The People v Lt General Geojago Robert Chaswe Musengule and Anor (SPB/120/2004) [2009] ZMSUB 1 (2 March 2009)

• IN 11-IE SUBORDINATE COURT OF THE FIRST CLASS t SPB/120/2004 FOR THE LUSAKA DISTRICT HOLDEN AT LUSAKA BETWEEN: THE PEOPLE AND LT GENERAL GEOJAGO ROBERT CHASWE MUSENGULE AND AMON SIBANDE ''t .; For the Pooplo: Mr. Mutembo Nchito-MNB Legal Practitioners Mr. Malambo-ACC Public Prosecutor For the accused: Mr. Vincent Malambo (SC)- Malambo & Company JUDGMENT f ~ I ; I I The first accused heroin, Lt. General Geojago Robert Chaswe Musengule (A 1) stands charged with seven (7) counts of offences under the Anti-Corruption Commission Act No.42 of 1996 (hereinafter called the Act). He Is specifically charged under counts 1, 2, 3, 5, 7, 9, and 11. The first and second counts are that of !'buse of authority, of off_!fe contrary to section 37(2)(a) as read with section 41 of the Act. Under - count 1 it is alleged that on dates unknown but between 1st January, 2001 and 30th June, 2001 at Lusaka In the Lusaka District of the ··-·---· · - -- ··- -·- - - ----· - - Co~ 1. , Lusaka Province ·of the Republic of Zambia, being a public officer ,. namei,, Zambia Army Commander did abuse his authority of otflce by en~aging Base Chemicals Zambia Limited In which Amon Slbande is an executive officer to supply fuel with a total value of US$1, 278,511.46 to the Zambia Army in the Ministry of Defence ~ obtain property, wea~. advantage or profit directly or indirectly. Under count 2 it is alleged that Lt. General Geojago Robert Chaswe th Musengule on dates unknown but between 1st January, 2001 and 30 { c.,~ Q. June, 2001 at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia, being a public officer namely, Zambia Army Commander did abuse his authority of office by engaging Base Chemicals Zambia Limited in which Amon Sibande is an executive - officer to do repairs and construction works with a total value of US$1, 079, 888.44. Counts ~· 5, 7, 9 and 11 are ~II for corrupt practices by public officer contrary to section 29n ) as read with section 41 of the Anti Corru.e_tion Commission Act no.42 of 1996, albeit with different facts. Under count 3 it is alleged that Lt. General Geojago Robert Chaswe ~ <3 Musengule on dates unknown but between 1st January, 2001 and 30th June, 2001 at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia, being a public officer namely, Zambia Army Commander ~ t ly received two (2) garage doors valued at Two Thousand Five (sic) United States Dollars (US$2, 500.00) gratification from Amon Sibande, a chief executive officer of Base Chemicals Zambia Limited as an inducement or reward for himself for having engaged the said Base Chemicals Zambia Limited to supply fuel and do repairs and construction works to the Zambia Army, a matter or transaction which concerned the Zambia Army of the Minislty of Defence, a public body. Under count 5 it is alleged that Lt. ~ '5 Gene,al Geojago Robert Chaswe Musengule on dates unknown but between 1st January, 2001 and 30th June, 2001 at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia, being a public officer namely, Zambia Army Commander corruptly received one (1) milking tank valued at Two Thousand . Five (sicJUnited States Dollars (US$2, 500.00) gratification from Amon Sibande, a chief executive officer of Base Chemicals Zambia Limited as an inducement or reward for himself for having engaged the said Base Chemicals Zambia Limited to supply fuel and do repairs and construction works to the Zambia Army, a matter or transaction which concerned the Zambia Army of the Ministry of Defence, a public body. Under count 7 it is alleged that Lt. General Geojago Robert Chaswe Musengule on dates unknown but between 1st January, 2001 and 30th June, 2001 at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia, being a public officer namely, -Zambia Army Commander corruptly received three (3) steel structures valued at Thirteen Thousand Five Hundred United States Dollars (US$13, 500.00) gratification from Amon Sibande, a chief executive officer of Base Chemicals Zambia Limited as an Inducement or reward for himself for having engaged the said Base Chemicals Zambia Limited to supply fuel and do repairs and construction works to the Zambia Army, a matter or transaction which concerned the Zambia Army of the Ministry of Defence, a public body. Under count 9 it is alleged that Lt. General Geojago Robert Chaswe Musengule on dates unknown but between 1st January, 2001 c~~ q and 30th June, 2001 at Lusaka in the Lusaka District of the Lusaka ' Provin~e of the Republic of Zambia, being a public officer namely, zamb~ Army Commander corruptly received some building materials valued at Fourteen Million Five Hundred and Sixty One Thousand Kwacha (K14, 561,000.00) gratification fr~mon Siband~ a chief executive officer of Base Chemicals Zambia Limited as an r inducement or reward for himself for having engaged the said Base Chemicals Zambia Limited to supply fuel and do repairs and construction works to the Zambia Army, a matter or transaction which concerned the Zambia Army of the Ministry of Defence, a public body. Under count 11 it is alleged that Lt. General Geojago Robert ~ l \ Chaswe Musengule on dates unknown but between 1st January, 2001 and 30th June, 2001 at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia, being a public officer namely, Zambia Army Commander corruptly received milking equipment comprising two (2) mini-milkers, two (2) header and heat sealer, two - (2) pressuri;zers, two (2) chillers, 30, 000 1 liter sachets printed 30 ½ liter sachets printed (sic) all valued at Twenty Three Thousand, Eight Hundred and Seventy Five United States Dollars (US$23, 875.00) gratification from Amon Sibande, a chief executive officer of Base Chemicals Zambia Limited as an inducement or reward for himself for having engaged the said Base Chemicals Zambia Limited to supply fuel and do repairs and construction works to the Zambia Army, a matter or transaction which concerned the Zambia Army of the Ministry of Defence, a public body. When called upon to plead to the charges, the first accused denied each offence alleged against him in the seven (7) counts and the court recorded pleas of not guilty for all seven (7) counts. I I I I I I I I I I I I I I I I I I I I I I I I I I I I • The se~nd accused herein, Amon Sibande stands charged with five (5) cotnts of offences under the Anti-Corruption Commission Act no.42 of 1996. He is specifically charged under counts 4, 6, 8, 10 and 12. I must point out here that the statements of offence for counts 4,6, 8, 1 O and 12 were amended upon an application by the state that the following be added 'section 29(2) no.42 of 1996' instead of 'section 29(1) no.42 of 1996' as it read previously. All the counts are for corrupt practices with public officer contrary to r-- section 29(2) of Act no. 42 of 1996 as read with section 41 of the Act on different facts. Under count 4 it is alleged that Amon Sibande on &~ q dates unknown but between 1st January, 2001 and 30th June, 2001 at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia, corruptly gave two (2) garage doors valued at Two '--""" Thousand Five (sic) United States Dollars - (US$2, 500.00) gratification to Lt. General Geojago Robert Chaswe Musengule, a public-officer namely Zambia Army Commander as an inducement or reward for himself for having engaged the said Base Chemicals Zambia Limited to supply fuel and do repairs and construction works to the Zambia Army, a matter or transaction which concerned the Zambia Army of the Ministry of Defence, a public body. Under count 6 it is alleged that Amon Sibande on dates unknown but between 1st January, 2001 and 30th June, 2001 at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia, .. --- corruptly gave one (1) milking tank valued at Two Thousand Five (sic) United States Dollars (US$2, 500.00) gratification to Lt. General Geojago Robert Chaswe Musengule, a public officer namely Zambia Army Commander as an inducement or reward for himself for having engagi d the said Base Chemicals Zambia Limited to supply fuel and do rePj)irs and construction works to the Zambia Army, a matter or transaction which concerned the Zambia Army of the Ministry of Defence, a public body. _!klder ~un!