AFTER finally appearing in court in following their arrest almost two weeks ago, 11 suspects in the gold scam case where yesterday received by a certificate to deny them bail.
The State, through DPP Gilbert Phiri, indicated in the certificate presented in court that granting the 11 suspects bail would be prejudicial to the interest of the Republic of Zambia.
The accused are Walid Botros, a businessman, Mounir Shaker Gerges Awad, a businessman, Mohamed Abdelhak Mohamed Gooda, a retired colonel, Yasser Batros, a security manager.
The Zambians suspects are Shaderick Kasanda, a businessman and miner, Patrick Kawanu, a commercial pilot, Oswald Diangamo, an accountant and Francis Makai-Mateyo, a state security officer, Robinson Moonga, a police officer, Mahogany Air chief executive officer Jim Belemu.
They are charged with the Espionage, an offence which is contrary to section 3 (a) of the State Security Act Chapter 11l of 2012 of the Laws of Zambia.
Allegations are that on August 13, 2023 at Kenneth Kaunda international Airport, in the Chongwe, the 11 jointly and while acting together entered KKIA, a protected place.
They entered the premises for purposes prejudicial to the safety and interest of the Republic of Zambia.
When the case was called, principle State Advocate Gracilia Mulenga told the court with about 13 defence lawyers representing the accused, that the matter was coming up for explanation for the charge.
At this point, chief resident magistrate Davies Chibwili then explained the charge and informed the accused persons that the charge they are facing can only be tried in the High Court.
Ms Mulenga then informed the court that the DPP has issued a certificate to deny the accused persons bail pursuant to section 123(4) of the Criminal Procedure Code (CPC) and that “It is likely that the interest of the Republic of Zambia will be prejudiced if the accused herein are admitted to bail,” the DPPs certificate reads in part.
But the defence team objected, wondering how the DPP had jumped the gun by issuing a certificate denying their clients bail which they had not even applied for.
“We are surprised with the manoeuvre by the State to produce the certificate. The matter is triable in the High Court of Zambia.
“The role of the court was simply to explain the charge and refer it to another date. Even the consent of the DPP for this matter to be prosecuted is not on record. How do we rush to say that it will be prejudicial when consent is not before court?” Lubinda Linyama, a defence lawyer for the Egyptians argued.
Mr Linyama argued that “matters of bail are not for you [magistrate Chibwili], not today”.
Another defence lawyer Martha Mushipe, who adopted the other lawyer’s submission argued that the DPP’s application for bail deniable was irregular and procedurally improper.
“It’s frighteningly for the State to talk about denial of bail when there is no certificate hearing to admit the accrued to trial,” Ms Mushipe contended.
Another defence lawyer Abraham Mwansa urged the court not to admit the DPP’s certificate “for the simple reason that this court has no jurisdiction to try this matter”.
But the State insisted that the court admits the certificate because it has power to hear and grant bail to an accused person.
“This court would have had power to consider a bail application had it not been for the DPP evoking his powers under section 123(4) of the CPC,” Ms Mulenga submitted.
Another state advocate Steven Sumbukeni said it was in the interest of time that the State acted proactively by informing the court regards the position taken by the DPP regarding bail.
“We strongly submit that this certificate is properly before this court and there is no proper legal ground justifying it being expunged from the record,” Mr Sumbukeni said as defence insisted that the certificate be expunged.
Mr Linyama argued that it was “ridiculous” for the State to suggest that a court cannot question the powers of the DPP regards his decision to issue the certificate to deny his clients bail.
“It’s ridiculous to say that the court has no power to question a decision of a constitutional office bearer. How do you rush to issue a certificate against bail and not the certicate of committal. The defence is ready to start trial even tommorrow [today], we can apply for bail from there at the High Court,” the lawyer submitted.
(Mwebantu, Tuesday, 29th August, 2023)
