Esther Lungu seeks suspension of forfeiture case few days before main hearing

Esther Lungu seeks suspension of forfeiture case few days before main hearing

WITH only few days left to have her day in Court and explain how she managed to acquire her 15-semi-luxurious flats, former First Lady Esther Lungu has asked the Economic and Financial crimes Court to halt her ‘graft’ so that she can challenge one of its rulings.

Esther had asked the Court to refer her graft case to the Constitutional Court for a determination on whether the Chief Justice has power to constitute the EFCC through a statutory instrument as a division of the High Court.

She argued that there is a difference between a specialized Court and a division of the High Court.

Judge Pixie Yangailo who delivered a ruling on behalf of Mwanajiti Mabbolobbolo and Vincent Siloka said the Court’s obligation to refer a question to the Constitutional Court for determination is not triggered by a mere application for referral but on whether the question meets the threshold for the same.

Judge Yangailo said Esther cannot use the forfeiture proceedings to challenge the enactment of the fast track court as she should have petitioned the ConCourt for redress.

“The application for constitutional reference is denied. Consequently it follows that the application for a stay of these proceedings is dismissed,” she said.

The Court also expunged some paragraphs from Emmanuel Khondowe’s affidavit in support the motion for the confiscation of Esther’s semi-luxurious flats, on reasons that they offend Order 5 Rule (16) of the High Court Rules.

Esther had also raised a preliminary issue on Emmanuel Khondowe’s interest in the matter, for deposing an affidavit when he is not a public prosecutor.

However judge Yangailo directed that the affidavit in support of the application is not supposed to be sworn by a public prosecutor for it to be properly before Court.

She said Khondowe investigated the case and he is the right person to depose to the affidavit as he has personal knowledge of the facts of the case.

“The contention by Esther that Khondowe has no locus standi lacks merit,” judge Yangailo ruled.

In relation to the argument by Esther that Khondowe is not a certified bean counter to analyze her financial status and draw a conclusion that the property is tainted, the Court guided that the former First Lady is at liberty to challenge the findings of the investigations officer.

“This court in considering this application will make a decision based on the facts before it and is not bound by the evidence of a qualified person,” judge Yangailo said.

She ruled that it is insignificant to institute criminal proceedings and prove that the 15 double storey houses are tainted before a non-conviction based forfeiture can be considered, as the subject for determination is in the application.

Judge Yangailo added that in the event that Esther is found wanting she has the opportunity to prove the legitimacy or interest in the alleged tainted properties.

The Court slated hearing of the main case for March 21, 2024 but Esther has hinted of her intentions to challenge the decision before the Court of Appeal as she was dissatisfied with the ruling.

In an affidavit in support of ex-parte summons for an order to stay proceedings pending determination of interested party’s appeal against a composite ruling, Esther said the appeal may be rendered nugatory as the main case is scheduled for next month.

She said her right to a fair trial might be infringed on.

Esther argues that the jury erred when it ruled that the specialized Court enacted by the Chief Justice is a division of the High Court.

She said the Court erred when it held that the matter was properly commenced.

Esther said the Court erred in law and in fact in failing to pronounce itself on her application to set aside the case for irregularity.

In this case the DPP has requested the Court to penalise the landlady by forfeiting her 15 semi-luxurious houses worth K41.5 million on reasons that they were acquired using illegal means.

By Mwaka Ndawa

Kalemba