_._8 it is alleged that Amon C-<1\M..-1 Sibande on dates unknown but between 1st January, 2001 and 30 th 'l June, 2001 at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia, corruptly gave three (3) steel structures valued at Thirteen Thousand Five Hundred United States Dollars (US$13, 500.00) gratification to Lt. General Geojago Robert Chaswe Musengule, a public officer namely Zambia Army Commander as an inducement or reward for himself for having engaged the said Base Chemicals Zambia Limited to supply fuel and do repairs and construction works to the Zambia Army, a matter or transaction which concerned the Zambia Army of the Ministry of Defence, a public body. Under count 10 it is alleged that Amon Sibande on dates ~ /6 unknown but between 15 January, 2001 and 30th June, 2001 at Lusaka7n the Lusaka District of the Lusaka Province of the Republic of Zambia, corruptly gave some building materials valued at Fourteen Million Five Hundred and Sixty One Thousand Kwacha (K14, 561, 000.00) gratification to Lt. General Geojago Robert Chaswe Musengule, a public officer namely Zambia Army Commander as an Inducement or reward for himself for having engaged the said Base / . Chemicals Zambia Limited to supply fuel and do repairs and construction works to the Zambia Army, a matter or transaction which concerned the Zambia Army of the Ministry of Defence, a public body. ~nder count J2... J!..2.: alleged that Amon Sibande on dates C~ 11_ unknown but between 1st January, 2001 and 30th June, 2001 at Lusakct- in the Lusaka District of the Lusaka Province of the Republic of Zaro,bia, corruptly (sic) milking equipment comprising two (2) mini milkers, two (2) header and heat sealer, two (2) pressurizers, two (2) chillers, 30, 000 1 liter sachets printed 30 ½ liter sachets printed (sic) all valued at Twenty Three Thousand, Eight Hundred and Seventy Five United States Dollars (US$23, 875.00) gratification to Lt. General Geojago Robert Chaswe Musengule, a public officer namely Zambia Army Commander as an inducement or reward for himself for having engaged the said Base Chemicals Zambia Limited to supply fuel and do repairs and construction works to the Zambia Army, a matter or transaction which concerned the Zambia Army of the Ministry of Defence, a public body. The second accused denied all the charges under all five counts and the court recorded pleas of not guilty. --- 1 warn myself at the onset that the burden is on the Prosecution to prove the guilt of both accused persons in all the counts beyond all - c(. M,,/'.\-- ~-.s ~ reasonable doubt. There is no onus on either A 1 or A2 to establish their Innocence respectively. If after all the evidence there remains a doubt in my mind as to the guilt of the accused persons on any of the offences, I shall resolve that doubt in their favor. I also draw my mind to the presumptions of corrupt intention as stipulated under section 49 (2) Act no.42 of 1996 on which the state made a submission. There the Act requires a satisfactory explanation from a person charged for an offence under Part IV of the Act where it is proved the he/she solicited, accepted or obtained or i agreed1o accept or attempted to receive or obtain any payment in the absen~ of such an explanation, the presumptio~ fs thifthe said was 'solicited, accepted or obtained or agreed to be accepted, received or obtained corruptly'. The defence pointed out that Section 49(3) defines this payment when it provides that "for the purposes of subsection (2) "payment" means any corrupt payment, whether in cash or in kind~ They have submitted that the prosecution must lead evidence that the payment is corrupt before requiring an accused to give the satisfactory explanation espoused in sub-section 2 . I take note that subsection (2) states that , ; "(w)here, in any proceedings for an offence under Part IV, it is proved that any person solicited, accepted or obtained or agreed to accept or attempted to receive or obtain any payment in any of the circumstances set out in the relevant section under which he is charged, then such payment shall, in the absence of a satisfactory explanation be presumed to have been solicited:, accepted or obtained or agreed to be accepted, received or obtained corruptly". I am of the view that the prosecution indeed should show that the payment is corrupt before an accused is called upon to give an explanation. This issue was taken care of at the time when the accused were found with a case to answer and put on their defence. The court would not have put them on their defence if it was not satisfied that they had to give a satisfactory explanation for the evidence adduced against them including the allegation that "corrupt payments" were made. The court does not expect the accused to provide an explanation which is beyond all reasonable doubt, but a satisfac1ory one as the Act provides. ' If the law required an explanltion beyond all reasonable doubt, it would have provided as such. The defence further submit that subsection (2) does not apply to P<2. as the wording indicates that the presumption of corruption or the shift in the burden of proof is only with regard to the person accused of receiving and not the one accused of giving. I am of the view that where the prosecution lead evidence showing that corrupt payment was made and the one accused of receiving provides an explanation, iii it follows that the one who is accused of giving the corrupt payment should give an explanation in order to adequately defend h/self. It is -a principle of fair justice that one who is accused should be given the ----- ---- -------- - -----~- chance to provide an explanation or defence before the court makes ~ec1sion. Though, of course an accused is at libe to remain silent. ----- In order for the prosecution to prove the guilt of the first accused they must establish each and every ingredient of the offences charged. All the offences alleged against both accused are read in with section 41 which Is the general penalty section of the Act and provides that: "41. Any person who is guilty of an offence under this Part shall be liable- J exceeding twelve years (a) upon conviction to imprisonment for a term not (b) upon a second or subsequent conviction, to imprisonment for a term of not Jess than frve years but not exceeding twelve years; and (c) In addition to any other pona/ly Imposed undor this Act, to forfelturo to tho State of any pecuniary rosourco, property, advantago, profit or gratification received In the commission of an offence under this Act". The first and second counts of abuse of authority of office are framed under section 37(2)(a) which provides that: "(2) Any public officer who, after due Investigation carried out under subsection (1 ), Is found to- (e) have misused or abused his office, position, or authority to obtain advantage, wealth, property or profit directly or Indirectly; (b) .. . (c) .. . (d) ... Shall unless he gives a reasonable exp! a nation be - - charged with .. . having misused or abused his office ... and shall be guilty of an offence". In order to prove the offences in counts 1 and 2 the prosecution must . establlsh that the first accused was at the time in question; (1 )a public officer ~ (2)who misused or abused his office, position, or authority ~ (3)thereby ~btaining advantage, wealth, property or profit direct!