Yamba seeks to know what law he has contravened
By Mwaka Ndawa
FORMER secretary to the treasury Fredson Yamba has insisted that the charges he is facing do not disclose the law relating to management of public property which he is alleged to have contravened.
Yamba has asked the Economic and Financial Crimes Court to refer his case to the High Court pursuant to Article 28(2)(a) of the Constitution for determination on whether the charges of willful failure to comply with the law relating to management of public property violates his right to a fair trial as guaranteed by Article 18 of the Constitution.
In this matter, Yamba is accused of not adhering to guidelines relating to the management of the national treasury when he approved the transfer of K154, 201,197 to purchase a chancery for the Zambian mission in Turkey.
He is jointly charged with former minister of foreign affairs Joseph Malanji who is facing three counts of possessing property suspected to be proceeds of crime.
It is alleged in count one that Yamba, on dates unknown but between January 1, 2020 and August 31, 2021 being a secretary to the treasury, whilst acting with other persons unknown allocated and authorised the transfer of K108, 401,197 to the Zambian mission account in Turkey for the procurement of real estate without following the law.
In the second count, it is alleged that Yamba, on dates unknown but between January 1, 2020 and August 31, 2021, being a secretary to the treasury, whilst acting together with other persons unknown, allocated and authorised the transfer of K45,800,000 to the Zambian mission account in Turkey for the procurement of real estate without following the law.
It is alleged in the third and fourth count that Malanji, on dates unknown between January 1, 2020 and August 31, 2021 possessed a BELL 430 helicopter and a BELL 206 Jet Ranger Helicopter Be which was reasonably suspected to be tainted.
It is further alleged in the fifth count that
Malanji, between January 1, 2020 and August 31, 2021 possessed Royal Gibson Hotel in Kitwe using dirty money.
When the matter came up for continuation of trial before principal resident magistrate Jennifer Bwalya, Yamba’s lawyer Luckson Mwamba of Messrs Simeza Sangwa Associates asked the court to refer the matter to the High Court for a determination on whether the two charges violate his right hearing as they do not disclose the specific law he failed to comply with.
Mwamba argued that Article 18 of the Constitution guarantees Yamba’s rights to a fair hearing and his rights to be informed in detail about the offences he was facing.
“Count one and two as they stand are a violation as guaranteed under Article 18. The law alleged not to have been complied with has not been disclosed in both counts and the accused has no idea what case he is coming to meet before this court, because details have not been disclosed. The effect is that he cannot properly formulate a defence to the charges as they stand and the same is a violation of his rights,” Mwamba said. “This question must be referred to the High Court so that before we proceed we are sure that we are all not taking part in the violation of Yamba’s rights. If the High Court says his rights have been violated then obviously amendments have to be made so that we stay in line with the Constitution.”
Mwamba said the right to a fair hearing was one of the most significant rights in the justice system and every officer of the court was duty bound to ensure that Yamba had a right to fair hearing.
In response, State prosecutor Gamaliel Zimba said the application should be dismissed as it was an attempt by the defence to have protracted litigation in the matter by causing it to delay before it is concluded.
“The essence of the motion is a revisit by the defence to the application they made earlier before trial commenced. The court competently ruled on the application and trial commenced. The defence has now come back to you in a different clamour suggesting there is a constitutional issue that requires determination by the High Court,” Zimba said.
He said the law had been clarified as Yamba was charged under the ACC Act and the periods in which the offences are alleged to have been committed have been disclosed and what he is alleged to have done.
“As the court ruled out there is a number of laws that govern the management of public property. Looking at the many laws that govern the management of public property, should the state flood count one and two with all those pieces of legislation? Certainly, which we cannot as what is sufficient is reasonable information which has been given to the accused,” he said further. “The application is frivolous and vexatious and should be treated as such by the court because it is meant to delay the proceedings. The state has its witnesses lined up so that the matter is expeditiously dealt with and the accused know their fate. These applications are a waste of time for both the state and the accused.”
Mwamba argued that the issue bordered on the violation of human rights as the application that was raised at the last sitting was different from the issues relating to the Bill of Rights in accordance with article 28(2) and the parties could not start discussing section 134 of the Criminal Procedure Code (CPC).
“Whether the rights have been violated or not is a matter to be determined by the High Court. The charges as they stand are violating Yamba’s rights as the law not complied with has not been disclosed,” said Mwamba. “There being a thousand of laws relating to the management of public property cannot be a justification to violate the accused’s rights. The expeditious hearing of the matter cannot be a justification to violate the accused’s rights. It’s waffling to suggest that the application is frivolous and vexatious.”
Magistrate Bwalya has reserved ruling for May 23.