A LUSAKA magistrate’s court is today expected to give guidance on whether the State prosecution can use a photocopy evidence , rather than the origibnal as evidence in the trial of former Republican President Rupiah Banda.
This follows the objection raised bt Mr banda’s laywers when the first witness could not provide an original document. The first witness testified that during his course of investigations he discovered a request letter with former Minister of Energy, Kenneth Konga, in which Banda was requesting for 45,000 barrels of crude oil per day from a Nigerian Company and was signed by the accused.
Mr Kasonka Derrick, 44, of Lusaka’s Emmasdale police camp told the magistrate that he was currently attached to the Government Joint Investigations Team (GJIT) and was assigned to search Mr Konga’s Kabulonga resident on December 23, 2011 and in the process found several documents and recorded them on the Anti Corruption Commission (ACC) form 12.
He said on one document it was written ‘Request for a 45,000 barrels per day term crude oil purchase contract and proposed solid mineral trade,” and was authored by the accused person and addressed to then Nigerian President Umaru Musa Yar’adua.
Banda is represented by his lawyers, Sakwiba Sikota of Central Chambers, Patrick Mvunga of Mvunga and Company, Erick Silwamba of Silwamba and Company and Irene Kunda of George Kunda and Company.
“This is a State House document, has the date stamp dated 27th November 2008 and is signed by the former President Mr Rupiah Banda. The document is a photo copy as I could not find the original document,” he said.
Mr Kasonka said when he asked Mr Konga about the original document, he said he was told that he only had the photocopy which he came across when he was preparing to vacate office.
And when he was asked what he wanted to do with the document he responded that he wanted to submit it as part of evidence but the defence objected to the production of the document saying the rules of evidence were hijacked.
Mr Lubinda Linyama from Erick Silwamba and Company submitted that the rules of evidence were clear in that the witness must satisfy the court that there was diligent search of the original and proof that he failed to get it.
“The witness has lamentably failed to tell the court if he made any efforts to search at the Ministry of Energy, State House or indeed at Government offices to verify if such a request was made by our government. He only inquired from Mr Konga, that is not enough and we ask this court to reject the document as part of evidence, let the court apply previous rulings in this matter,” he said.
But Mr Nchito said this was the best evidence that the witness had given because that was the document that he found at Mr Konga’s residence and that foundation had been laid and that Mr Konga was on summons in readiness to come and testify.
But in response another defense lawyer, Professor Mvunga submitted that the preposition made by the DPP amounts to saying that the admissibility of secondary evidence is permissible if one conducted a search at one particular place and asked him to produce such law.
Magistrate Banda adjourned the matter to today to allow him ample time to peruse all the Laws cited in order to give proper guidance in the matter.
LT your related news column is rather unrelated news
A photocopy can be manipulated with two or more documents. You photocopy , then paste and again photocopy. Mutembo you will fish dried tilapia.
If truely the paper is an evidence why nt produce an original? These state witnesses they don’t knw what they are doing.
The original was sent to Nigeria. Remember Nigeria is the capital of corruption in Africa
IF THERE IS A PHOTOCOPY, THERE MUST HAVE BEEN AN ORIGINAL. RB CANNOT HIDE IN THE FACT THAT THIS IS A PHOTOCOPY. A LOT OF MONEY WAS STOLEN BY MR RB AND WE WILL NOT LET HIM GO SCOT FREE. IT IS NOW BECOMING VERY CLEAR THAT RB IS HIDING SOMETHING. AND FROM THE WAY I SEE THINGS, ALL THE LOOP HOLES ARE GRADUALLY BEING SEALED SLOWLY UNTIL THE TIME WHEN THE MAN WILL BE CAUGHT IN HIS OWN WED. EVEN IF YOU DESTROY THE ORIGINAL YOU CAN LEAVE A TRAIL THAT CAN LEAD TO YOUR BEING ARESTED. NDELOLESHAFYE.
Kolwe, courts do not work like that. Assumptions like there must be an original only work when you are jumping from tree to tree.
“….My friend told me that he saw him steal, your honour…” Wow! You gotta be kidding me, DPP.
Have not heard of electronic signature. Photocopies. Go to Soweto and see what happens with documents there. Cut and past and photocopy. combination of different documents. You dealing with Two former or so Presidents and not Kapoya from a compound together with Prof. lawers. Iyi ni 1-0.
spellings eish…. these editors must go back to school
There is no case to answer here. RB just go back to your farm in Chipata
Ok. RB sent the original to Nigeria. Nigeria says pay $. Who signs for the money and who pays? And to whom? I have never known a President handling money. Any Nation to Nation contract is dealt with by the Attorney G. What of the Auditor G? Did she show any money missing?
Palibe mulandu apa.
Hiding behind lame excused will not serve RB!!!!!! Iam sure the original is hiden somewhere if not destroyed! RB is surely hiding something!!!!!!!!!
People the ORIGINAL copy was sent to nigeria, how can you keep the ORIGINAL document,how are you going to procure oil if you dont send the ORIGINAL copy to the supplier?
Mulandafye tamwakwata namano! that photocopy is Evidence enough, let him alone deny that its not him who signed .or the was nothing like that.
Are you afraid of the photocopy? Juicy indeed.
shallow minds are too many in Zambia hence the slow development pace. Rules of evidence are original and we know where the original went so get the receipients to accepted receiving not just presenting photocopies which can be done in matero or soweto unless the court is also dull to allow such photocopies. Mutembo has a few nuts loose in his brain I thought he was intelligent but im beginning to doubt.
The dilema here is that previous judgements have thrown out photocopies submitted in court as evidence and also there is no law that supports submission of photocopy as evidence before court of law. This is how law becomes unfair, frustrating and injustice is never fully redressed by law. It has happened in Sata cases and others and will also happen in RB cases. Sorry, thats law folks.
Original document was sent to Nigeria so photo copy will do. Remember Nigeria can produce anything. Even Nigerias living in state house when Banda was presi.
By your word or interest? No man certified copy or original only. This is law. In fact Judge has already said no to the copy as state failed to provide ingredients of why they should use a copy!
Ok this is slippery! I think the judge will dismiss the production of the photocopy as evidence. He will not risk to admit it as evidence because that will open a Pandora box in future cases – the goodness is that it is a magistrate court. So if the judge admits a photocopy it will definitely be a ground of appeal to the high court and the high court will rule that the subordinate court errored.
The prosecution must be ready now becos if this evidence is thrown out, they have to come up with something better.
Just get on with the trial!
A photocopy can only be admissible evidence if it has been signed by an authorised person who has sighted the original document. This process is done under oath.
Well schooled man!. You will be surprised how many ignoramuses do not know that decalartion, there is a chain of them just above your comment.
Then let the lawyers sue the state for forgery if they are disputing that. Besides there is a witness who can tell the court the truth
Thats why Kachingwe has so much Audacity!!! he keeps saying MMD yaba Never’s is not the real one, He knows why he says. Never’s watch out!!!!!