} •. ------- ---. .... ':, ., . ,. or indirectly_ (4 )following which he has failed to give a reasonable explanation These lire the ingredients of the offences that the prosecution must establijh in order to prove the guilt of the first accused with respect to counts 1 and 2. Some of the words used in framing the above offence need to be defined. The term 'public officer' is defined under section 3 of the Act as "any person who is a member of, or holds office in, or is employed in the service of, a public body, whether such membership, office or employment is permanent or temporary, whole or in part-time, paid or unpaid ... This same section of the Act goes further to define 'public body' as "the Government, any Ministry or department of the Government, a local authority, parastatal board, council, authority, commission or other body appointed by the Government, or established by or under any written law." There is no doubt in my mind that the first accused who served as Army Commander in the Zambia Army was a public officer and it is not in dispute that the Zambia Army which is established under the Laws ofZambia is a public body. The words 'abuse' or 'misuse' are to be understood in their ordinary -meaning. ·--------- As regards counts 3, 5, 7, 9, and 11, the first accused is charged under section 29(1) and section 41 of the Act. The former provides that: .,./ "29(1) Any public officer who, by himself, or by or in conjunction with any other person, corruptly solicits accepts or obtains, or agrees to accept or attempts to receive or obtain, from any person for himself or for any other person, any gratification as an inducement or : t reward for doing or for bearing to do, or for having done or forborne to do, anything in relation to any matter or transaction, actual or proposed, with which any public body is or may be concerned, shall be guilty of an offence". To prove the offences under these five counts the prosecution must establish that at the time in question; (1 )the accused was a public officer ----- --- ----- (2)who either by himself, or by or in conjunction with any other person {3)corruptly solicited, accepted or obtained or agreed to accept or attempts to receive or obtain (4 )from any person for himself or for any other person (5)any gratification (6)as an inducement or reward for doing or forbearing to do, or for having done or forborne to do anything in relation to any matter or transaction actual or proposed (7)with which any public body is or may be concerned. The above are the ingredients of the offences in counts 3, 5, 7, 9, and 11 that the prosecution must establish in order to prove the guilt of the first accused. The definitions of some terms used to frame this offence have earlier been provided . The term 'corrupt' is defined in section 3 as "the ../ soliciting, accepting, obtaining, giving, promising or offering, of a gratification by way of a bribe or other personal temptation of inducement, or the misuse or abuse of a public office for private advantage or beneftf, and "corruptly" shall be construed accordingly". 'Gratifff:Jtion • is defined as "any corrupt payment, whether In cash or in kin<t any rebate, bonus, deduction or material gain, benefit, amenity, facility, concession or favour of any description and any loan, fee, reward, advantage or gift, or any other thing obtained as a result of the corrupt misuse or abuse of public funds or property, other than a casual gifr. With regard to the second accused who stands charged under counts 4, 6, 8, 10, and 12, the prosecution must establish each and every ingredient of the offences charged. All the counts charge the second accused with corrupt practices with public officer (arising from different facts) contrary to section 29(2) and section 41 of the Act. The former section provides that: "29(2) Any person who by himself, or by or in conjunction with any other person, corruptly gives, promises or offers any gratification to any public officer, whether for the benefit of that public officer or of any other public officer, as an inducement or reward for doing or forbearing to do, anything in relation to any matter or transaction, actual or proposed, with which any public body is or may be concerned, shall be guilty of an offence." To prove this offence the prosecution must prove each and every Ingredient and as such must establish that: (l)A2 by himself or by or in conjunction with any other person (2) Corruptly _gave, promised or offered (3)Any gratificatioo to --(4)Any QUblic officer-A1 in this case -(5) Whether for the benefit of A 1 or any other public officer (6)Ar an inducement or reward for doing or forbearing to do, aiythlng in relation to any matter or transaction, actual or proposed (7) With which any public body is or may be concerned. All the terms in this offence have already been defined. The prosecution called 15 witnesses and at the close of their case both accused were found with a case to answer on each and every offence they respectively stand charged with. Both A1 and A2 gave sworn statements in their defence. Four other witnesses testified for the defence, bringing the total number of defence witnesses to six including the two accused. The defence closed their case on 13th November 2008 and the matter was adjourned to 2nd March 2009 for j udgment. At the close of the whole matter both the prosecution and defence tendered before court written submissions for which the court is highly indebted. I will now consider the evidence tendered before court and thereafter make my findings. Count1 PW5, Lt. Col Hanzuki, who told the court at the time of his testimony that his substantive position was that of deputy director of finance in charge of payments and the custodian of financial records said his office was also responsible for receiving and making payments on behalf of the Army. His testimony was that he made available to the Task Force documents relating to the payments made to Base Chemioels and that he found the relevant payment vouchers, letters of authority from Command and Local Purchase Orders(LPOs) attached to the payment vouchers. " ' PW12 Col. Milton Mwambo Njolomba, said he knew General Musengule as the former Commander of the Zambia Army and identified him as A 1 in the accused's dock. He said he was the military assistant when A 1 was the commander and that he used to write loose minutes and that in relation to this ,- case he wrote loose minutes (exhibits P5D, P6B, P7D, PBB, P9D, P128 and P158) on behalf and on authority of A 1 to order the _,../ IJ Director of Finance to pay funds and that one of the companies paid was Base Chemicals. According to Col. D. J Lwendo, Director of transport for 7 years at the time of his testimony in the Army, he procured oil from the British Petroleum Company (BP) within Zambia as well as Caltex and Total and that he .found this arrangement when he began the duties of Director of Transport. He said the arrangement was later changed upon order of the then Army Commander Lt. General Musengule who he identified in court as the first accused {A 1 ). He said A 1 gave him an order to begin procuring POLs from Base Chemicals in Lusaka ~~:;:::a-=-t .,_.h __ e-=b:...::e:...gi..::a::...:n~p:..:.r.:.o.=..cu::.:r...:.:in~g~o:.:..il .:..:fr.:..o.:..:m.:...-=B.:a=-se:....:C:..:.h:::e~m:..:.:i.:ca:.:l.:s..:.w.:.:h..::e::.:r.:::e_.'