The High Court in Lilongwe on Friday ordered the State to review its charges against former Malawi Defence Force (MDF) Commander Henry Odillo and five other accused persons and drop some counts.
Justice Redson Kapindu made the ruling following preliminary objections in December whereby Odillo’s defence team, alongside lawyers for the other accused persons former deputy commander Clement Kafuwa, former Accountant General David Kandoje, Retired Lt Colonel Nelson Kauwa Banda, and Ganizani Kuchombo protested the framing of the charges.
Odillo and others were charged with eight counts of financial fraud and abuse of office related to suspected K2 billion Cashgate, but their defence argued that the multiplicity of the counts was against the spirit of the law. They also argue that some of the particulars of the charges are vague.
In his ruling, Kapindu agreed with lead defence lawyer Titus Mvalo that the State should review a number of counts which initially included conspiracy, improper payments, use of public office for personal advantage, dealing in contract, money laundering, gross negligence and influencing the use of public office for advantage.
“It is patently clear that there are a number of counts that seek to punish the accused persons twice based on the same facts. Principles of natural justice discourages this,” said Kapindu.
He further challenged the prosecution led by veteran Cashgate special prosecutor Kamudoni Nyasulu, that repeating the same charges “under different offences simply because it is technically possible under law is bad prosecution practice.”
Speaking to journalists outside the court after the ruling, Nyasulu said the State is ready with the case after amending the charges.
“The court has agreed with some of the objections and has denied some. We will be ready to start the case once the court has a date. The defence has called for the ruling which the judge will e-mail us and also a copy of the new charges to confirm that we have complied with the order of the judge. The judge has made an undertaking to provide the ruling by Monday,” said the prosecutor.
Nyasulu expressed hope that the court will not meet any further disruptions after noting that the trial has so far been characterised by a number of applications and adjournments.
After hearing the various arguments, Kapindu adjourned the case to a date yet to be fixed and communicated by the Judiciary. When the judge rules on the objections, the court is then expected to see plea taken by the accused persons while a determination is also likely to be made on the planned move to prosecute in South Africa owners Thuso Group, which is alleged to have supplied equipment under a deal now deemed fraudulent.
According to the previous charge sheet by the Anti-Corruption Bureau (ACB), the prosecution centres around payments made by the military, between March and September 2013, to Alexander Banda of Thuso Group amounting to ZAR 30 000 000 (K1.4 billion) and K929 810 000.
Former budget director Paul Mphwiyo, although not arrested in connection with the case, was also named as one of the alleged beneficiaries on the charge sheets as previously reported by Nation on Sunday. But the Director of Public Prosecutions (DPP) denied ACB consent to prosecute the matter, but instead is now prosecuting Mphwiyo in a separate trial. n