High Court to re-examine whether Andrew Banda and Locci were wrongly charged

THE High Court will determine whether former President Rupiah Banda’s son, Andrew and his co-accused Fratelli Locci were wrongly charged, a Lusaka magistrate’s court has ruled.

This is in a matter in which Banda and Locci, a director at an Italian construction company, Fratelli Locci, are jointly charged with two counts of gratification for giving assistance on contracts contrary to the Laws of Zambia.

Particulars in the first count a re that Andrew, being a public officer who was first secretary at the Zambian Embassy in Italy at the time and later deputy high commissioner to India, solicited and agreed to receive gratification from Locci amounting to two per cent of all monies paid to Frattelli Locci SRI by the Road Development Agency (RDA).

In the second count, it is alleged that Locci, on the same dates in Lusaka, agreed to give gratification to Andrew amounting to two per cent of all monies paid to Fratelli Locci SRI by RDA.

The duo through their lawyers Eric Silwamba and Sakwiba Sikota had asked Chief Resident Magistrate Joshua Banda to quash their indictment on grounds that they were charged under the Anti-Corruption Commission (ACC) Act number 38 of 2010, which has been repealed by the recently enacted ACC Act number 3 of 2012.

But Director of Public Prosecutions (DPP) Mutembo Nchito, who is the lead prosecutor in the matter, argued that there was nothing wrong in charging Andrew and Locci using the repealed law because the law used was the one existing at the time the alleged offence was committed.

In his ruling yesterday, Magistrate Banda referred the matter to the High Court and halted the criminal proceedings against the pair pending the determination of the matter by the High Court.

He said it was inevitable that the matter be halted in the subordinate court while awaiting guidance by the High Court on constitutional matters arising from the case.

Magistrate Banda, however, said the same did not mean that the case had closed or collapsed.

He said it was his view that in the light of the question raised by the defence, theirs was a proper case for his court to invoke Article 28 (2) (a) of the Constitution of Zambia and refer the matter to the High Court.

“The question the High Court is being invited to determine is that of constitutionality of charging the accused persons on repealed legislation and the applicability of section 14(3) of Chapter 2 of the ACC Act,” Magistrate Banda said.

Magistrate Banda, however, said that he could not quash the indictment as prayed by the defence because doing so would be delving into what the defence had argued were constitutional issues and that would be stepping outside his jurisdiction.

“Obviously if I did that I will be stepping outside my jurisdiction. I am impotent to determine constitutional issues.

“Needless to state that the criminal proceedings shall inevitably be halted here as we await the guidance by the High Court. The case has not died neither has it collapsed. The status of the accused shall remain as it is. A1 on police bond and A2 on bail,” he said.

Magistrate Banda said according to the law, the criminal matter before a magistrate court could not continue until the question raised was resolved by the High Court.

Andrew and Locci would appear for mention on October 1, 2012.

And United Party for National Development (UPND) president Hakainde Hichilema yesterday appeared for mention in a Lusaka magistrate’s court in the case in which he is charged for allegedly publishing false news with intent to cause fear and alarm to the public.

The court has since set October 1 to 5 this year as dates for possible commencement of trial.

This is in a case in which Hichilema has been charged with publication of false news with intent to cause fear and alarm to the public, contrary to Section
67(1) (2) of the Penal Code CAP 87 of the laws of Zambia.

Particulars of the offence were that on June 11, this year, Hichilema, 50, orally published statements in which he said, among others, that “the PF had signed an arrangement for the militia in Sudan to train PF youths. Prepare for trouble. Do you know what is going on in Darfur? Do you know what is going on in Abyei? Do you know what is going on there? Killings!”

And 15 Barotse Freedom Movement (BFM) members who were arrested by police in Mongu in connection with the tearing of copies of the Lozi draft Constitution last week yesterday appeared in Kaoma Magistrate Court.

Western Province police chief Fanwell Siandenge said in an interview yesterday that the BFM members appeared in the morning befo re Mongu Magistrate Exonorbit Zulu.

Mr Siandenge said those arrested were charged with malicious damage and conduct.

The court set October 4 and 5, 2012, as dates for the commencement of trial.

[Times of Zambia]