..h~e:._d~e~a~lt with one Mr. Sibande who he identified as the second accused (A2) before court. He said the army paid for the said POLs. During cross-examination by defence counsel, he said the order ~1 to~cure from Base Chemicals was verba~d that the DirectJ of Finance who makes payments can also provide an order. He saijt although he was ordered to stop procuring from BP, Caltex and Total, there was fuel at BP and Total. He told the court that after the verbal order from A 1 he prepared a Local Purchase Order (LPO) based on the quotation from Base Chemicals on a date he could not recall. He said he procured the first truck in 2001 in a month he could not recall. He told the court that he was aware that he was supplied fuel by the Zambia Air Force and that the Air Force did not tell him where the oil had come from but that it was procured from the Air Force after a verbal order was given by A 1 in May 2001 . He said as -.--:-----~--=--~---c-- --- the operational person he did not contact anyone from the Air Force .. , .. - and that he only received a quotation from the Zambia Air Force . PW1 said he then prepared an LPO in which he reflected that Zambia Army was buying fuel from Zambia Air Force worth K350, 000,000.00 but that he did not know the quantity. PW1 said he did not know the price difference between BP and Base Chemicals because the latter did not indicate the price per cubic litres but that the prices were relatively the same. He said he was aware that there was a fire at lndeni but he could not recall the exact year end that there were difficulties as fuel was flowing from South Africa. He said fuel was delayed and the Operation Emergency needed fuel earlier than it had arrived; that they needed fuel at a time when they had none. r~ ___ id_ th"'""'e=ir_o.:..!p:....:e:....:r-=-at.:.:..io~n..:..::a::..:...l ..:...:n:...:.e..:.ed.::..s:......:..:w~e..:....re:.....:..:n.:....ot~b::..:e:.:i.:..:.ng~ m:..:..:e:.::t...:b~y~B=-P at the time and that he did not report this problem as fuel was in short supply throughout the country at that time. He said they waited until BP supplied them and that they began to encounter difficulties in 2001. t , I ,' I issue is basically that the Army was ir ,aterial time in order to guarantee see1,/ And that the Army could not obtain fu el fro1o . :h as BP due to its indebtedness. In cross Army tender committee did not sit to discuss ions in this matter. : are that: jid procure fuel from Base Chemicals (Z) Ltd =rom ZAF I was the Army Commander in the Zambia y and A 1 was therefore a public officer from 7 to 24th January 2002 when he retired as (per PW?) hareholder in Base Chemicals (Z) Ltd as per 1rt shows that payments were made directly .td by the Army for the procurement of fuel 3(A-C), P?(A-O), P9(A-D), P1 0(A-8), P11 (A P14(A-F), P15(A-E). There is also evidence n between A 1 and A2 concerning the P5(C)). The authorization for the release of ; are contained in loose minutes originating l(per P5(D)). i1as purchased by the Army through ZAF, source of the fuel was Base Chemicals (per .. -w as obtained --. P15B). As regards the manner in which the Army began to procure · el from Base Chemicals !here is no evidence be ore court showing fu uotations were received from other suppliers or that authorit~ th at q t from Zambia National Tender Board (ZNTB} to p urchase the fuel from that source. Indeed even A 1 in his defence tated that the Army tender committee did not sit to discuss the s p rojects and transactions in this matter. The state of affairs in the co untry at the time, i.e. shortage of fuel and deployment of officers at b orders is not justification for disregarding legal requirements in ~ a warding contracts in public bodies. The Zambia National Tender B oard Act, CAP 394 of the Laws of Zambia clearly provides rules that ublic bodies should follow when procuring materials or services. p T he defence did not show that during this time the ZNTB waived or V aried the rules so as to give leeway to the Army in the manner of procuring fuel. \ \ , (_: ' Havl~ considered the evidence in totality I am satisfied that the . prosecution have established the guilt of A1 on this count beyond all reasonable doubt. Count 2 The evidence of PW2, Brigadier General Harris Simulemba was that he is a Quarter Master General and h~ has held the position since 2001 . He told the court that he recalls receiving instructions from the then Army Commander Lt. General Musengule who he identified as the first accused (A 1) before court about Kaoma Barracks where they were to construct pre-fabricated houses-5 units for First Warrant Officers; 5 units for Second Warrant Officers and staff sergeants; and ♦ 20 x 2 units for corporals. He s~d A 1 gave instructions that the task of building be undertaken by Base Chemicals and that prior to this he had not worked with that company. He told the court that he instructed the Director Engineering to construct drawings which were given to Base Chemicals and a contract was signed between the Zambia Army and Base Chemicals. PW2 said he signed the contract on behalf of the Zambia Army and his assistant Quarter Master General in charge of projects, one Lt. Col. Kwibisa was a witness. He told the court that Jl-:.:::e'--'s ..... ig~n'-'-'e=d=--=.:.th.:..::e:....c:::::o:.:.n.:..:tr:..:a:.::c::...t -=-o:..:.n ....:..:in~s::t:..:ru:..:c:.::.ti=-o:..::ns:.....:...:fr-=o.:....:.m~A~1 and that its value was US$1,079,888.44. PW2 said although the contract was for prefabricated houses, conventional buildings were constructed instead in Kaoma and that he as Quarter Master General did not tell Base Chemicals to build conventional buildings. He said Base Chemicals was informed that the Army was not aware of an arrangement requesting them to build conventional structures, that in response; the company said it was authorized by A 1 to build conventional structures after soil samples had been carried out indicating that the soil could not support pre-fabricated structures. ...... It was PW2's testimony that in 2002 he received reports from the Kaoma project site that the structures being built were of sub standard quality. He said the allegation was that the blocks which were being made and used to erect the structures were made out of silt and were breaking easily. ' " Durin!i cross-examination PW2 said the instruction by A 1 was given prior to October 2001 on a date he could not recall. He said the Army received quotations for structures in October and that it was the first time that Base Chemicals was to build Zambia Army structures. He said he later learned through correspondence sometime in October 2001 from Base Chemicals that the company that was to build the structures was Mazzonites, a subsidiary of Base Chemicals. He said he did not know how many shares Base Chemicals had in Mazzonites. PW2 told the court that the Army had dealt with Mazzonites in 2001 prior to this contract in a project for purposes of .../ sorting out water reticulation problems at Kalewa Barracks in Ndola which had been prevalent for some time. He told the court that the second time the Army dealt with Mazzonites was for a job at ZCCF in Kitwe for renovations to the hall and the officers' Mess after May 2001 and that he was Quarter Master General then. He told the court that the Army was satisfied with the work done at Kalewa Barracks and he was happy because the problem there had been outstanding for a long time and that he proceeded to give a second contract to Mazzonites in Kitwe as per instructions from the Army Commander. PW2 said it was wrong to state that the Kaoma contract ( exhibit P1) was offered to Mazzonites (Z) Ltd and that they in tum invited Base Chemicals to participate. ·-, He told the court that the Army has correspondence on file from Base Chemicals which introduces Mr. Simasiku of Mazzonites and that that was the reason he signed the contract with Mazzonites (Z) Ltd. He l sai<f at the time he signed the contract on 28th January 2002 A1 was th~Army Commander. He said the quotation of 1 ?'h October 2001, for the supply of pre-fabricated structures and construction works was faxed by A2 and that correspondence showed his name as the author. He said the plans for the structures were given to A2. In terms of the soil issue, PW2's testimony was that he was not aware of any discussions that necessitated the sampling of soil in Kaoma. He said most structures at Kaoma Barracks have cracks, some very big and that he communicated with Mr. Simasiku (DW2- Managing Director of Mazzonites) in relation to structures in Kaoma. He told the court that Ministry of Works and Supply were asked to ...