My brother is innocent – Sunday Chanda

My brother is innocent – Sunday Chanda

KANCHIBIYA member of parliament Sunday Chanda says he is convinces that his older brother McPherson Chanda who is former Zampost master general, is blameless of corrupt practices.

On Friday, the Economic and Financial Crimes Court endorsed the two year-jail term imposed on Chanda and his co-convicts Best Mwaiche and Isaac Kawimba for theft by servant, by the Ndola Magistrates Court, over the diverted Social Cash Transfer Funds amounting to K335,108, 834.

However, Sunday says he believes his brother who was in absent when the Court delivered judgement, is lily-white.

“As family we believe in the innocence of our brother. We believe justice will prevail,” said the lawmaker as he politely asked journalists to further inquire from McPherson’s lawyer about the next action.

On July 7,2022 Ndola magistrate Kaunda Sakwanda sentenced Chanda and his accomplices Best Mwaiche director finance and Isaac Kawimba director operations at Zampost to two years simple imprisonment in a matter where they were facing 13 counts of theft by servant.

Magistrate Sakwanda entered a statutory judgement in favor of the Attorney General to reclaim the K335 million.

The three challenged their conviction in the Economic and Financial Crimes Court (High Court Division) on seven grounds of appeal.

They argued that magistrate Sakwanda erred in law and fact when she found that the prosecution had established a case against them beyond reasonable doubt.

Chanda and his accomplices said magistrate Sakwanda erred in law and fact when she entered statutory judgement in favor of the State to recoup the K355 million, having found as a matter of fact that Zampost had only received K98 million as Social Cash Transfer Funds from the Ministry of Community Development and Social Services.

During hearing of their appeal, Chanda and his accomplices admitted having diverted the funds which were deposited into a fixed bank account in order to accrue interest.

The convicts claimed that the interest that was amassed was used for operations to service the public in rural areas.

Their lawyer Jonas Zimba argued that no witness proved fraudulent conduct by the trio, and the failure to prove the key element of an offence should not have resulted into a conviction.

He said the charges were in relation to theft by public servant and not theft by conversion.

ACC prosecutor Monica Mwansa said the particulars on record gave sufficient and reasonable information relating to the nature of the charge and the appellants took plea with legal representation and were ultimately convicted.

She said it was too late for the trio to challenge the indictment and urged the Court to increase the sentence.

Daniel Ngwira submitted that Chanda and his accomplices did not act in good faith, as Zampost was mandated to disburse the social cash transfer funds within 72 hours and not to hold on to it.

In delivering judgement judge Ann Ononuju on behalf of Pixie Yangailo and Vincent Siloka said theft is converting anything that is capable of being stolen and the use of the word stole in preference to conversion in the indictment still amounts to theft.

She said Chanda, Mwaiche and Kawimba had intentions of diverting the funds without authority from the Ministry of Community Development and Social Services.

“By diverting the funds to a fixed deposit account the accused persons converted it to their own use based on the manner Zampost managed or used the funds,” judge Ononuju said.

“The lower court determined the type of theft.
The particulars of the charge were correctly presented and the accused did not protest when taking plea or when they were placed on their defense.”

She said Chanda and his accomplices should have sought approval from the secretary to the treasury before opening a fixed deposit account were the Social Cash Transfer Funds would be held.

Judge Ononuju said the three did not act in good faith as laid down procedure was not followed to withhold funds for seven days whenever it was due for payment in order to amass interest, without consent from the Ministry of Community Development and Social Services.

She said the claims by the convicts that their lawyer had guided that the moving of the funds was legal is unattainable, as ignorance of the law is no defense.

“The convicts did not act in good faith and cannot claim immunity under Section 90 of the Zampost Act. A prudent business decision does not include acting on illegal decisions by moving of government funds without approval from the secretary to the treasury,” she said.

“There is no evidence to prove that the public benefited.”

The Court said magistrate Sakwanda was wrong when she entered a statutory judgement in favor of the State

Judge Ononuju said the statutory judgement created an absurdity because, the Ministry did not suffer any loss and even if the jury tries to consider the loss to award damages to government, no evidence was produced to prove the loss suffered.

“We cannot speculate on the figure whose genesis is unknown. The lower court erred in entering the statutory judgement. The failure by the State to show prejudice suffered meant there was no evidence to assist us to determine the loss and increase the sentence,” judge Ononuju said.

“We do not consider the 24 months sentence wrong at law or principle as the offense attracts a maximum sentence of 15 years.”

She said there are no circumstances warranting the EFCC to interfere with the sentence imposed by the lower Court and proceeded to validate it.

Judge Ononuju further referred the matter to the Register of the High Court to asses the amount of interest earned on the Social Cash Transfer Funds and when determined, Zampost should pay back the accrued interest to the treasury, since the three never benefited from it.

She also guided that warrants of arrest would be issued to law enforcement officers so that Chanda, Mwaiche and Kawimba can be taken to custody to start serving their sentence.

By Mwaka Ndawa

Kalemba