GBM to remain in jail despite appeal
Despite the appeal against his conviction, former Defense Minister Geoffrey Bwalya Mwamba will be extending his stay in jail courtesy of a court decision that keeps him behind bars until his appeal is heard.
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This comes after GBM, as he’s popularly known, was slapped with a five-year jail sentence by the Economic and Financial Crimes Court on eight counts of conflict of interest, four counts of possession of property suspected to be proceeds of crime, and a K50,000 fine for money laundering.
Mwamba’s troubles began when he was accused of allowing his companies and relatives to do business with the Ministry of Defense while he was at the helm.
The court ruled that as a public servant, Mwamba owed a fiduciary duty to the public, and his actions were in clear conflict of interest.
GBM has since filed an appeal, citing eight grounds, including claims that the trial court erred in law and fact when convicting him.
Magistrate Stanford Ngobola in denying Mwamba bail said the chances of the appeal succeeding are dim, and that the prospects of success must not be remote but must have a realistic chance of succeeding.
Mwamba had applied for bail pending appeal against his jailing to the Economic and Financial Crimes Court (High Court division).
On October 9, 2024 Mwamba alias GBM was jailed five years by the Economic and Financial Crimes Court on eight counts of conflict of interest, four counts of possession of property suspected to be proceeds of crime, and fined home K50, 000 for money laundering.
Mwamba was facing 24 criminal charges among them; eight counts of conflict of interest, one count of money laundering and 15 counts of possessing property suspected to be proceeds of crime.
GBM has filed eight grounds of appeal on which he wants to challenge his conviction.
He argues that magistrate Ngobola erred in law and fact when he convicted him on eight counts of failure to declare interest contrary to section 28 (2) and (3) of the Anti-Corruption Act No.3 of 2012.
Mwamba said the trial Court erred in law and fact when it failed to attach any evidential weight to his declarations of interest which clearly demonstrated that such interest had been declared and the matter was previously closed after investigation by an earlier Joint Investigation Team in 2013.
During bail hearing Mwamba’s lawyer Bonaventure Mutale said there are exceptional circumstances that the court ought to consider, which arise primary from the convict’s medical condition.
Mutale said Mwamba has a chronic heart condition which has been confirmed by two heart specialists from the National Heart Hospital.
He said without medical attention from the heart experts his heart condition would be at risk and may deteriorate further.
“The record is voluminous and as such there is a likelihood of a delay in the preparation of the record, which may result in the applicant serving a substantial part of his sentence,”said Mutale.
Kelvin Fube Bwalya, submitted that the appeal raises important and difficult points of law that make it a very exceptional case.
He said there is a real doubt about the correctness of the conviction in some of the counts based on law.
Bwalya said without arguing the grounds of appeal, the grounds that have been filed raise important points of law which manifestly demonstrates that the conviction requires a relook especially with the eight counts of deceleration of interest.
But the State argued that the health of a convict is not an exceptional circumstance for them to be admitted to bail pending appeal.
It said GBM is now a convict who does not enjoy the benefits of an innocent person and can only be granted bail pending appeal where exceptional circumstances exist.
The State argued that the grounds of appeal do not disclose any prospects of success for his appeal and that he has not disclosed any exceptional circumstances warranting the exercise of the Court’s discretion to grant him bail pending appeal.
In his ruling magistrate Ngobola said the right to bail pending appeal is not automatic; as Mwamba is supposed to demonstrate that his appeal has overwhelming chances of success and that there are exceptional circumstances which would entitle him to bail pending appeal.
“I have perused the appellant’s grounds of appeal, and while being careful not to delve into the merits and demerits of the grounds of appeal, am not convinced that the appeal raises important and difficult points of law,” he said.
“Evidentially, it does not raise any substantial or weight on a point of law. As regards the submission on the applicant’s medical condition, in my view it is a good ground. However, ill health of the applicant per se is not enough to warrant this court to release him on bail pending appeal.”
Magistrate Ngobola said Mwamba alias GBM must demonstrate prospects of success on appeal.
He said the likelihood of success of the appeal lies in the strength of the grounds of appeal.
“Having perused the intended grounds of appeal, it is clear to me that the prospects of success of the appeal are slim. I am not satisfied that the applicant has made out a persuasive case for bail pending appeal,” said magistrate Ngobola.
“He has not met the legal threshold required for his release on bail pending appeal. Accordingly, the applicant’s application fails and is hereby dismissed.”
By Mwaka Ndawa
Kalemba October 24, 2024.