___,. inspect the structures by the Army and that they submitted a report after the inspection. He said the report was based on the assessment made by a team of specialists from Ministry of Works and Supply He told the court that Ministry of Works and supply dispelled that worf<s were made out of silt. In re-examination PW2 said the parties to the contract (P1) were Base Chemicals (Z) Ltd and Mazzonites (Z) Ltd, who were included thereto on a later date and that the commencement date of the said contract was 8th November 2001 . He said this was so because immediately Base Chemicals gave the Army the quotation, A 1 gave instructions for the payment of US$500, 000.00 to Base Chemicals (Z) Ltd towards the project. He said by the time of A 1 's resignation, he had already disbursed the funds and works were on-going. He said the general workmanship on the Kaoma project was poor and that "the Ministry of Works and Supply had recommended that the structures be destroyed and re-built. He found It Ironic that the buildings with cracks are conventional structures and that yet the ., • company stated that soil specialists' advice was that changes be made from pre-fabricated to conventional structures. PW3 was Charles Geoffrey Phirl, an architect working at Buildings Department in the Ministry of Works and Supply who the court ruled to be an expert witness based on his experience and qualifications. His testimony was that In July 2002 he recalls being instructed by his director upon request from the Army to be part of a team comprising of an architect, quantity surveyor, structural engineer, electrical engineer, and water and drainage engineer to travel to Kaoma and inspect a housing project. He said the inspection was for purposes of providing a technical report for the Army. PW3 said he was the architect delegated to lead the team and that the inspections done revealed that some of the blocks and concrete used to put up the buildings were of poor quality. PW3 said after the inspections the team came to the conclusion that the workmanship was below the normal government standards. He further told the court that his team made the recommendation that tests using a Schimdt hammer and concrete core be conducted by either the Roads Department, Works and Supply, Wade Adams or the University of Zambia-in order to ascertain the strength of the materials used and that of individual buildings. He said the Army is part of government in relation to his work and that exhibit P1 does not conform to government standards. With i egard to this count A 1 's defence Is that he did not negotiate contints of exhibit P1 the contract between The Army on one part and Mazzonltes and Base Chemicals (Z) Ltd on the other part. He said he did not sit with anyone from Base Chemicals (Z) LW lo award P1 and according to him the Quarter Master General dealt with P1 after he (A 1) had approved the recommendation from Q-Branch that Mazzonites Ltd would be an ideal company lo do the works. A 1 told the court that P1 was signed on 28th January 2002 by Brigadier General Phiri who was acting as Quarter Master General then and he (A1) retired on 24th January 2002. He said when he saw the deplorable state of accommodation at Kaoma barracks (partly seen by the court in exhibits D1 to D32) he decided that pre-fabricated buildings would be the quickest solution to the problem. He said he gave the job to Mazzonites Ltd, a company he knew had done well on previous Army projects on the Copperbelt and one that had been contracted by Ministry of Works to do jobs for the Army and that he came to know much later that Base Chemicals was involved with Mazzonites Ltd and that he had nothing to do with their arrangement. In cross-examination he said he authorized payment to Base Chemicals (Z) Ltd ( per P8B)and not Mazzonites for the Kaoma ~ project in 2001 before the contract (P1) was signed and that it was normal to pay a contractor before a contract for a building is executed. He said there are records in the Army showing that Mazzonites introduced Base Chemicals to him and other Army officials and that the arrangement between the two companies was expl4)ned and that it was on that basis that he instructed that Base Chej1icals be paid. He said no pre-fabricated structures were constructed at Kaoma barracks but that he could not go into details of change in quotation from pre-fabricated structures to conventional buildings. He told the court that he had nothing to do with the arrangement between Mazzonites and Base Chemicals and that he selected Mazzonites for the Kaoma project on recommendation from his officers. A2. in his defence said A 1 did not engage him or Base Chemicals to do works in his personal capacity but that the Army was already working with Mazzonites Ltd. He said Mr. Simasiku of Mazzonites asked Base Chemicals to assist financially through a credit line in order for it to source materials for the Kaoma Barracks project (per 046). He told the court that in order to secure their funds Base Chemicals put up a condition that they be party to the contract (P1 ). He ffien said the specifications from pre-fabricated structures to conventional buildings were changed due to soil conditions in Kaoma. DW2 was Victor Simasiku, Managing Director of Mazzonites. He told the court that his company was between August/September 2001 awarded a bid for the construction of houses in Kaoma through a bid from the Army Quarter Master General. He said Mazzonites then brought in Base Chemicals on board as an equity partner an that the latter advanced his company money so that they could move on site in Kaoma in October 2001. According to him the condition from Base Chemicals is that all payments from Zambia Army should go through them and not Mazzonites. DW2 said prior to the contract p 1 there .. ' was another signed between Zambia Army and Mazzonites ltd and it was withdrawn and cancelled. In cross-examination DW2 said the equity partner arrangement between the two companies was not in written form neither was a specific figure agreed on that Base Chemicals would advance to Mazzonites. He said he could not recall how much Base Chemicals actually put in. With regard to the original contract he mentioned as having been in existence before P1, he said he did not keep a copy of it. When his previous statement was put to him, DW2 denied having said that Base Chemicals was given instructions for the Kaoma project at the time he gave a statement to the Task Force. My findings on this count are as follows: Facts not in dispute are: • There is a contract for the construction of Army personnel quarters in Kaoma Barracks at the value of USD$1, 079, -888.44 (per P1) • initially the contract was for prefabricated housing units but later conventional structures were built Exhibit P76 contains receipt No.301 indicating that USD$500,000.00 was received from Zambia Army on 20th October 2001 and P8A, a ZRA payment voucher dated 19th October 2001 indicates that this amount was indeed paid to the company. It should be noted that according to this payment voucher the money was 'part payment to cater for prefab housing units ... for Kaoma (Luena Bks)' but later conventional structures were built. Further, P8A contains yet another LPO dated 18th October 2001 in the amount of USO$ 1, 079,888.44 • notec!' as being payment to Base Chemicals for 'housing prefabs for Kao"'a ... 