Andrew Banda, Locci appeal to Supreme court

FORMER President Rupiah Banda’s son Andrew and Italian businessman Antonello Locci have appealed against the decision by High Court Judge Evans Hamaundu to refer their case back to a subordinate court.

Banda and Locci said through their lawyer Jack Mwiimbu that they have appealed to the Supreme Court to determine the constitutionality of the charges that have been levelled against them.

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.

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on grounds that they were charged under the Anti-Corruption Commission (ACC) Act number 38 of 2010, which has been repealed by the recently enacted ACC Act number 3 of 2012.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who is the lead prosecutor in the matter, argued that there was nothing wrong in charging Andrew and Locci using the repealed law because the law used was the one existing at the time the alleged offence was committed.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 earlier in September, 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, 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question the High Court is being invited to determine is that of constitutionality of charging the accused persons on repealed legislation and the applicability of section 14(3) of Chapter 2 of the ACC Act,” Magistrate Banda said.

However last week the High Court referred the case back to the subordinate’s court.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.

The matter came up yesterday for mention before senior resident magistrate Joshua Banda in the Lusaka Magistrate’s Court.

Defence lawyer Mwiimbu said the matter cannot proceed in the subordinate court until the Supreme Court determines the constitutionality of the charges against the duo.
“The matter that is under consideration in the Supreme Court pertains to the constitutionality of the charges against the two accused persons and the same cannot be determined and resolved by this honourable court,” Mr Mwiimbu said.
He said the accused persons have appealed to the Supreme Court and that the date for hearing of the appeal has not yet been set.

But State prosecutors said they are aware of the appeal to the Supreme Court but that the proceedings in the subordinate court cannot be stopped.

They said the High Court sent back the matter to the subordinate court to make a decision on whether it should quash the indictment or not.

Magistrate Banda has set October 11 as the date for ruling on how the matter should proceed.