Court To Determine Whether DPP Can Prosecute RB

Rupiah Banda’s case of corruptly receiving motor vehicles from two Chinese firms has been referred to the Lusaka High Court for determination of whether the Director of Public Prosecutions can continue prosecuting the matter.
Banda is in this case alleged to have between January 2011 and August 30, the same year corruptly received 19 motor vehicles from Sogecao Zambia Limited and Sogecao Construction and Engineering as an inducement or reward for himself in return for his favourable treatment in the two companies’ dealings with government.
In his ruling yesterday, Lusaka principal resident magistrate Obbister Musukwa said the Subordinate Court had no jurisdiction to determine the constitutional issues raised by Banda’s lawyers that the matter be referred to the High Court.
Magistrate Musukwa said the ruling was premised on preliminary issues raised by the defence for constitutional reference of the matter to the High Court.
He said the notice to raise preliminary issues for constitutional reference was made pursuant to Article 28(2) of the Constitution of Zambia, supported by the affidavit submitted by the defence.
Magistrate Musukwa, however, said Director of Public Prosecutions (DPP) Mutembo Nchito opposed the application, arguing that there were no constitutional issues worth referring the matter to the High Court for.
Nchito had argued that the application was an attempt by Banda to delay proceedings in the matter and implored the court to dismiss it.
Moreover, magistrate Musukwa said, the affidavit in support of notice for constitutional reference came under attack as defying the rules known to law on the content and format of the affidavit and brought it within the meaning of “frivolous and vexatious” in Article 28(2) of the Constitution.
The court said it had carefully listened to the spirited arguments made by both parties and had considered the affidavit filed in support of the application.
Magistrate Musukwa said he had also perused the submissions made and without looking at the cogency of the evidence, there appeared an argument which could not be determined by the Subordinate Court.
He said there appeared a conflict between the rights of the accused to fair trial as guaranteed under the Bill of Rights in Article 18(1) and (2) of the Constitution on one side and the powers of the DPP to prosecute this matter in line with the provisions of Article 56 on the other.
Magistrate Musukwa said since the Subordinate Court had no power to determine constitutionality of the two conflicting issues, he would refer the matter to the High Court.
“I refer the matter to the High Court to determine the question: ‘Where do you draw the line between the accused person’s right to a fair hearing or trial as envisaged by Article 18(1) and (2) of the Bill of Rights…and the power of the DPP to prosecute this matter where it appears on the face of it to conflict with an accused person’s right to fair trial. I refer accordingly pursuant to Article 28(2) of the Constitution,” said

Posted by Kunda on June 1, 2014. Filed under LATEST NEWS. You can follow any responses to this entry through the RSS 2.0. Both comments and pings are currently closed.