'Contrary to the testimonies from the accused persons and DW2, no evidence was produced to support the claim that the soil conditions in Kaoma necessitated for the change from prefabricated housing units to conventional structures. Regardless. the cost of the project remained the same and this raises suspicions. The argument by A2 that the money for the prefabs was reclaimed is not convincing. Contrary to claims by the defence that P1 was awarded to Mazzonites the evidence clearly indicates that the contract was awarded to Base Chemicals (Z) Ltd. It is not sufficient for the defence to merely state that there was an equity partnership between Base Chemicals and Mazzonites without providing evidence of it to the Army at the time of the project or to the court during these proceedings. Having considered the demeanor of DW2, the Managi,:ig Director of Mazzonites Ltd, I find that I am in doubt of the ver!_city of his testimony. It Is noted that the state of housing for Army officers in Kaoma and perhaps elsewhere is deplorable for the most part, nonetheless this is not Justification for awarding a building contract without following the laid down tender procedures. Upon consideration of the prosecution's evidence and having not been provided with a reasonable explanation from the defence I am satisfied that the charge under this count has been established against A 1 beyond all reasonable doubt. Counts 3 &4 I - • In his "cross-examination A 1 conceded that he had dealings with a comp3ny called Sazaam which at one time he had instructed the Finance Department in the Army to pay (per P8B). Although he had earlier said he had no knowledge of such a company he at this point claimed that his milking equipment was brought into the country through Sazaam. \ PW15, Friday Tembo, a police officer with the Task Force and the \ investigating and dealing officer in this matter, said the allegation was \ that General Musengule gave a contract to a company known as Base Chemicals (Z) Ltd which is owned by Mr. Amon Sibande. That the said contract was for the supply of fuels and lubricants as well as for construction works in Kaoma Luena barracks. He said it was alleged that out of this contract Lt. General Musengule corruptly received two garage doors acquired by Mr. Amon Sibande (his co accused) from Mr. Kirk Wentworth of Greenwood Enterprises (per -P74-4th page). According to him they were brought into Zambia and installed at General Musengule's property No.5644 Lufubu Road in Kalundu, Lusaka by Kirk Wentworth. He said he visited the said property and saw a garage with doors. He said the document that talks about garage doors is dated 13th November 2001, addressed to the Zambia / Army Commander and that it was from Kirk Wentworth who signed it on behalf of Greenwood Enterprises. That the following were itemized on the document -4 moulds -1 electric motor ••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• • • -1 co~pactor And flat the total cost is indicated as R9, 500.00 for all the items. The state applied for a scene visit at A 1 's property in Lufubu Rd Kalundu, Lusaka and while at the scene PW15 showed the court the 2 garage doors (P77) he said he saw during his investigations. When cross-examined at the scene he said he never investigated the other structures apart from the garage doors. In cross-examination PW15 said he did not suggest that the value of the garage doors was US$2, 500.00 and that although he charged the two accused on the issue of the garage doors he could not recall the value of the said doors. That the invoice in respect of the garage doors lists items whose value is R9, 500.00 and that the charge sheet indicates that the garage doors are valued at US$2, 500.00. He told the court that he did not pay attention to the dollar equivalent of the Invoice amount. He said no other witness had dealt with the value of th the garage doors. He said documents relating to the doors (P74; 4 -- page) which were collected from Kirk Wentworth in South Africa are dated 14th December 2001 and addressed to the Army Commander. He said he did not come across the compactor, electric motor and the moulds indicated on the invoice He said his evidence was that the said garage doors were bought by A2. and that he was not aware of any other witness who had spoken about this issue. A 1 's evidence on this issue is that he asked Kirk Wentworth to source him some security gates and garage doors and that in this regard a quotation was given to him by Wentworth towards the end of ... .. 2001 f~r milking equipment, security gates and garage doors. He said hi paid Wentworth US$10, 700.00 whose breakdown was US$6, 500.00 for the 6 point milking machine; US$3, 600.00 for the security gates and US$600.00 for transport in January 2002 and that Wentworth gave him a receipt for this payment dated 10 th January 2002 (per 033). He said the total amount he paid translated into R147, 000.00 plus R65, 000.00 leaving a balance of R82, 000.00 (per D34 ). According to him after payment the 6 point milking machine was delivered to his Makeni farm while 3 steel gates and 2 garage doors were delivered to his home in Kalundu namely house no.5644 Lufubu Road. A2. denied having given A 1 two garage doors and said the garage doors imported by one of his companies from South Africa were at Base Chemicals warehouse. He led the court to the said warehouse and j_dentified equipment stating that it contained garage doors, moulds and mortars. According to him the two garage doors listed on the Invoice contained in P74; 4th page were part of those he identified at the warehouse. He said the invoice was addressed to A 1 because most of the items on it in Mr. Wentworth's vannette were meant for the Luena barracks project in Kaoma. In cross-examination, A2 said the garage doors at the warehouse were not those brought in by Kirk Wentworth. My findings are that: Relying on P7 4-p.4 I am satisfied that A2. did buy garage doors for A 1. I am not convinced that exhibits D49 shown to the court by A2 nullify the allegation of the garage doors in this count and as such 1 - am co~vinced that those doors included in 049 are in no way related to PT~. Had A 1 bought equipment from Wentworth in 2002 as he indicated, it would have been prudent for him to have shown relevant documents such as 033 to the officers during the time he was questioned so as to remove all suspicions and to defend himself against the allegations. I find that the defence have confused matters for themselves because on one hand they tried to tell the court that A 1 bought garage doors from Wentworth and on the other that A2 bought equipment (inclusive of the garage doors) for the Kaoma project through Wentworth invoiced to A 1 Further. Which position would the defence have the court believe. I find it unacceptable to invoice material meant for public works for a public institution to a private individual regardless of the explanation offered. Having said all that I am however not satisfied that the cost of these doors was as stated in the count. This notwithstanding, the charges are proved against the accused persons as they failed to give reasonable explanations for these state of affairs and I am satisfied that the prosecution proved their case beyond all reasonable doubt. Counts 5 & 6: Counts 11 & 12 The state produced P7 4 as evidence of A:2.. giving A 1 milking equipment. P74; page 2 contains copy of an inward payment flows report from Nedbank stating that Greenwood Enterprises of 1036 Terrace Rd, Sebenza in South Africa had received US $18, 875.00 from Base Chemicals