Lusambo denies illegal possession of property
FORMER Kabushi member of parliament Bowman Lusambo has denied acquiring his fancy house in Lusaka’s Chamba Valley through grand corruption.
This is in a matter where he is facing two counts of possessing property suspected to be proceeds of crime before the Economic and Financial Crimes Court.
It is alleged that Between May 1, 2015 and December 31, 2021 Lusambo possessed property no. F/609/E/44/B/9 which is a single storey four-bedroomed house and a guest wing and an incomplete block of six flats in Silverest area which are suspected to be tainted.
Lusambo pleaded not guilty to the charges before Lusaka chief resident magistrate Davies Chibwili.
Earlier, the Court refused to refer the matter to the High Court for determination on whether his trial before two different courts on similar charges will amount to subjecting him to an unfair trial.
He argued that he could not be tried by a different court on similar charges when he is already appearing before Lusaka magistrate, Faides Hamaundu with his wife Nancy Manase facing 10 corruption-related charges among them possessing and concealing four houses suspected to be proceeds of crime.
Lusambo through his lawyer Makebi Zulu argued that Article 28 of the Constitution as read together with Article 18 require every accused person be accorded a fair trial.
Zulu said a fair trial under Article 18 requires that an accused person ought to be given adequate facilities to defend themselves.
Zulu said the matter before magistrate Hamaundu and the current charges are initially the same though they relate to different properties.
He said Section 135, (1) and (3) of the Criminal Procedure Code (CPC) provides for joinder of charges or counts and the only time a
separate trial could be held was under section 135 (3 ) of the CPC.
” We came before you with a question as to whether this mitigation of spreading accounts across different courts can afford fair trial in
terms of Article 18 of the constitution as read together with Section 135 of the CPC. These charges before you ought to form part of
the charges before Magistrate Hamaundu because they fall within the provisions of section 135 of CPC. Similar charges ought to be on the same indictment and tried by the same Court,” Zulu said.
Zulu said the failure to merge the similar charges would result in unfair trial for the accused because different court would come up with different judgments on a similar matter.
“It may result in the same witnesses testifying in different Courts over the same matter and that is undesirable. You will note that an
application was made before honorable Hamaundu by the State to include
these two counts in the proceedings in line with section 135. The ruling of the court was that the matter had advanced and declined to add these two matters,” said Zulu
But ACC Prosecutor Daniel Ngwira said the manner in which the questions were framed
for purposes of reference to the High Court, do not meet the test under Article 18 of the Constitution.
He said relation to the question on whether it was constitutionally right to have piece meal prosecution, Article 18 ( 12) of the Constitution
states that anything done under the authority of any written law is not inconsistent with the Constitution.
Ngwira argued that following the refusal by magistrate Hamaundu to join the two
charges, the only recourse the prosecution had was to invoke Section 90 of the CPC which provides for institution of criminal procedure in the manner that the prosecution has done.
He said Lusambo’s rights to a fair trial has not been violated and there is no evidence to prove that adequate facilities have been denied for him to prepare his defense.
Ruling on the matter magistrate Chibwili said there is nothing wrong with spreading the charges in different courts.
He said when an accused is charged on more than one count on similar the charges the same can be broken down and shared in different Courts.
Magistrate Chibwili said there is no question that requires reference to the high court.
“There is a grievance by the defence over the refusal by magistrate Hamaundu to add the counts which they failed to appeal against and now want the attention of the High Court over the matter. I hereby deny the application as there is no question that arises that requires determination,”said magistrate Chibwili.
Trial commences on September 11.
By Mwaka Ndawa
Kalemb