INCREASE MCPHERSON CHANDA’S JAIL TIME FOR STEALING SOCIAL CASH TRANSFER, DEMANDS ACC
THE State has asked the Economic and Financial Crimes Court to increase the jail time imposed on former Zampost master general McPherson Chanda and two others for theft by servant when they diverted Social Cash Transfer Funds amounting to K335,108, 834 without lawful authority.
During hearing of their appeal, Chanda and his accomplices admitted having diverted the funds which were deposited into a fixed bank account in order to accrue interest.
The convicts claimed that the interest that was amassed was used for operations to service the public in rural areas.
On July 7,2022 Ndola magistrate Kaunda Sakwanda sentenced Chanda and his accomplices Best Mwaiche director finance and Isaac Kawimba director operations at Zampost to two years simple imprisonment in a matter where they were facing 13 counts of theft by servant.
Magistrate Sakwanda entered a statutory judgement in favor of the Attorney General to reclaim the K335 million.
The convicts withheld Social Cash Transfer Funds in a fixed deposit account whenever the money was due for payment to the intended beneficiaries, for seven days in order to amass interest, without consent from the Ministry of Community Development and Social Services.
The three challenged their conviction in the Economic and Financial Crimes Court on four grounds.
They argued that magistrate Sakwanda erred in law and fact when she found that the prosecution had established a case against them beyond reasonable doubt.
Chanda and his accomplices said magistrate Sakwanda erred in law and fact when she entered statutory judgement in favor of the State to recoup the K355 million having found as a matter of fact that Zampost had only received K98 million as Social Cash Transfer Funds from the ministry of community development and social services.
However the Director of Public Prosecutions equally appealed the sentence on reasons that it was compassionate and not in conformity with the rules of sentencing.
The DPP said magistrate Sakwanda was sympathetic in meting out punishment on the convicts.
Submitting before judges Anne Ononuju, Pixie Yangailo and Vincent Siloka the convicts’ lawyer Lawrence Matibini said the jailing of the three was erroneous as the evidence adduced did not speak to the particulars of the offence.
He said Chanda, Mwaiche and Kawimba were wrongly convicted of the subject offences as the acts complained of were done in good faith during their course of duty.
“The record will show that there was no amount of money that had left the coffers of Zambia Postal Services into the pockets of the appellants,” Matibini argued.
“In the absence of any finding that there was money which was stolen and that money went into the pockets of the appellants, that decision was wrong at law.”
Jonas Zimba who is also representing the accused argued that the convicts were unfairly tried.
He said the subjection of a person to an unfair procedure makes the proceedings a nullity.
Zimba argued that no witness proved fraudulent conduct by the trio and the failure to prove the key element of an offence should not have resulted into a conviction.
He said the charges were in relation to theft by public servant and not theft by conversion.
“Will this court allow that the person is charged for a different offence and the conviction is based on a different offence? conversion is a very specific term and falls far away from the evidence and proceedings on record,” Zimba said.
“It is the appellants plea that the appeal succeeds and that they be acquitted.”
ACC prosecutor Monica Mwansa said the particulars on record gave sufficient and reasonable information relating to the nature of the charge and the appellants took plea with legal representation and were ultimately convicted.
She said it was too late for the trio to challenge the indictment.
Mwansa said findings of facts cannot be reversed by the appellate court unless the convicts can show that the finding of facts is irrational based on misapprehension.
She said the siphoning of the Social Cash Transfer Funds was meant to invest the money and make profit out of it.
“The conduct which the trial court found as an overt act was intended to deprive the beneficiaries of the funds and made interest out of that and was certainly against the interest of the public,” Mwansa said.
“They cannot blame anyone for not having rightly advised them as they were not supposed to hold meetings over the funds whose destination was clearly stated in the contracts.”
She said because funds were diverted, the intended beneficiaries who were relying on the same were prejudiced.
“It is the prejudice on the beneficiaries that is causing us (ACC)to move this court to exercise it’s powers and increase the sentence,” Mwansa proposed.
“The sentence they (appellants) were convicted for is upto 15 years and the 24 months simple imprisonment should be considered as a sentence totally inadequate and should induce a sense of shock on this court. It is in good cause for the Court to tamper with the sentence.”
Daniel Ngwira said the Economic and Financial Crimes Court is not the proper forum to address matters relating to the violation of constitutional rights.
He submitted that Chanda and his accomplices did not act in good faith as Zampost was mandated to disburse the social cash transfer funds within 72 hours.
“The inference to be drawn is that the money was put in a fixed deposit account longer than the period in which it was to be disbursed therefore the appellants acted in bad faith of the highest order,” Ngwira said.
“The bank statement for Zampost showed that on October 9, 2017, after interest was accrued at seven percent the bank statement is not indicating were the interest went. There is no documentary evidence of how the interest was utilized.”
He said the lower Court was on firm ground when it found that the trio did not act in good faith.
In reply Matibini said the funds could not be disbursed because the payment schedule was not sent on time by the ministry.
“Because they did not receive schedules on time financial management dictated that they make a decision in the presence of counsel to keep the money and earn interest,” Matibini insisted.
“Section 38 of the public finance Act of 2004 dictates that publi corporations should run in an efficient manner so that they make profits and pay dividends to the government.”
He claimed that the interest was used to sustain the operations of Zampost to the benefit of the large majority of the people in the rural areas were postal services are a necessity.
Zimba added that at the time the money
was sent to Zampost there were no beneficiary or schedule that was sent to the institution.
“It would be absurd to state that there was a beneficiary that was prejudiced because there was non,” said Zimba.
The court has reserved judgement for November 1, 2023.
Kalemba