of P. O Box 37326, Lusaka, Zambia. On this document is a copy of the cheque indicating the sum of US$18, 875.0; being paid to Greenwood Enterprises by Base Chemicals. In the ~me exhibit P74 on page 11 is a Proforma Invoice from Greenwood Enterprises to the Army commander, Zambia Army in Lusaka dated 7th May 2001 for milking equipment in the amount of US$18, 875.00. Mr. Mbewe Mbewe, PW10 told the court that he works for Barclays Bank Pie as a corporate manager's assistant and that he had been requested to submit documents submitted to the bank by a client, Base Chemicals. He said he provided a letter of instruction (P22) to issue a bank draft for US$18, 875.00 payable to Greenwood Marketing for purchase of milking machines dated 18th May 2001 by order of Base Chemicals and signed by the Chief Executive Officer, one A. Sibande · (A2 herein). In addition page 7 of P64 is a Bill of Entry/Export from ZRA for 26th June 2001 indicating that Greenwood Enterprises was exporting a milking machine to the Army --- Commander, Zambian Army in Lusaka Zambia valued at R20, 000. According to the state, this document was part of those seized from Base Chemicals (Z) ltd. This evidence was supplemented by the testimonies of PW13, a senior investigations officer from ACC attached to the Task Force on Corruption one Vincent Machila and PW15 Friday Tembo, a police officer with the Task Force and the investigating and dealing officer in this matter. The two officers said they carried out investigations jointly in this matter and that in 2002 while they were working with the Task Force on Corruption they were assigned cases of allegations of corruption and abuse of authority against the former Zambia Air Force Commander and Army Commander with regard to the i institutons business dealings with a company called Base Chemicals Zam~ Ltd. PW15, said he and PW13 went to Greenwood Enterprises which is a company owned by Mr. Kirk Wentworth where they collected documents pertaining to the acquisition of milking machine such as an invoice dated 7th May 2001 addressed to the Zambia Army Commander. He told the court that the total purchase price for the milking equipment and sachets came to US$23, 875.00. He said another document from Nedbank shows the amount of US$18, 875.00 and that a copy of a bank draft issued from Barclays bank Holiday Inn-prestige dated 18th May 2001 shows that the amount was paid to the owner of Greenwood Enterprises. He said the ordering client was Base Chemicals. He referred the court to a document dated 7th May 2001 which he said was a Proforma invoice no.1727 signed on behalf of Greenwood Enterprises and addressed to the Zambia Army Commander and pointed out that the total value for t~ goods on the invoice is US$23, 875.00. According to him a deposit of US$5, 000.00 was paid leaving a balance of US$18, 875.00 and that the said balance was paid for by Base Chemicals. He said he managed to get some ZRA documents addressed to the Zambia Army Commander showing that the said machines entered Zambia. In addition that having gone through documents collected from Base Chemicals it was ascertained that the milking equipment was paid from a Base Chemicals account for US$18, 875.00. Both officers pointed out that Base Chemicals imported inter a/ia steel structures, dairy machinery, milking machinery and their accessories such as milk sachets, garage doors. It was noted that the consignee for the milking machinery was the Army commander. That the ~ compl1mentary slip titled "cash accounting Army" (P38) discusses businlss transactions in terms of receipt of petroleum products from Base Chemicals to Zambia Army and that then on the expenses it discusses items such as milking equipment, 2 chillers, 2 fillers, 2 milkers, 2 pasterisers, duty and VAT, plus structures, milking tanks and transport and against these items there are amounts or figures. It was pointed out the name of Lt. General Musengule is then indicated on the said slip with cash available against but with no indication of an amount. The officers said they went to the premises of A 1 in Makeni for purposes of conducting a search and that the saw already assembled milking equipment at the premises of A 1 such as milkers, milking tank and other parts for assembling the machinery. They said they then proceeded to Chisamba where A 1 's mother in-law resides, for a further search where PW15 a milking tank (P68) which he took to the Task Force offices. During cross-examination the defence questioned the witnesses on the Inconsistencies in P64, the Bill of Entry for milking machine wherein the consignee is the Army Commander, Lusaka Zambia. PW13 said on p. 7 the freight forwarder is Njanti International and not Redline Carriers as on p.1 He said among the many dates indicated on p.1 of P64 he did see 2nd July 2001 and on p. 7 he did see 26th . J June 2001 but that like p.1, p.7 of P64 was prepared in South Africa . Then the defence aimed to show that A 1 had purchased dairy equipment from Wentworth which was said to have been cleared by Sazaam Forwarding and Clearing in 2002 by showing witnesses export documents dated 25th May 2002. The witnesses said the docuJent indicated that money was paid to Wentworth for a paste~rizer and milk cooling tank compressor and that the said Wentworth acknowledges receipt of US$6, 500=00. He said the cost of equipment was indicated as R1, 047=00 and that R1, 000=00 was paid. In re-examination these witnesses both pointed out that the invoice dated 21 st October 2002 indicates that the said items were paid by Ambrosia Milk World and that they had both only seen it for the first time in court when the defence showed it to them. In his defence A 1 said General Kayumba informed him that A2 could introduce him to a South African who was assisting him procure dairy equipment and that when he spoke to his co-accused about his dairy farm and asked him where he could acquire dairy equipment A2 Introduced him to Kirk Wentworth. He said all the dairy equipment (P65-P66) the court was shown at his farm were bought by him from -Kirk Wentworth the owner of Greenwood Enterprises based in the Republic of South Africa and that the equipment comprises a 6 point milking machine which milks 6 cows at a time with a pressure pump. According to him the state witness was incorrect when naming milking machine. He said he paid Wentworth US$10, 700.00 whose breakdown was US$6, 500.00 for the 6 point milking machine; US$3, 600.00 for the security gates and US$600.00 for transport in January 2002 Wentworth gave him a receipt for this payment dated 1 oth January 2002 (D33). He said this amount he paid translated into R147, 000.00 plus R65, 000.00 leaving a balance of R82, 000.00 (per D34). He said the equipment indicated on D34 was delivered in • August 2002 but that it was different from that he had paid for!! and that blcause he received smaller tanks than he had paid for he got a price reduction on the balance and that he finally paid R74, 000.00 in 2002 instead of R82, 000.00 (per D35). According to him after payment the 6 point milking machine was delivered to his farm in Makeni known as Ambrosia Milk World. With regard to P64 he said he is not listed on any of the documents as consignee and neither is his farm and he denied having received milking equipment through Redline Carriers as reflected in P64. He said he never bought equipment valued at R20, 000.00 from Wentworth and that he did not know the item listed on page 3 of P7 4 indicated as a mini-milker addressed to him as Army Commander. As such, he denied having received a mini-milker from Greenwood Enterprises through his co accused. With regard to P68, A 1 said it is a transport tank which he bought in 2002 together with two others from a South