Magistrate Ngobola rejects Lubinda’s challenge on the Economic and Financial Crimes Court
By Mwaka Ndawa
LUSAKA magistrate Stanford Ngobola has ruled that the Economic and Financial Crimes Court has not been legitimised at the subordinate court, therefore it was irregular for PF acting vice-president Given Lubinda to question its status before the law.
“The Economic and Financial Crimes Court at the subordinate court level was not set out under any statute or legislation and was merely set up for administrative purposes to ensure that cases of economic and financial crimes in the subordinate court are presided over in an expedited manner,” magistrate Ngobola explained.
This is in a matter where Lubinda is accused of illegally obtaining US $230,000 from a Chinese company and using part of the money to acquire land in Kingsland City.
At the last sitting, Lubinda’s lawyer Makebi Zulu asked magistrate Ngobola to refer the case to the Constitutional Court as the Economic and Financial Crimes Court had discriminated against the accused administratively.
He said the Constitution provided that divisions at the subordinate court shall be prescribed in relation to Article 123 of the supreme law.
“The provision says jurisdiction and composition should be prescribed and the same has not been done in the case. All persons are equal before the law and creating special courts is unconstitutional as it goes against the principal of equality. Any person facing criminal charges needs to stand at the same footing at the bar of justice,” Zulu said. “The Constitutional Court should interpret Article 128 to determine whether the institution of the Economic and Financial Crimes Court is in conformity with Article 123.”
In response, Anti-Corruption Commission (ACC) prosecutor Tyson Mudenda said the accused was appearing before the subordinate court which was an established court at law.
He said the administrative decision to establish the Economic and Financial Crimes Court as a sibling of the High Court did not raise an issue for the matter to be referred.
And Martin Mayembe argued that the issue relating to the Economic and Financial Crimes Court was an administrative arrangement by the Chief Justice under Article 133(3) of the Constitution.
He said the Chief Justice under his powers established the said court in the High Court which would hear appeals from its sibling before the subordinate division in accordance with its mandate.
In his ruling, magistrate Ngobola said the Economic and Financial Crimes Court at the subordinate court level was irregular, as it was not an established court.
“It is still a subordinate court, it is loosely referred to as the Economic and Financial Crimes Court to describe that the subordinate court is now addressing cases of economic and financial crimes,” magistrate Ngobola said. “It is presided over by magistrates of the subordinate court and its jurisdiction is governed by the subordinate courts Act Chapter 28 of the Zambian laws. It follows the same processes, procedures of the subordinate court. Its trials occur in the same way as they would in the subordinate court.”
He added that no prejudice would be occasioned to Lubinda.
“I am of the considered view that the issue raised by Zulu is not a constitutional issue for the Constitutional Court to answer. The application lacks merit for it fails and is accordingly dismissed. I order that the main matter be allowed to proceed and the accused be allowed to take plea,” said magistrate Ngobola.
Zulu further made an application to refer the matter to the High Court for determination on whether his client’s rights to a fair trial were being infringed upon as the offence he is alleged to have committed which resulted into him being in possession of tainted property has not been disclosed.
He said he intended to challenge the constitutionality of Article 71 of the Constitution which required an accused person to be in a position to account for what the State suspected to be proceeds of crime, which was unconstitutional.
“The burden of proof is moved to the accused person, which is unconstitutional because he who alleges must prove. The trial is skewed in favour of the State, disadvantaging a person that is accused,” Zulu said.
He submitted that Article 8 of the Constitution provided that national values and principles ought to be taken into consideration, which included respecting the rights and freedoms of an accused, the rule of law and the need to ensure that the spirit of the Constitution was upheld and must give effect to the provisions of the Constitution.
“Due process means that the burden of proof should not be moved on a mere suspicion to an accused person. Charging him for possessing property suspected to be proceeds of crime without stating what crime may he have committed is improper and not desirable in a democracy,” Zulu said. “What offence did the accused commit from which he derived a benefit that can be stated to be proceeds of crime and not stated anywhere in the four counts before you? If every other offence does not require a person charged to discharge a burden of proof, the requirements on this particular charge is discriminatory.”
Zulu submitted that any law which is discriminatory is null and void as it offends article 23 of the Constitution.
“Pursuant to Article 28, it is our view that Article 11-26 are being violated and requires the matter to be referred to the High Court for determination. The charge is unlawful as it offends Article 11,13,18,” said Zulu.
ACC prosecutor Tyson Mudenda requested for an adjournment in order to respond to the application.
Magistrate Ngobola adjourned the matter to May 27.