The High Court i n Lilongwe has adjourned a case in which Cashgate convict Leonard Kalonga awaits sentencing to allow the prosecution and defence teams to iron out differences which have arisen.
The adjournment comes after Director of Public Prosecutions (DPP) Mary Kachale protested the inclusion of information in a document purportedly authored by Kalonga listing beneficiaries of a K4.3 billion loot which he took part in swindling the government.
Kalonga was convicted last August on charges of conspiracy to defraud the government, facilitating money laundering and money laundering.
I n m i t i g a t i o n submissions, Kalonga claims that the list was submitted to the Anti- Corruption Bureau (ACB) and he wanted to plead guilty long before but he was not allowed to do so.
But Kachale said such information is not before her office as the document was not shared with her office.
In her ruling on the matter, presiding judge Fiona Mwale faulted defence lawyer Emmanuel Theu for taking the prosecution by surprise with the mitigations in the submissions.
She said it was the responsibil ity of the defence to alert the prosecution of any areas of dispute after a defendant pleads guilty.
Mwale said much as procedure states that mitigation cannot be cross-examined on certain matters such as that an accused has a family he takes care of, in this case, the mitigations did not tally with the submissions already made and the State had every right to lodge a complaint.
The judge expressed her displeasure with the delays in concluding the case then outlined steps she wants to be taken for the case to resume without further disruptions.
In her order following the prosecution’s application for a production order from the ACB, Mwale asked the State to file within two days a written notice of all issues in dispute before the sentencing submissions hearing.
Said the judge: “The State should file affidavits with evidence in support of the issues under dispute within seven days. Afterwards, each party should state its intention to cross-examine anyone within 14 days.
“If any witness is not willing to swear to an affidavit that should be communicated for the court to subpoena them, if the State considers it necessary to file skeleton arguments, these should submitted to the defence for responses.”
Before adjouring the case, Mwale added: “I have clearly spelt out how this matter should proceed and I will not tolerate any excuses from you.”
In an interview after the ruling, Theu explained that the judge has opted for the Newton hearing which is an option court when there is a clash between the prosecution and defence.
He said: “At mitigation before the court sentences a convict, there arises a situation when the State and defence don’t agree so there is a procedure either by jury or to hear witnesses or the court can say the divergence on facts noted. In this case, the court has opted to hear witnesses.”
Kalonga was convicted in August last year on his own plea of guilty but sentencing has delayed for a long time after contractual issues arose with his counsel.