THE Prosecution team in a matter in which former Information and Broadcasting Services Permanent Secretary Sam Phiri and three others are charged with corruption has conceded duplicity in the first count but said the same does not warrant for quashing of the charge.
Phiri, former Zambia Daily Mail deputy managing director Davis Mataka, consultant Ngande Mwanajiti and the Zambian Newspaper Limited have raised preliminary issues asking Principal Lusaka Magistrate Aridah Chuulu, to quash the charge of corrupt acquisition of public property on their indictment on grounds that there was duplicity of charges.
But Anti Corruption Commission (ACC) Prosecutor Silumesi Muchula said yesterday that although it was true that there was duplicity in the first count, the same did not call for the court to quash the indictment.
Mr Muchula instead asked the court to allow the State to make amendments to the indictment so that the accused could proceed to take plea.
“We concede your honour that there is duplicity in the statement of the offence under count one in that section 33 (1) (b) creates a separate offence from that cited in section 33 (2) (b). However the question to be answered is whether the accused has suffered prejudice or embarrassment to warrant the quashing of the indictment on account of duplicity,” Mr Muchula said.
He said there has been no prejudice or embarrassment suffered by the accused so far and as such, the motion to quash count one at this stage was premature especially that the accused had not even taken plea.
He said he strongly believed that the remedy for the duplicity did not lie in quashing the count but that necessary amendments could be made to the indictment to make it more suitable for the accused to take plea.
“It’s my humble prayer that count one should not be quashed but the prosecution be allowed to make necessary amendments to the indictment.
Phiri’s defence lawyer Charles Lisita who maintained his motion to have the count quashed said it was however heartening to learn that the State was conceding to duplicity of the count.
And Mwanajiti’s lawyer, Lillian Mushota sought guidance from the court on the move by the State to save the fourth accused (Zambian newspaper) with summons yesterday when the court had already ruled that they would proceed without summons.
Ms Mushota also told the court that she was not competent to represent the newspaper because it was a limited liability company with two directors who are also shareholders of the company.
She said that since the company was governed by the Company Act, issues relating to its legal representation have to be as a way of resolution adding that unless she saw such resolutions from the two directors she felt incompetent to represent the newspaper.
But Mr Muchula said the summons was duly served on one of the directors, Mwanajiti, and as such Ms Mushota should have obtained instructions from Mwanajiti.
Magistrate Chuulu reserved ruling to January 30, 2013.
Phiri, Mataka and Mwanajiti are in the first count charged with corrupt acquisition of public property and revenue.
The Zambian Newspaper Limited, which is the fourth accused and in person being represented by Mwanajiti, is separately charged with unlawful printing and publication.
It is alleged in count one that Phiri, Mataka and Mwanajiti fraudulently diverted K202, 696, 050 Public Media Support Fund from the Ministry of Information and Broadcasting Services for the production of a newspaper called, “The Zambian.”
In the second count, Mataka alias “John Allan Mugwida” and Mwanajiti alias “George Banda,” unlawfully published a newspaper called “The Zambian” which was not registered at the National Archives Department.
The offences were committed between January 1, 2011 and November 1, the same year in Lusaka.