misdirected itself on a point of law when it held that arraigning the accused was tantamount to double jeopardy as provided for under section 138 of the CPC Chapter 88 of the laws of Zambia when no plea was taken before any other court of competent jurisdiction for purposes of trial,” she argued. “The trial court below misdirected itself to go into the merit of the settlement without giving the prosecution an opportunity, notwithstanding that the defence’s submission was anchored on section 138 of the CPC Chapter 88 of the laws of Zambia.”
In relation to Lusambo’s case, the DPP argues that magistrate Albert Mwaba fell into error when he held that both a warrant of seizure and a restriction notice issued under the ACC have the same effect.
According to the Zambian laws the warrant of seizure issued by a court and a seizure notice issued by director general of the ACC have different dates of expiration though they serve the same purpose of restricting the use and transaction of property under investigation.
A restriction notice issued by the director general of an investigative wing of the State and expires after 90 days, and upon expiration, the owner of the property can perform transactions in the absence of a warrant of seizure.
The warrant of seizure issued by a court has no specific expiry date as it remains in force until a matter is disposed of.
Siyunyi argued that the lower court erred in law by holding that the warrant of seizure was irregularly issued, as an affidavit in support was not filed in court as required by law when there is no legal requirement for a warrant to be supported by an affidavit under Zambian laws.
“The court below misdirected itself in law by having recourse to the subordinate court (civil jurisdiction) rules, chapter 28 of the laws of Zambia when warrants for purposes of criminal investigations are governed by the CPC chapter 88 of the laws of Zambia,” said Siyunyi. “The court below erred in law when it pronounced itself on the particulars of the warrant of seizure when the respondent had moved the court on two specific grounds for setting aside the warrant of seizure which specific grounds did not challenge the warrant for being defective in a material particular.”
Last month, magistrate Mwaba quashed the warrant of seizure which gave the ACC grip on Lusambo’s property for being flawed.
Magistrate Mwaba ruled that the affidavit in support of the warrant of seizure had no registry date stamp, which showed that it was taken for signing without being filed before court and was wrongly issued.
He said the document signed by the court as a warrant of seizure was just a mere statement that the properties were tainted, but not a directive to any law enforcement officer to seize Lusambo’s house and it did not serve the purpose it was intended as it was irregular.
“The warrant of seizure does not serve the purpose for which it was intended. Even if it did, it could still not be in order to have both warrants of seizure and restriction notice on the same properties in force at the same time,” said magistrate Mwaba. “For the forgoing, the application to set aside the document which prima facie is warrant of seizure is allowed. The document which was issued by this court as a warrant of seizure on April 13, 2022 be and is hereby set aside.”