“ACC’S APPEAL AGAINST SENTENCE OF CHANDA, KAMWIMBA AND MWAICHI IS BUILT ON FALSEHOOD, MALICE”

By Freelance Journalist

Following the conviction of former Postmaster Master General McPherson Chanda and two former directors namely Isaac Kamwimba and Best Mwaichi by the Economic and Financial Crimes Court on 13 counts of theft by public servant, the three appealed their sentence of 2 years simple imprisonment and the statutory judgement requiring them to pay back K335m on grounds which included the following:

i) That no funds were lost or stolen at ZamPost;

ii) The total funds received by ZamPost was K98m and;

iii) That they did not personally benefit from the placements of the funds into the fixed deposit by way of receiving interest since it accrued to ZamPost.

After the notice of appeal to the High Court filed by lawyers for Chanda, Kamwimba and Mwaichi the Anti – Corruption Commission (ACC) also proceeded to cross – appeal the sentencing as they deemed it too lenient. ACC’s grounds for the appeal are that by placing social cash transfer funds into a fixed deposit account, the trio diverted funds from the vulnerable or beneficiaries and therefore changed its purpose.

This article mainly highlights the testimony of Prosecution Witnesses (PWs) by looking at the evidence contained in the copy of the Judgment which readers are invited to verify. Based on the evidence, the article will show the falsehood and malice in ACC’s claim.

Observed: before sending funds to ZamPost, the Ministry of Community Development and Social Services (MCDSS) was required to give to ZamPost the Payment Lists or Schedules of beneficiaries of Social Cash Transfer funds in line with section 8.3 of the contract between ZamPost and MCDSS. However, MCDSS sent funds for bi – monthly payments to be made by ZamPost without any accompanying Payment Schedules or Lists for as long as 1 month to 3 months.

The said schedules were the only basis or instructions on which ZamPost was to pay funds to beneficiaries of social cash transfers. To all intents and purposes, therefore, it may be noted that without payment lists, ZamPost had no beneficiaries to be paid. As a result, the funds were idle and transferred to a ZamPost fixed deposit account for periods of 7 days on roll – over basis while waiting for payment schedules.

Prosecution witnesses namely Director Social Welfare – Kennedy Mumba (PW1), ZamPost Acting Director of Finance Frederick Chiwaya (PW4), ZamPost Financial Accountant Finance Oliver Phiri (PW , Moses Musonda (PW6) and Arresting Officer Victor Mutantabowa (PW11) all admitted during cross examination that there were delays in sending of payment schedules from the Ministry to ZamPost. They also agreed with the resulting implication that ZamPost could not pay the funds during the periods when the Corporation had no beneficiaries to pay due to the absence of Payment Schedules.

In addition prosecution witnesses Mumba (PW1) and Chifumbano (PW2) from the Ministry of Community Development both indicated the total funds received by ZamPost were about K98m. These were the total funds out of which amounts where rolled – over into a fixed deposit account 13 times while waiting for schedules. The wrongful addition of the different amounts from this K98m which were rolled over on a weekly basis is what amounted to K335m – forming a clear case of erroneous double counting. Curiously, does it mean if an amount of K30,000 ,for example, is placed into a fixed deposit account for 1 week and matures with interest of say K1,000 and the same amount is again placed or rolled – over into a fixed deposit account for another 7 days the total amount placed becomes K60,000.00? This type of error cannot be made by anyone who understands basic numbers, arithmetic or accounting. It is actually totally absurd!

In addition, prosecution witnesses Chiwaya, Musonda and Phiri (PWs 4, 6 and testified that no funds were stolen at ZamPost and that when funds left the ZamPost fixed deposit account; they were sent to paying Post Offices and paid to the beneficiaries. The witnesses further submitted in evidence that after payments were made to beneficiaries, reconciliation of payments was done with the Ministry and the unpaid funds were refunded to the Ministry of Community Development.

Lastly, in its appeal ACC leaves the public with the impression that the fixed deposit account into which the funds were being placed was a private or personal account for McPherson Chanda and the two former directors perhaps similar to other cases where individuals take huge public funds and deposit them into a personal account to earn interest and refund the principal. This did not happen here. Prosecution witnesses from ZamPost as well as the two bank officials from ABSA namely Chanda Kapeso (PW9) and Gideon Chibwe (PW10) testified that the fixed deposit account was for ZamPost and all the interest went to ZamPost and not the three convicted persons. The ABSA officials presented actual ZamPost Bank Statements to support their position. The three therefore derived no personal benefit from either the principal funds or interest.

Against the foregoing an observer of the trial of this case as well as its judgment and appeals, is left wondering as follows:

1) What harm, inconvenience or delay was caused to non – existent beneficiaries given that funds were being placed in a ZamPost fixed deposit account the absence of any payment lists of beneficiaries to be paid?

2) What alleged purpose of the funds was changed by ZamPost presumably under the definition of “Theft by Conversion of Purpose” as decided by Magistrate Sakuwanda when ZamPost transferred into a fixed deposit account idle funds which could not serve the purpose of paying beneficiaries in the absence of schedules from the Ministry?

3) How did McPherson Chanda and the two former directors divert or steal funds given that whenever schedules were eventually available, the funds payable were not again placed in a fixed deposit account but were immediately transferred to the Provinces and paid out to beneficiaries and the balance refunded to the Ministry as testified by the prosecution’s own witnesses?

4) How did McPherson Chanda, Isaac Kamwimba and Best Mwaichi steal and deserve conviction in the first place and a stiff sentence as appealed by ACC given that the fixed deposit account opened was not for him or any third party but ZamPost and all the interest accrued (amounting to K750,000) was used in ZamPost operations? Moreover ZamPost is a public institution whose net income accrues as dividends to Government.

5) Against the foregoing, why did the Magistrate convict innocent people of theft, jail them for 2 years and, worse still, require that they pay back K335M which was over 300% higher than what ZamPost received and paid out to beneficiaries with the balance refunded to the Ministry?

6) President Hichilema’s Government constituted the Economic and Financial Crimes Court and announced it as a fast track court for the prosecution of corruption and recovery of stolen public funds. In the Government’s view, what assets do they wish to recover from the three former public servants when they took no funds? Is it merely to afflict them with incarceration in jail and render them bankrupt?

It only takes the silence of good people for evil to prevail. When this kind or similar kind of injustice is committed against powerless citizens, Church and Community Leaders must act as the conscience of the Nation. This case is wrongly intended to be showed by strong forces within Government as an example of their zero tolerance for corruption. In the author’s opinion Magistrate Sakuwanda made the ruling under political pressure or out of the fear of being sanctioned or sent to a rural area as it recently happened to Magistrates at the Lusaka Magistrate Court following two rulings which displeased Government?

One cannot believe the corruption fight is intended to crucify innocent people and make them liable to pay back funds that were never stolen in the first place. By the way with the alleged K335m one can build about 900 housing units! Which bank accounts or properties have these huge sums of money been traceable to or seized? In this case, the accused and convicted three have never been said to be in possession of property reasonably suspected to be proceeds of crime because no theft happened. The wilful lies, exaggeration and wanton abuse of the Judiciary in this tragic case are appalling to the say the least.