Africa-Press – Zambia. Lusaka Magistrate Ireen Wishimanga has dismissed an application by the Drug Enforcement Commission (DEC) to warn former Minister of Foreign Affairs, Joseph Malanji for allegedly interference of witnesses in the matter.
This followed an application by the Prosecution that presented a senior investigations officer from the Anti-Money Laundering Unit, Mukelabai
Kwaleyela, who submitted that as an arresting officer, he had great difficulties to help prosecute the case as he had information that accused number two, Mr. Joseph Malanji, was interfering with witnesses.
However the Defence led by Makebi Zulu from Makebi Zulu Advocates, objected to the submissions deeming them speculative, unproven and had potential to prejudice the accused persons.
Magistrate Wishimanga dismissed the application for lack of evidence and refused to mete any sanctions or punishment. She however warned that if there was anyone interfering with State witnesses, they will be punished.
Hon. Wishimanga earlier in the week cautioned the Drug Enforcement Commission against wasting the court’s time as they insisted on adjourning the matter on the pretext that some witnesses were writing exams and that others had other commitments and couldn’t come at short notice when the matter was last adjourned in April 2024.
The magistrate has urged the commission to make efforts to ensure witnesses were always available in the case.
This was after the prosecution applied for an adjournment after failing to secure witnesses for that day
VERBATIM
Fredson Yamba, Joseph Malanji Vs The People
Before Magistrate Hon. Ireen Wishimanga
Lusaka-Friday, 21st June 2024
Prosecution; we have an issue of concern that we wish to bring to the attention of the court. To avoid giving evidence from the bar, We call our witness.
Witness; I’m Mukelabai Kwaleyela, Senior Investigations Officer, Anti Money Laundering Investigations Unit of the Drug Enforcement Commission.
Kwaleyela; Your honour I’m facing serious challenges in bringing witnesses to court in this matter.
I have information that my witnesses are being interfered with by one of the accused persons. The witness were called by accused number two, Mr. Joseph Malanji while we were in Turkey in 2022.
When I head about this, I confronted the witness, and he confessed to me that Mr. Malanji called him. This was in December 2022.
I also received a call yesterday from our contact in Lubumbashi Consul in DRC, that my witness was being called by persons using a Zambian number and being offered money not to travel to Lusaka to come and testify in this case.
I also recently suffered a setback were all my witnesses in Turkey, including embassy staff were uncomfortable to come and testify citing security reasons.
Some of those witnesses are in the employ of the Zambian Government.
Your Honour, the accused person, is also interfering in the case. Your Honour, my case is being frustrated.
Magistrate Wishimanga; Witness, state clearly to the period and details of the allegations. We need to know if the alleged interference is taking place now or in the past. Do you have evidence for your assertions?
Kwaleyela; I can’t remember exactly but this interference started since the list of witnesses was provided to court as per procedure.
Prosecutor; When was the list provided to the Court?
Kwaleyela; I don’t remember but it is sometimes this year after April 2024.
Prosecutor; What is the name of the witness from Lubumbashi?
Kwaleyela; Charles Kabozya.
CROSS EXAMINATION
Makebi Zulu; Witness, you had mentioned of Mr. Sam Sankenga, yet at the time you say he was called, he had already testified.
Kwaleyela; Yes. He had testified already.
Makebi Zulu – who called you from Lubumbashi.
Kwaleyela; a member of staff from the Consular.
Makebi Zulu- It’s your testimony that a member of staff, told you that a witness was being called? What’s the name of the member of staff?
Kwaleyela; I can’t disclose the name.
Makebi Zulu- so you were told by the witness or by member of staff who was told by another person?
Kwaleyela; by another member of staff.
Makebi Zulu-do you have the phone numbers that were calling the staff?
Kwaleyela; no I don’t.
Makebi Zulu- Can you state with certainty that it is the accused person (Hon. Malanji) who was calling your witness?
Kwaleyela; I cannot, I’m not certain. It is based on my reasonable suspicions.
Makebi Zulu – Your reasonable suspicions? I have no further questions Your Honour.
RE-EXAMINATION
Prosecutor- what do you mean that it is reasonable suspicions.
Kwaleyela; I suspect it is Mr. Malanji.
Witness released.
Prosecutor; Your honour this development is serious. The accused persons were granted bail. One of the cardinal issue is that they must not interfere with the case in court. You have heard that the accused person started interfering with witnesses from the moment investigators travelled to Turkey.
Your honour, the court has got powers to revoke the bail as the conditions are precedent to the orders of the court.
It is important that the Court is made aware of the issues affecting this matter in the background. It is important that the Court strongly warns any person interfering with the witnesses.
Prosecutor 2- We have informed the Court of the difficulties we are facing in prosecuting this matter. We are now hearing of possible interference of witnesses.
RESPONSE BY MAKEBI ZULU
Makebi Zulu- the submissions made by the Prosecution are based on suspicions, assumptions, conjecture, were speculative and highly opinionated.
These assertions remain unproven. No evidence or documents have been submitted to prove the assertions but have potential to prejudice the accused persons.
We must remember that it is the State that has been persuading the Court to adjourn matters stating that they had difficulties in presenting witnesses to court.
The Prosecution has submitted in the past that witnesses could not travel because of short notice, or were writing exams.
We don’t know who those witnesses are. We don’t know which witnesses could not travel at short notice or were writing exams.
We therefore object to the call for direct reprimand to the accused persons as their application is based on mere speculations and unproven allegations.
Bernard Steffani Defence Lawyer; Your Honour, as Hon. Makebi is saying, the submissions by the arresting officer are mere speculations.
Prosecutor; What we seek from this court is to strongly caution any persons interfering with the witnesses.
Prosecutor; Your Honour we hold that our witnesses have been contacted before they come to testify.
Makebi Zulu- Objection Your Honour. There is no such evidence before.
Prosecutor – we have suspicions that the witnesses have been contacted, like the case of our witness from Congo.
Therefore inference can be drawn that there has been attempts to interfere with witnesses.
We wish to put it on record that we are having great difficulties to bring witnesses to court.
RULING BY MAGISTRATE WISHIMANGA
I have heard the application by the Prosecution and response by the Defence.
I have also analysed the evidence submitted in the allegations to that the accused persons are interfering with witnesses.
There is no evidence provided to the court that interference of witnesses is taking place.
For example, Charles from Lubumbashi should have travelled many days ago but we are being told that he was called yesterday not to travel.
What about the case of local witnesses?
At this stage, there is no evidence provided to court that the accused persons have been interfering with witnesses.
I wish the Prosecution could provide credible evidence of the assertions that would prove that the accused persons were interfering with witnesses.
I therefore cannot provide sanctions against the matter that has not been proven.
However, as the Court, I wish to warn sternly that if anyone is interfering with witnesses or the process of the court, if proven, such a matter will be dealt with serious sanctions.
Prosecution; We wish to apply for adjournment. We have four witness.
Matters adjourned to Monday, 24th June 2024 for status conference.
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