Esther Lungu’s appeal cannot succeed -State argues
DEPUTY chief State advocate Magaret Chitundu says there are minimal chances of Esther Lungu’s appeal succeeding before the Court of Appeal in which she wants to challenge a ruling of the Economic and Financial Crimes Court.
She explained that it was settled law that proceedings in a lower Court can only be suspended by a Superior Court if exceptional circumstances are shown.
On March 21, 2024, the Court of Appeal prevented the Economic and Financial Crime Court from hearing evidence on how the former First Lady acquired high-end 15 double storey flats in State lodge area, when she had no viable source of income as established by the Drug Enforcement Commission.
The Court granted Esther an ex-parte order staying the forfeiture proceedings before the EFCC pending determination of an appeal against its refusal to allow her cross examine DEC investigations officer Emmanuel Khondowe on his findings.
The former first lady had raised a preliminary issue on Khondowe’s standing in the matter, for deposing an affidavit when he is not a public prosecutor.
She argued that Khondowe was not a certified accountant for him to conclude that her properties were tainted.
During interparte hearing before judges Mwinde Siavwapa, Court president, his deputy Chalwe Muchenga and Yvonne Chembe Esther’s lawyer Desislava Findlay argued that every party must be allowed to present its case by challenging evidence and adducing evidence.
She said if the order staying proceedings is not confirmed and proceedings before the EFCC are determined before the appeal, Esther’s rights will be lost.
“It is not in the interest of Justice to strike off the appeal. The stay of proceedings is intended to preserve the integrity of the appeal,” Desislava said.
“We have highlighted the prejudice that will be suffered by the applicant should the stay of proceedings not be continued. The Forfeiture of Proceeds of Crime Act Ssection 11(4) provides for an automatic stay pending the determination of the substantive appeal.”
She submitted that It is imperative that the stay of proceedings be maintained to avoid rendering the appeal pending determination before the Court of Appeal an academic exercise.
In reply Chitundu argued that the five grounds of appeal relied upon by Esther have no chances of success.
“The grounds they have raised have already been settled by higher Courts in this land. Staying the proceedings in the EFCC is merely going to delay proceedings in the case before that Court,” she said.
Chitundu argued that the section cited by Desislava was wrongly cited and does not apply to the stay before court as it only applies to instances where there is a final forfeiture order.
“We pray that this court observes the rulings of the Court not to stay proceedings in the case because there is no likely prejudice that will be occasioned to Esther as the appeal they have embarked on is not likely to proceed,” said Chitundu.
In reply Desislava said the State has not demonstrated how the entire five grounds of appeal are unlikely to succeed.
“ The state has only addressed one ground of appeal and there is an attempt to challenge another. It seems they have no authority to show that the other three grounds are unlikely to succeed,” she said.
“The state has not argued against the special circumstances highlighted by Esther. Nothing has been brought forth to demonstrate that they are not special and should not be considered.”
She urged the court to confirm the order granted ex-parte.
Judge Siavwapa reserved Ruling for a date to be communicated to the parties.
In this case the Director of Public Prosecutions (DPP) has requested the Economic and Financial Crimes Court to forfeit Esther’s 15 semi-luxurious houses State lodge area worth K41.5 million on reasons that they were acquired using illegal means…https://kalemba.news/…/esther-lungus-appeal-cannot…/
By Mwaka Ndawa
Kalemba