By Mwaka Ndawa
KABUSHI PF member of parliament Bowman Lusambo and his wife Nancy Manase have petitioned the Lusaka High Court to determine whether or not their prosecution under the Economic and Financial Crimes Court violates the due process of the law and whether it is discriminatory.
They argue that their prosecution under specific courts like the Economic and Financial Crimes Court is discriminatory, as it seems to have been created for a specific group which should be punished for financial crimes under fast-track courts.
Lusambo and his wife request that the matter be referred to the High Court pursuant to Article 28(2) of the Constitution for a determination on whether the due process of the law will be violated if they are prosecuted under the Economic and Financial Crimes Court, and whether they will be discriminated against.
This is in a matter where Lusambo is facing 10 corruption related charges among them one count of corrupt acquisition of public property, five counts of possessing property suspected to be proceeds of crime, three counts of tax evasion and one count of conspiracy to defraud.
Lusambo is jointly charged with his wife Nancy for possessing four houses in Silverest Gardens, Chongwe which were suspected to be proceeds of crime.
When the matter came up for commencement of trial before magistrate Faidess Hamaundu, the accused’s lawyer Makebi Zulu said they should be subjected to undergo trial in the same courts as other accused persons and not specific courts as it was against the law.
He said Statutory Instrument No. 5 of 2022 issued by the Chief Justice establishing the Economic and Financial Crimes Court goes against Article 11(a) of the Constitution which provides for equality before the law.
“Our prayer is for the reference of this matter to the High Court to determine whether or not the constitutional special courts does not tolerate due process and protection by the law and whether the same are not discriminatory,” Zulu said.
The couple’s other lawyer Jonas Zimba submitted that the question raised was a noble one in order for everyone to learn judicial precedence in relation to Economic and Financial Crimes Court.
“The history in our jurisdiction as regards to the creation of this court (EFCC) stems from an executive pronouncement made by the republican president as reported by the Zambian observer with a banner headline Bally goes for thieves on September 12, 2021. On January 13, 2022 the executive pronouncements of September 12 was held by the ministry of justice in the daily nation paper,” Zimba said. “The understanding of this is that there are those who have already been convicted and should simply be punished by fast tract courts for economic crimes. One would ask if at all there would be fairness as regards to such trials before such courts. I am inclined to delve into detailed arguments on my exposition to that point to the reason that that is within the province of the High Court.”
Zimba said the subordinate had no provisions that dealt with fast-track courts for economic and financial crimes.
“This matter should be referred to the High Court for interrogation of Article 11(a) chapter 1 of the constitution. The question is neither frivolous nor vexatious as it is a noble question ought to be interrogated by the High Court,” said Zimba.
In response, Anti-Corruption Commission (ACC) prosecutor Daniel Ngwira argued that the essence of the application was that it sought the determination of the High Court on whether the designation of the Economic and Financial Crimes court was in conformity with Article 11(a) of the Constitution.
“Under Article 28(a) the only time the subordinate court may refer the matter to the High Court is where it is being alleged that any provisions of Article 11-26 have been violated,” said Ngwira.
“The defence has not argued that any of the said provisions have been violated. Article 11 which guarantees the protection of the law has not been violated because matters tried under the penal code or other written law ought to be tried in conformity with the criminal procedure code. This application is frivolous and vexatious and as such it should not be granted.”
And Martin Mayembe argued that the issue relating to the establishment of the Economic and Financial Crimes Court was of no relevance as Chief justice Mumba Malila enacted the court by powers vested in him under Article 133(3) of the Constitution and Section 3 of the High Court Act.
“This court at the High Court is designed to hear appeal cases from the subordinate court sibling. We submit that the application is misconceived,” said Mayembe.
In response, Zulu said there was merit in his application, as the State in one breath was saying the defence had not complied with Article 28(2) and also argue that Article 11 (a) had not been violated.
“Such an argument requires this court to determine Article 11-26. The accused persons are entitled to the due process of the law. The creation of a special system which the state does not deny is what we intend to challenge,” he said. “Where the state argues that it’s okay to set up such systems both in the High Court and subordinate, we argue that it isn’t and is discriminatory. A flesh of those arguments are not for this stage of the application but should be reserved for the High Court. The mere fact that they have an argument against our position means that there is merit for our question to be determined.”
Magistrate Hamaundu adjourned the matter to April 12 for ruling.
And speaking after the court session, Lusambo who mainly spoke in Bemba, said that rearing cattle was different from leading people.
“Ukuteka ing’ombe nokuteka abantu fyalipusana sana. Elo ukukwata impyia tekutekafye ing’ombe iyo. Elo ngamwabwesha icalo pakukwata indalama kano wateka ing’ombe ninshi muleonaula icalo. Ifwe kumwesu tulima impwa tatuteka ing’ombe iyo. (Rearing cattle is different from leading people. And one cannot only make money by rearing cattle, no. And if you reduce the country to a situation where you can only make money by rearing cattle you are destroying it. Where I come from, we grow egg plants, we do not rare cattle),’’ said Lusambo.
Pictures by Mwaka Ndawa