LAWYERS representing Health Minister Dr Chitalu Chilufya in a case where he is charged with being in possession of property suspected to be proceeds of crime yesterday asked the Lusaka Magistrates’ Court to discharge the accused if the Anti-Corruption Commission (ACC) is not ready to prosecute him.
But Lusaka Chief Resident Magistrate Lameck Mwale has ordered that trial in the matter starts today.
This was after a prosecutor from the ACC, Daniel Ngwirwa, asked for an adjournment when the case came up for commencement of trial, Tuesday, saying the prosecution team was not ready to proceed as operations at their office had been grounded due to the fact that two employees had tested positive to COVID-19.
He said one of the positive employees was a prosecutor, who was also on record in the matter.
“The prosecution is not ready to proceed with trial. We did file a notice of motion to adjourn, which was served on the advocates of the accused. The affidavit accompanying the notice of motion to adjourn sets out the grounds upon which the adjournment is sought. We shall not repeat all the reasons, but it suffices to state that operations at ACC have been grounded due to the fact that two employees tested positive for COVID-19, one of them being an advocate on record in this case,” Ngwirwa said.
“Therefore, it became necessary that the entire building be fumigated and in order to pave way for the said exercise, all members of staff were advised not to report for work up until August 5, 2020.”
Ngwira said in any case, prosecutors and investigators at ACC will still not report for work on August 5, 2020, until further notice.
But the defence objected to the said application for an adjournment.
Tutwa Ngulube, who was the first defence lawyer to object, asked the Court to stand down the matter in the afternoon or discharge the accused and let the prosecutors take him back to court when they were ready to prosecute their case.
Another defence lawyer Jonas Zimba adopted Ngulube’s objection and submissions.
He proceeded to indicate that the ACC effected an arrest on his client at their Kabulonga office, adding that it would, therefore, follow that ACC had more than one office.
Zimba also urged the Court not to entertain the State’s argument that one of the prosecutors tested positive for COVID-19, saying the remaining three prosecutors could have handled the trial.
“If the office in town is closed due to a fumigation exercise, which in my considered view would have been done over the long-weekend, ACC would have done their preparations at the Kabulonga office where they effected an arrest on my client. They have also indicated before this court that one of the advocates on record before this court is affected by the pandemic. I urge this court not to entertain such an argument for the reason that there are four prosecutors on record. Three prosecutors would have carried on these proceedings,” he said.
Zimba said there was also no evidence on record that one of the 20 witnesses the prosecution intends to call had COVID-19.
“We have to make prudent use of judicial time and this matter was given the whole week. If the adjournment sought is granted, not only will the State inconvenience the State, but the Court as well whose time is so precious. Having said that, may the Court proceed to order the State to proceed with this matter as agreed and if they are not ready now, this matter be stood down for them to get ready and proceed with this matter,” he said.
“I say so because when a person is arrested by the State, it is presumed that they have more than enough evidence for them to carry out with their prosecution. That evidence cannot disappear because of COVID-19.”
In reply, Ngwira insisted that the State had met the conditions to make the adjournment.
But ruling on the application for an adjournment later on, Magistrate Mwale ordered for trial to proceed today.
He said after going through the internal memorandum (MEMO) issued by the ACC acting director, all those working in their investigations department were supposed to remain on duty.
Magistrate Mwale said according to the memo, staff based at Kabulonga and others, under the department of legal and investigations were supposed to also remain working.
He added that, therefore, prosecutors; Clifford Moonga, Muchula Silumesi and Borniface Chiwala fall under those staff who were supposed to work normally.
He adjourned the matter to today.
In this matter, Dr Chilufya has been charged with four charges of possession of property suspected to be proceeds of crime contrary to section 71 (1) of the Forfeiture of Proceeds of Crime Act No. 19 of the 2010 of the laws of Zambia.