Set me free, 5 months to prosecute me is over, insists Lusambo

Set me free, 5 months to prosecute me is over, insists Lusambo

FORMER Lusaka Province Minister Bowman Lusambo has continued on an insist that the Economic and Financial Crimes Court should discharge him on a technicality of lapse of time.



The Bulldozer asked magistrate Faidess Hamaundu to discharge him for want of prosecution on reasons that the five month period in which to try him has elapsed.

In this case, Lusambo is facing 10 corruption-related charges before the Economic and Financial Crimes Court; 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.

He is jointly charged with his wife Nancy Manase for possessing four houses in Silverest Gardens, Chongwe which were suspected to be procceds of crime.

The couple could not open defense before magistrate Faidess Hamaundu on reasons that, the period in which to try them had elapsed.

Representing the couple, former Attorney General Likando Kalaluka said Rule 3(1) of the Economic and Financial Crimes rules provides that the court shall hear matters of financial crimes within five months from the date when plea is taken.

“Upon interrogating my clients, they informed me that they did not take plea in April 2024 and the charge sheet shows they took plea in April 2023 and not 2024 as augmented by the prosecution,”he said.

“If plea was taken in 2022 or 2023 then obviously the five months period has lapsed and this court may nolonger be clothed with jurisdiction to hear this matter.

Kalaluka said Rule 17 of the Criminal Procedure Code, Economic and Financial Crimes Rules of 2024 states that proceedings shall be conducted in accordance with the Rules.

He indicated that Rule 3(1) needs to be complied with as it’s couched in mandatory terms “shall”.

“This would have been the right matter for the prosecution to request that the accused persons take fresh plea immediately the Rules came into force on March 1, 2024. But this was not done,”Kalaluka said.

“The prosecution have the advantage of utilizing a nolle prosequi which should have resulted in into the accused being discharged, and re-arrested so that they could take plea afresh. This was not done.”

He said when his firm took up the matter on August 28, and asked for an extension of time the court had no jurisdiction and cannot take further steps in the matter.

“The matter is out of time rendering the Court wanting in terms of jurisdiction,” he said

In response, ACC prosecutor Daniel Ngwira sought answers on when the five months time frame was effected and whether or not the Court had lost its jurisdiction to hear and determine the case.

“The court had made an order extending the time within which the proceedings must be determined,” he said.

“Whether or not time was properly computed is now water under the bridge. This court cannot recompute time because, Rule 12 of SI no.10 of 2024 Economic and Financial Crimes Rules interlocutory orders cannot be assailed in this court,” he said.

He indicated the computation of time can be argued and determined on appeal.

“To argue that the prosecution misled the Court and the defense, is an indication that the defense slept on their rights. The maxim of equity states that; equity aids the vigilant and not the tired. At equity there’s no remedy for the tired such as the accused persons,”Ngwira argued.

“On August 25 the defense made an application to extend time the five months had already lapsed, we submit that clearly the defense have been caught up in their own web.

He urged the Court to invoke Rule 3(2) of the Economic and Financial Crimes Rules as read together with section 37 of CAP 2 to etxend the life of the proceedings.

“A majority of adjournments of the proceedings were occasioned at the instance of the defence, and the adjournments had an effect on the proceedings and today these are the people saying that time has elapsed,” said Ngwira.

“The maxim of equity states that; he who comes to equity must come with clean hands. Both parties must check their hands and see if they are clean. We pray that the application be dismissed.”

Kalaluka expressed shock with the argument by the State that the accused slept on their rights yet, the prosecution team has not attempted refute assertions that it misled the court.

“This puts the court on the spotlight on how it will respond in such circumstances. The court cannot continue squandering time, by hearing cases it has no jurisdiction over when it’s overwhelmed with cases,” said Kalaluka. 

“The defense is coming with clean hands, adjournments occasioned by the defense were for good reasons which touched on the health of the accused. They could not have foreseen that the rules of the court would come into effect in March 2024. They did not deliberately apply to adjourn the matter.”

Magistrate Hamaundu adjourned the case to September 6, for ruling

By Mwaka Ndawa

Kalemba September 6,2024.