By Amb. Emmanuel Mwamba
JUDGES REFUSE TO HEAR ESTHER LUNGU’S WITNESSES
Lusaka- Tuesday, 22nd May 2024
The Economic and Financial Crimes Court on Monday, 21st May 2024, refused to hear witnesses submitted and subpoenad by former First Lady, Mama Esther Lungu’s lawyers.
This is in a matter where the Director of Public Prosecutions (DPP) , Gilbert Phiri, has applied for forfeiture of properties; 9334/1, 9334/ 1, 9334/2, 9334/3 AND 9334/4 containing 15 double storey flats located in State Lodge.
Former First Lady, Mama Esther Nyawa Tembo Lungu, has opposed the application stating that the properties were not proceeds of crime as alleged by the DPP.
The matter is before High Court Justices; Hon.Pixie K. Yangailo, Hon. Ian Mwanajiti Mabbolobbolo and Hon. Vincent Sililo Siloka.
Lawyers for Mrs. Esther Lungu, Jonas Zimba of Makebi Zulu Advocates and Mrs.Mrs Dessislava Findlay.of D. Findlay and Associates, applied that officials from the Ministry of Works and Supply and Ministry of Infrastructure were required to lay. test and verify the evidence related to the properties, the subject before the Court.
The lawyers applied that it was important that evidence was corroborated and tested.
However, the court refused the application for Mrs. Lungu to bring her witnesses stating that as Judges they will (strangely) rely on affidavit evidence alone.
In the earlier hearing, the DPP was allowed to bring to court witnesses from the Bank and others to support his claim of forfeiture of the property.
The proceedings are based on what is called Non-Conviction Based (NCB) forfeiture of assets.
Distinct from a forfeiture order, a non-conviction-based forfeiture of an asset occurs when a court confiscates assets of suspected criminal nature, even where no conviction has been obtained in relation to criminal conduct.
These action are premised on Foreceiture of Proceeds of Crime Act of 2010, where stakehokders and human rights advocates have condemned the provisions in the Act as they violate the constitutional rights to; innocence, due process and the right to property.
In 2022, Chief Justice Mumba Malila issued a gazette notice Statutory Number no. 5 of 2022 and stated that he had created the Economic and Financial Crimes Court as a division of the Court.
The Chief Justice stated that he had responded to President Hakainde Hichilema who pronounced that his government would create such a court.
In addition to the jurisdiction of the Court under Article 134 of the Constitution, the Economic and Financial Crimes Court will hear and determine matters relating to economic and financial crimes and corruption.
The matter involving Mrs. Lungu has been adjourned to a later date for judgment.
Given the writer we are supposed to believe that this article is truthful objective and balanced? Plse ba Observer stop dishing out stories from questionable characters!
When you swear before court through an affidavit, you’re essentially telling the court the whole truth as you know it, and that you’re willing to undergo cross-examination on what you disclose in the affidavit in order to test its validity if the facts are disputed between the petitioner and you, the respondent. Esther Lungu has a whole team of defence lawyers. She should tell those lawyers how she came by the money she used to buy the land, how she paid for the it, develop the properties, how she was paying the contractors and other construction professionals, the receipts she was issued by them, how she was paying the supplier of materials etc. If Makebi Zulu is in it to ensure that justice is served, he knows exactly what to do. But he won’t do it because he knows what will follow next.
I know that Lumgu and family acquired properties usinf iillicit means. Most likely from kickbacks for hyperinflated government contracts. However this forfeiture law is unfair, unconstitutional. It shifts the burden of proof from the the prosecutor to the accused. It assumes the accused is guilty without providing tangible evidence but rather relies on circumstantial evidence..it’s possible that these forfeiture may be overturned by the constitutional court. And all this may turn out to be wasted exercise. Better to follow the money trail to secure convictions. The money that prove that the funds were acquired illicitly.
I am not a lawyer but the issue of refusing to hear an accused person’s witnesses is odd. Someone guide me.