Africa-Press – Zambia. PAMBASHE PF member of parliament Ronald Chitotela has been exonerated by the Economic and Financial Crimes Court for acquiring a house in Lusaka’s Ibex Hill and K500,000 using ‘illegal gains’.
Upon being discharged, Chitotela said, “Don’t fight Chitotela, fight corruption. If you want to fight Chitotela naine ndimuntu ndanaka (I am also human, I get tired) I have been persecuted for long, I need peace”.
Principal resident magistrate Jennifer Bwalya has ruled that Chitotela’s exemption from prosecution by the Anti-Corruption Commission dated June 24, 2019 is still in force and prosecuting him for possessing property suspected to be proceeds of crime when he was let off the hook by the ACC upon forfeiting his property will amount to penalising him twice.
This is in a matter where Chitotela was facing two counts of possessing property suspected to be proceeds of crime contrary to section 71(1) forfeiture proceeds of crime no.19 of 2010 of the Zambian laws. Allegations are that between May 1, 2017 and October 30, 2018, Chitotela possessed property no 3270/M, valued at K380,000 suspected to be tainted.
In the second count it was alleged that Chitotela between November 3, 2017 and December 5, 2017 received K500,000 from veil construction limited through RKC Travel and Guide Limited Account No. 62489001398 suspected to be ill gotten.
At the last sitting, Chitotela’s lawyer Andrew Kampamba Kombe made an application that the charges be dismissed pursuant to Article 18(5) of the Constitution which states that a person who has been tried or convicted on a specific offence shall not be tried on the same offence.
“A quick look at the indictment will show that the two counts were a subject of a consent settlement pursuant to section 80 of the ACC Act no.3 of 2012. The consent settlement will show count one and two of the indictment,” he said. “There was an undertaking by ACC not to institute any criminal proceedings against Chitotela in relation to the charges. We are taken aback by the ACC to indict the accused person on the same charges.”
Kombe asked the court to determine whether or not the settlement falls within the ambit of Article 18(5) of the Constitution. In response, ACC prosecutor Martin Mayembe argued that Chitotela was not tried before any court in relation to the charges.
“Trial begins after a person takes plea and the accused did not take plea. The submission by the defence of the acquittal is misplaced. The accused never appeared before court in relation to the said charges. The question before court is whether Section 80 of the ACC Act no.3 of 2012 may result in an acquittal,” Mayembe said. “There is a way undertakings can be resolved when there is breach and the state will be ready to defend. We pray that the application be dismissed and plea be taken by the accused.” But Kombe argued that Mayembe was blank about the consent which bordered on the matter before court.
“This is a matter that was called in court and the accused took plea. It was on that particular day when the prosecutor frowned that the settlement would be filed in court. The settlement was endorsed by the then chief resident magistrate. The settlement was imposed by the ACC and they were satisfied that the accused had met the requirements of section 80 of the ACC Act,” he said. “For the prosecutor to say that there was no trial is trying to mislead the court. The state has not given evidence in their response that the consent has been set aside or breached. The breach of this undertaking is neither here nor there. As defence we are sure that the accused was tried before a competent court which resulted in the consent settlement.”
Kombe added that Section 128 of the Criminal Procedure Code is instructive that a person cannot be tried on the same facts and it was the reason they had raised a plea in bar.
Chitotela’s other lawyer Benjamin Mwelwa said if the ACC breached the consent the right thing to have been done was to commence an action before court in order to have an opportunity to defend itself.
But Mayembe raised a preliminary issue pursuant to Rule 33 (1)(d) of the Legal Practitioners’ Rules requesting that Kombe recuses himself as he was a potential witness of the commission in the matter.
Ruling on the matter, magistrate Bwalya said Chitotela took plea in relation to the nine corruption related charges he was facing and the state made an application before court that a settlement be filed.
She said according to Section 80 of the ACC Act the commission is by law allowed to enter into negotiations with the intended or actual defendant in criminal proceedings and settlement or undertakings shall be registered and can be sued upon once registered in court if breached.
She explained that the ACC under the said provision undertakes not to institute criminal proceedings against a person who has fulfilled conditions precedent to the said undertaking which conditions maybe a full and true disclosure of certain information or a voluntary act done in furtherance of the same and that parties are bound by the settlement or undertaking.
“The ACC undertook not to institute criminal proceedings against Chitotela pursuant to section 80 of the ACC Act for the very charges that he now stands before me,” magistrate Bwalya said.
“Ronald Kaoma Chitotela having satisfied the requirements of Section 80 of the ACC Act no.3 of 2021, the Anti-Corruption Commission precluded him from prosecution and the said undertaking showed that the ACC committed not to disclose the contents of the agreement to any unauthorised person, entity including members of the public.”
She noted that ACC took into account the full and true disclosure made by Chitotela, and the settlement was given an exhibit in marking and it had taken into account the payment and forfeiture of property made by Chitotela.
“There is before me no evidence of the settlement between the parties or indeed a binding undertaking by ACC as having been set aside through any judicial process or that it was subject or order of any superior court. Proceeding with the matter whilst the said settlement remains in force will be in essence subjecting the accused to the evils of some form of double jeopardy (punishment) which the laws in Zambia frowns upon,” said magistrate Bwalya. “I find that the matter on which the accused is charged is incompetent for the above reason. I must make it clear that the view I have taken does not in any way amount to an acquittal but a discharge of the accused person. I therefore order that Ronald Kaoma Chitotela be and is hereby discharged on of the charges herein forthwith.”
Speaking after he was freed the former minister of tourism urged the commission to focus on fighting graft unlike targeting him as he was weary of being victimised.
“The law has been respected and we are humbled. Where you have a system that is burnt for persecution this is the end result but God in heaven is bigger than all of us. I knew that it is a process and it will pass but I want to appeal that please let us respect the law. We declare ourselves to be a country that is governed by the law, let us respect the rule of law,” said Chitotela. “Instead of investigating crime we are oppressing people and beginning to investigate them. Don’t fight Chitotela, fight corruption. If you want to fight Chitotela naine ndimuntu ndanaka (I am also human, I get tired) I have been persecuted for long I need peace.”