Lawyers representing former President Rupiah Banda have asked the Lusaka Magistrate Court to dismiss their client’s case of abuse of authority on grounds that the law on which he was charged and arrested does not clearly specify what offence he was facing.
The team led by Professor Patrick Mvunga further argued that the law under which the former President was charged did not operate retrospectively and that the matter is constitutional and should be referred to the High Court for determination.
The defence team said this during commencement of trial in Lusaka yesterday before Senior Resident Magistrate Joshua Banda in a case in which Mr Banda was charged with abuse of authority while serving as President by the state.
The state has alleged that on dates unknown but between 1st May 2008 and 24th September 2011 the former head of state did abuse his authority of his office by procuring a government to government oil contact in the name of the country which infact was meant to benefit himself and his family where by he instructed his son Henry Chikomeni Banda to determine the destination of the funds which were the proceed of the contract.
However, the defence team argued that section 31 as read with Section 41 of the ACC Act No. 3of 2012 was substantially different from Section 89 (1) of the Penal code.
They also argued that the charge under which Mr Banda was charged had been repealed and was not part of the penal code. Further they added that Mr Banda was not the Republican President on May 1 2008, when the offence was reportedly committed.
Although he allegedly committed the offence in his personal capacity the charge sheet indicated that he was charged in his capacity as President.
But Mr Nchito asked the court not to entertain the application saying the complainant took plea in the same court and understood the charge.
“I will argue as I did last time that the Interpretation and General provisions Act number 92 is quite clear and requires no debate amongst lawyers,” Mr Nchito said.
He said the law provided that offences that were committed during the current repealed law should be treated as though the repeal had not occurred and that there was no constitutional issue that had been raised by the accused. “On the claim that the accused was not president on May 1, 2008, my simple response is that this is a matter for evidence. It is premature to raise that point let alone to pass it on as a Constitutional issue,” Mr Nchito said.
Magistrate Banda adjourned the case to Friday to enable the State submit written submissions as well as the defense to respond to the State’s oral and written submissions.