Lawyer fumes over DPP’s “no bail certificate” for gold scam suspects
LAWYER representing five Egyptian nationals involved in the gold gate-scandal, Lubinda Linyama yesterday fumed over instructions issued by the DPP that all accused persons linked to the “gold scam” should not be granted bail.
Linyama who proposed that the instructions be vacated, for being filed before a court lacking authority to try a charge of espionage which his clients stand charged, said it was ridiculous for the State to suggest that a Court cannot question the powers of the DPP.
The Egyptians identified as Walid Fahmi Botros 35 a businessman and farmer, Mounir Gerges Awad 46, an industrial worker, Colonel Mohamed Gouda 45 a retired military personnel, Yasser Mokhtar Abdelghafor 46, a security personnel and Micheal Adel Michel Botros 40, a businessman were arrested at Kenneth Kaunda International Airport on August 13, 2023 prior to completing a deal involving 602 ‘fake’ gold bars weighing 127.2 Kg, worth US$5.7 million.
The quintet who is charged with espionage is co-charged with six Zambians businessman Shadrek Kasanda, 33 of Ibex Hill, Mahogany Air pilot Patrick Kawanu 41 of Silverest Chongwe, Oswald Diangamo 38 an accountant and managing director at ZamQlik solutions limited, of Chilanga, Francis Makai Mateyo 52, a State security officer of Lusaka west, KKIA police commanding officer Robson Moonga and Mahogany Air proprietor Dr Jim Belemu 59 of house no.16020A great north road.
It is alleged that the 11 on August 14, whilst acting together entered a protected place the Kenneth Kaunda International Airport for purposes that were prejudicial to the safety and interests of the Republic of Zambia.
The Egyptians who were clad in black hoodies paired with thick black glasses during their Court appearance, had the charge explained to them together with their Zambian conspirators by Lusaka chief resident magistrate Davies Chibwili.
The accused indicated that they understood the charge but Magistrate Chibwili informed them that they would not take plea as espionage is only tried by the High Court.
“I have not asked any of you whether you admit or deny the charge. This is because the charge you are facing is not triable by this court. You are merely appearing for explanation of the charge,”he said.
At this point State advocate Gracilier Mulenga indicated that the Director of Public Prosecutions Gilbert Phiri had issued a certificate denying the accused bail pursuant to Section 123(4) of the Criminal Procedure Code.
Phiri indicated that the State’s interest is likely to be prejudiced if the accused is admitted to bail.
However Linyama was shook that the State filed a certificate of no bail before a Court that is not clothed with the authority to entertain bail applications on matters bordering on the State Security Act.
He said the discretion to admit an accused person who is charged with espionage to bail, is a preserve of the High Court.
“What is shocking is for this court to proceed and receive court process or receive any instructions apart from explaining the charge. The role of the court is to simply explain the charge and defer the matter to a next date for mention as we wait for a certificate of committal to the High court,” Linyama said.
“Even the consent to prosecute is not on the record how do we rush to bail when there is no consent to begin with? The court should limit its power to explaining the charge and defer the matter to a next date. With utmost respect your honor issues to do with bail are not for you, not today.”
Martha Mushipe who is representing Dr Belemu said the instructions issued by the nation’s chief prosecutor was procedurally wrong as it ought to have filed before a superior Court with competent authority.
Former Solicitor general Abraham Mwansa submitted that assuming Phiri’s decision was proper, he ought to have consented to the prosecution of the matter and thereafter issue a certificate for no bail if he so wished.
“We would urge the State to withdraw the certificate tendered in court for the reason that the Court has no jurisdiction to try the matter and is not in a position to admit the certificate tendered,” Mwansa suggested.
Other defense lawyers equally adopted submissions by Mwansa and Linyama and demanded that the certificate be withdrawn as it was prematurely filed before a wrong Court.
In standing by Phiri’s decision Mulenga said
though the matter is triable by the High Court the Subordinate Court would have been forced to hear applications for bail if Phiri did not block such attempts by invoking section 123 (4) of the Criminal Procedure Code (CPC).
“The section invoked by the DPP can be invoked at any stage of the proceedings and doesn’t have to wait for the accused to appear before the court that has powers to try the charge,”Mulenga explained.
“The subsection does not restrict the timing when the powers can be invoked. The office of the DPP is autonomous, the DPP is not subject to control be any person. Expunging the certificate will amount to interfering with the powers of the DPP as guaranteed by the constitution.”
She added that Phiri is within the law to restrict the accused from pestering Courts to admit them to bail.
The State further submitted that the offence of espionage is not among the offences the Subordinate court cannot exercise its powers to grant the accused bail.
It said it acted proactively as there’s nothing irregular about the action taken by the DPP and no legal ground will justify its withdrawal.
The response by the State relating to the DPP’s office being autonomous angered Linyama who charged that his clients were not interested in bail but a speedy trial.
“We are not here to discuss bail Let’s no digress. What was the purpose of bring this application to paint our clients prejudicial in the eyes of the court ? Can a court exercising its jurisdiction tamper with the office of a constitutional office bearer that is ridiculous!
The court has power to question the decision of the executive,” said Linyama.
“We are ready to start trial even tomorrow, we are not interested in bail. What we came here for is for the Court to explain the charge to the accused that’s it. The issue of bail is not procedural. The Court’s hands are tied the State should assure our clients that they will have a speedy trial not to talk about Section 123.”
Mwansa insisted that the Court cancels the instructions for no bail issued by the DPP as it was wrong to issue the same at this stage.
Magistrate Chibwili reserved ruling for today at 14:00 hours.
By Mwaka Ndawa
Kalemba