GBM loses bid to have case referred to high court

By LUCY PHIRI

LUSAKA Senior magistrate Sandford Ngobola has dismissed an application by former Defence Minister Geoffrey Bwalya Mwamba to refer his matter to the High court for determination. 

Mwamba through his lawyers, Mr. Bonaventure Mutale state Counsel, Mr. Makebi Zulu of Makebi Zulu Advocates among others raised a preliminary issue to refer the matter to the High court following the court’s ruling to reject a document called DD1 into evidence.

Mwamba described the ruling by the court as devoid of legal reasoning.

This is a matter in which Mwamba pleaded not guilty to eight counts of conflict of interest, one count of money laundering and 15 counts of being in possession of property suspected to be proceeds of crime.

When the matter came up yesterday for continued defense, Mwamba asked the court to refer his matter to the High court for determination on whether it is constitutional for the court to reject the production of the DD1 document to be admitted as part of his evidence.

The defence argued that the ruling by the court was a violation of constitutional rights. 

In response, the state submitted that the court was empowered by law to make rulings or any orders as it deems fit and anything done in pursuant of a written law cannot be held to be a violation of constitutional rights. 

The state also complained that the defence are continuously making applications which is making the case to delay.

But the defence in response said it was the accused rights and he’s entitled to raise any issues that are pertaining to his defence.

“Our application is anchored on deny to a fair trial. It is quite evident that this point as elluded, the right to a fair trial your honour includes the right to receive a reasoning ruling or judgement,” defense submitted.

Mr. Zulu also argued that the accused wishes to know whether the conduct of his defence is being done in accordance with the law. 

“The unfortunate part is that this court cannot pronounce itself on the right to a fair trial and as such, he makes the application that this be refered to the High court for determination. The state is saying that the matter is being delayed, the question is what’s the hurry, is it for convenience and if it’s for convenience for whose convenience?

We pray that the right for the accused for a fair trial be determined by the appropriate forum which is the High Court, not doing so is what will be prejudicial to the accused,” submitted Zulu.

In his ruling, magistrate Ngobola dismissed the application by the accused person stating that he found it vigorous and lacks merit.

“I have heard the submissions by both the state and state counsel. As rightly submitted by the state, this application by the accused for constitutional reference is an appeal against the rule of this court disguised as a Constitutional reference. The accused is not happy that the DD1 is not admitted into evidence. This in itself does not raise any Constitutional reference for determination,” magistrate Ngobola ruled.

He said it was in his considered view that the application by the accused was a delta appeal.

“It is therefore my considered view that the application by the accused is a delta appeal. This in my view goes against established principal that there is no appeal. In the end, I find that the application by the accused herein is vigorous and lacks merit and I unfortunately dismiss it,” he ruled.

The court has since set October 19, 2023 for continued defense.

[/ihc-hide-content