Former Malawi Defence Force (MDF) Commander General Henry Odillo and five other accused persons charged with eight counts of financial fraud and abuse of office related to K2 billion Cashgate, yesterday raised objections against the start of their trial.
The defence argues that the State has multiplied the charges against the accused persons against the spirit of the law and argues that some of the particulars of the charges are vague.
The submission of the preliminary objections yesterday at the High Court in Lilongwe prevented the accused persons who include Odillo, 57, his then deputy Clement Kafuwa, 63, former Accountant General David Kandoje, Retired Lt Colonel Nelson Kauwa Banda, 62, and Ganizani Kuchombo, 39, from taking plea on the matter.
Odillo and others learnt in court that they were facing eight counts: 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.
However, lead lawyer for the defence Titus Mvalo (SC) argued that there was a lot of multiplicity of the charges based on the same facts which were previously ruled against in past court rulings.
He also noted that in the count of conspiracy, there was no detail on the place where the crime allegedly happened. Mvalo also took issues with the mere mentioning of the term Standard Bank as the place where the money laundering offence occurred, asking the State to amend the charge sheet while also arguing on failure to identify other people who were part of the conspiracy only identified as “others” on the charge sheet.
But State prosecutor Kamudoni Nyasulu argued that on the conspiracy charges, the cases cited by the defence were before laws such as the Money Laundering Act and the Public Finance Management Act were enacted and added that since then, courts have accepted that conspiracy cases could stand without the State specifying the exact time and place of the crime.
“All the people are not supposed to sit on the same table. The evidence submitted is the one which decides whether a conspiracy has taken place or not,” added Nyasulu.
After hearing the various arguments, Justice Kapindu adjourned the case to a date to be fixed which the Judiciary will communicate.
When the judge rules on the objections, the court is then expected to see plea taking by the accused persons while also a determination is likely to be made on the planned move to prosecute in South Africa owners of the company Thuso Group, which supplied equipment under the fraudulent deal, are based in South Africa.
According to the 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.