High Court refers Andrew Banda and Locci ‘s case back to lower court, Magistrate can make a decision

THE Lusaka High Court has referred back to the subordinate’s court, a matter in which former President Rupiah Banda’s son, Andrew and his co-accused Fratelli Locci, director at an Italian construction company, are charged with corruption saying the issue has nothing to do with the contravention of the accused persons’ fundamental rights.

Judge Evans Hamaundu said there was no need for Chief Resident Magistrate Joshua Banda to invoke Article 28 of the Constitution and refer the matter to the High Court.

He said magistrate Banda should be able to refer to the several authorities cited by both parties and make a decision on the application.

This is in a matter in which Banda and Locci are jointly charged with two counts of gratification for giving assistance on contracts contrary to the Law.

Banda and Locci through their lawyers Eric Silwamba and Sakwiba Sikota had asked magistrate Banda to quash their indictment claiming they were charged under the Anti-Corruption Commission (ACC) Act number 38 of 2010, which has been repealed by the recently enacted ACC Act number 3 of 2012.

In his ruling, magistrate Banda temporarily halted the criminal proceedings against the duo while he referred the matter to the High Court to determine the constitutionality of prosecuting a person on charges contained in a repealed law.

But Judge Hamaundu in his ruling on Monday referred back the matter to magistrate Banda for him to deal with the application.

“What is before the court is, simply an application by the accused to quash the charges on the ground that they relate to offences which are contained in a repealed law. The learned Chief Resident Magistrate should be able to refer to the several authorities cited by both parties and arrive at a decision.

“Therefore, I send this matter back to him for him to deal with the application that is before him,” Judge Hamaundu said.

[pullquote]“What is before the court is, simply an application by the accused to quash the charges on the ground that they relate to offences which are contained in a repealed law. The learned Chief Resident Magistrate should be able to refer to the several authorities cited by both parties and arrive at a decision.[/pullquote]

He said there was no issue before the court below concerning the contravention of the fundamental rights of the accused and as such, there was no ground for the court below to invoke Article 28 (2) and make the reference to the High Court.

He said none of Articles 11 to 26 of the Zambian Constitution provided that a person shall be charged with an offence contained in a repealed law.

He said freedoms contained in Articles 11 to 26 inclusive could be set in motion adding that the fundamental rights granted in the said Articles were specific and unambiguous.

He said the protection from being charged under a repealed law was not a right granted under any of the Articles that protect the fundamental rights and freedoms of an individual.

“Consequently, when an issue arises concerning the propriety of charging a person with an offence under a repealed law, such issue has nothing to do with the contravention of fundamental rights. Therefore the provisions of Article 28 cannot be invoked” the Judge said.

Particulars in the first count are 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 percent of all monies paid to Fratelli Locci SRI by RDA.