By Mwaka Ndawa
LUSAKA based lawyer Joseph Chirwa says the acquittal of former minister of health Dr Chitalu Chilufya and eight others in relation to the infamous contract which was awarded to Honeybee Pharmacy Limited by the Ministry of Health to supply ‘defective’ drugs, condoms and gloves, is invalid.
Chirwa said Lusaka resident magistrate Chinuda Chiwaula did not have authority to preside over the complaint which he had logged against the nine and exonerate them because he had discontinued the matter the same day.
This is in a matter where lawyer Peter Zulu has instituted proceedings in the Constitutional Court against Dr Chitalu Chilufya, former Ministry of Health permanent secretary for administration Kakulubelwa Mulalelo, procurement officer Wilson Lungu, Bonaventure Chilinde, Zakir Hussein Motala, Chomba Kaoma, Imran Lunat, Abdurrauf Motala, Honeybee Pharmacy Limited, Chirwa and the Attorney General, challenging the dismissal of criminal charges against them relating to the infamous contract obtained by Honeybee.
Zulu is seeking a determination on whether it was lawful and in compliance with Article 180(4)(c) of the Constitution for magistrate Chiwaula to acquit Dr Chilufya and his ‘accomplices’ on a complaint made by Chirwa in the absence of authority from the Director of Public Prosecutions to proceed with private prosecution.
He wants the court to ascertain whether it was lawful and in compliance with Article 180(8) of the Constitution for the resident magistrate to acquit the nine when Chirwa withdrew his complaint without authority from the DPP.
In his complaint, Chirwa had accused Dr Chilufya and others of having committed criminal offences in the roles they played to secure a contract for Honeybee Pharmacy Limited to supply medical kits valued at US $3, 792, 761.28 to government through the Ministry of Health.
In an affidavit in opposition to originating summons, Chirwa explained that after the Anti-Corruption Commission hinted that it had instituted investigations in the Honeybee scandal, he abandoned his action before the Lusaka Magistrates’ Court against the nine and he was alerted of their purported acquittal by the media.
He said there is no legal procedure that permitted magistrate Chiwaula to acquit the respondents of non-existent charges.
In his skeleton argument, Chirwa submitted that magistrate Chiwaula did not follow procedure outlined under Section 90 of the Criminal Procedure Code and he had no powers to take any further steps in the matter unless the said provision was complied with.
“It is settled law in this jurisdiction (country) that a court without any jurisdiction cannot make any lawful orders and as such the purported acquittal is a nullity and of no legal effect,” Chirwa said.
He acknowledged of not having been granted permission by the DPP or the court as per requirement to privately prosecute the nine and that he had no intention of proceeding with the matter, therefore, the court should have considered his withdrawal which was filed before the accused were informed of the charges.
Chirwa said Dr Chilufya and others had had not been put on their defence to warrant the court to acquit them pursuant to Section 88(a) as read with Section 89(2) of the Criminal Procedure Code.
“The procedure for withdrawing a complaint by a private person is outlined under Sections 88 and 89 of the Criminal Procedure Code and it follows that one needs to obtain permission from either the magistrate or the DPP to proceed with the same.
In this particular case neither of the two happened, hence our fervent submission that there was no legal basis for the court to proceed and acquit the first to ninth respondents,” said Chirwa.