THE Lusaka High Court has upheld a five-year sentence slapped on former Ministry of Health permanent secretary Kashiwa Bulaya by the magistrates court for corruption and abusing the authority of his office.
Supreme Court Judge Marvin Mwanamwambwa dismissed Bulaya’s appeal when he sat as High Court Judge yesterday.
“I uphold the conviction and this appeal has no merit. I also uphold the seizure of assets,” Mr Justice Mwanamwambwa said.
He said corruption was an offence in the class of crime for financial gain and the rationale for forfeiture was to make the crime non-profitable.
“He (Bulaya) must go to jail now,” Mr Justice Mwanamwambwa said.
On January 27, 2007, High Court deputy registrar Edward Musona jailed Bulaya for five years with hard labour on three counts of corruption and abuse of authority of office.
In the first count the court found that while Bulaya was permanent secretary, he disregarded tender procedures and corruptly engaged Butico A1, a Bulgarian firm, to supply a drug known as Elixir 9 at a cost of over K4 billion between August 17, 2001, and October 31, 2001.
In the second count of corrupt practices by public officer, the court established that between August 17, 2001, and March 23, 2003, Bulaya received K116, 755,000 from Butico A1 chief executive officer Angelo Yotsov as an inducement or reward for engaging his company to supply the drugs to the Ministry.
In the third count, Mr Musona found that between October 11, 2001, and June 17, 2003, Bulaya received K913, 431,000 from Yotsov for supplying the Elixir 9.
But in his appeal, Bulaya denied receiving K1 billion from Yotsov and argued that no witness testified that he engaged or contracted Butico A1 as alleged and that no witness gave evidence that he offered to purchase or actually purchased the Elixir whilst he was permanent secretary.
Bulaya argued through his lawyer Frank Tembo that the charges were inherently defective, misleading, and incorrect and that Mr Musona’s conclusion was contrived because he did not care to find out whether Bulaya was permanent secretary throughout the period covered by the charges.
Mr Tembo said tender procedures were followed when Bulaya chaired a ministerial tender committee meeting at which he introduced the Elixir, which was apparently already in circulation.
In his judgment yesterday, Mr Justice Mwanamwambwa said Bulaya was instrumental in the procurement of the Elixir since he introduced it to the ministerial tender committee and that he later introduced Yotsov to the committee the same day.
He said Bulaya and Yotsov were close business associates as they were both shareholders in Anbul Investments Limited where Bulaya was also managing director.
Mr Justice Mwanamwambwa said of the K3.2 billion paid to Butico A1 by the ministry, 53 percent went to Anbul and finally found its way to Bulaya.
He said it was clear that Bulaya had an interest in the supply of Elixir and that Anbul benefited directly and indirectly from the contract.
Mr Justice Mwanamwambwa said Bulaya should have declared interest, as required by law, and that he should not have participated in discussions for the procurement of Elixir.
He said it was clear that Bulaya breached section 9 of the Zambia National Tender Board Act.
Mr Justice Mwanamwambwa said the ministerial tender committee rejected the supply of Elixir but Bulaya approved it alone and signed a Memorandum of Understanding that gave business to Butico A1 headed by Yotsov, his close business associate.
He said Bulaya received millions of Kwacha between August 13 and December 2001 directly from Yotsov and indirectly from Anbul Investments.
Mr Justice Mwanamwambwa said Bulaya did not dispute receiving the money, did not explain why he got it, and it was therefore presumed that he received it corruptly.
He said Bulaya approved the payments for Elixir that started before he introduced the drug to the tender committee.
Mr Justice Mwanamwambwa said Mr Musona correctly convicted Bulaya on all three counts.
He warned Mr Tembo for using disrespectful language that was in bad taste when he described Mr Musona’s findings as contrived.
He said lawyers should respect judgments delivered by courts of law.
[ Daily -Mail]