African dealer (D37 & 038) for milk. When cross-examined A1 said he started the dairy project in 2000 and that he first received milking equipment in --- March 2002. He said he bought a total of six tanks from Wentworth and that there are three tanks at his farm. He said it was a mere coincidence that both he and General Kayumba are mentioned in P64 and according to him the documents are not correct. He said he does not know why equipment not intended for him would be consigned to him and he insisted that he did not have any dairy business with A2 and that General Kayumba had warned him against getting dairy equipment from A2. In this vein he said page 3 of P74 which is an invoice addressed to the Army Commander dated 21 st May 2001 bearing a list of milking equipment had nothing to do with • ..,J ~ him a~d meant nothing to him. He said his co-accused was getting milkinl equipment from Greenwood Enterprises (P74). He insisted that it was not his co-accused who introduced him to Wentworth, thereby changing his earlier position. He denied that P38 headed 'cash accounting Army' had anything to do with him; he refused that P22 a letter from Base Chemicals dated 18th May 2001 instructing the Barclays Bank manager to issue a bank draft to Greenwood Enterprises for milking machine had anything to do with his own milking machine. He said in relation to page 7 of P74, that he was the Army Commander at the time the invoice was written on 7tn May ~ 2001. In his defence A2 said the items listed in the invoice dated 2001 in P74 were addressed to the A1 because most of the items in Mr. Wentworth's van were meant for Kaoma, Zambia Army, Luena Barr!_Cks project. A2 denied having given A 1 a milk tank (P68) valued at US$2, 500.00 or any other amount; and he denied having supplied him with milking equipment. He said P65 and P66 did not contain a mini-milker but was rather a semi-automatic milking parlor with 5 bottles. ~ In cross-examination, A2 said page 7 of P7 4 is neither here nor there as it is a stand alone document retrieved from Base Chemicals offices. He said he authored contents about A 1 on P38 but that the supply of fuel to the Army had nothing to do with A 1 's private milking project. According to him P22 is a letter for a bank draft in respect of General Kayumba and not A 1. ••••••••••••••••••• •••••••••••••••••••••••••••••••••••••••••••••••••••••• ~ ll .. My Findings are that: Had A' bought milking equipment from Wentworth in 2001 he should have made this clear by producing relevant evidence to the investigating officers and at the time he was being questioned prior to the matter coming to court. As such I am not convinced that all the equipment (P65-P66) found at A 1 's farm . were bought by him from Kirk Wentworth the owner of Greenwood Enterprises. The officers PW13 and PW15 are not experts in the area of milking equipment and as such the court does not expect them to know the specific details of such equipment. Nonetheless with the resources that the ~ Task Force is availed efforts should be made to engage people with .._.,, relevant knowledge. I point this out because I noted that PW 13 and PW15 had difficulties in naming some of the equipment in P65-P66. Having said all that, I find that when page 11 and page 2 of P7 4 are read together with P22, P38 and page 7 of P64 there is no doubt that K2. 2_ought equipment for A 1 through Base Chemicals. Upon consideration of the prosecution's evidence and having not been provided with a reasonable explanation from the defence I am satisfied that the charges under counts 5, 6, 11 and 12 have been established against A 1 and A2 beyond all reasonable doubt. Counts 7 & 8: Counts 9 & 10 The summary .below has combined the above counts as evidence adduced with respect to these counts is inter related. PW4 gave his full names as Richard Nyoni, a contractor resident at flat P10/60 plot C6 Kafue Estates. He told the court that he worked • for z:bricks Investments Ltd. His testimony was that he was introd~ced to A2. in June 2001 by a Dr. Moses Banda whom he had known since 1995 and that he had asked Dr. Banda to help him find clients. That to this effect the said Dr. Banda one day phoned him and said a friend of his, namely Amon Sibande (identified as A2) had construction jobs. He said that is how A2 took him to General Musengule's (identified as A 1) farm in Makeni to construct a milking parlor, 3 calf panes and a servants' quarter. He said the labor charges were agreed on between him and A2 as follows: -Milking parlor for K500, 000.00 -Calf panes for K3, 500,000.00 and that the charges for the servants' quarter would be agreed upon later between him and A2. He said on a Monday morning A2 gave him K6, 100,000.00 whose breakdown was; -K2, 100, 000.00 as an advance for PW4's labor __ -K4, 000,000.00 to purchase equipment and material P\/v4 told the court that he then mobilized his workers whom he took to the farm plus the materials, equipment and tools. He said they started building the milking parlor and the servants' quarters and that the milking parlor was a steel framed structure; with galvanized iron sheets while the servants' quarter was constructed up to slab level due to various factors that arose as works progressed. That to the best of his knowledge the steel frames came from Base Chemicals and that he knew this because in his earlier job with A2 he was to put up four similar structures which came in a consignment of 5; 4 were for the earlier project at Lt. Gen. Kayumba's farm while 1 structure was to go to A 1 's farm. He told the court that when the time came to • erect the frame he informed A2 who undertook for the transportation of thl frame the following day and that he (PW4) inspected them before they were off-loaded from the truck and he took an inventory in the presence of A2, A2's store man and his own foreman. That it was at this time that A2. informed him that one structure should be erected at A 1 's home. He told the court that works on the project progressed slowly because there was an erratic supply of materials by A2. and that this led to him having to go separate ways with A2. He said by the time he had left the project he had already erected the steel frame and that he was aware that a Mr. Simasiku of Mazzonites took over the works from him. He led the court for a scene visit in Makeni at a place called Ambrosia Farm where he said he did works for A1 under instructions of A2. At this site he showed the court a structure which he said he worked on, pointing out that it has 4 blue frames. He told the court that the said -.. structure is what he knew as the milking parlor. According to PW4, A2. supplied him with the frames whose source was Base Chemicals. PW4 said although he had pursued A2 for his balance for works he did, to date he has not been paid the K11, 000,000.00 and that later A2 advised him to agree on his payments with Mr. Simasiku. According to this witness, the two projects he did under instructions of A2. were carried out between June and October 2001and that at the time of the project in Makeni A 1 was the commander of the Zambia Army. He told the court that A2 supplied the construction materials and he was also the one to pay him charges for his labor for both projects. PW4 led the court for a scene visit in Ibex Hill where • he sai~ he did the earlier project under the instructions of A2.. He told the ~rt that of the 5 structures he had earlier mentioned 4 went to this particular place in Ibex Hill and were comprised each of 5 partial frames, roofing sheets plus accompanying bolts and screws. He said he saw the structures in Ibex Hill before they were erected and that to the best of his kno. J:ile_dge the structures came from Base Chemicals. In cross-examination PW4 said he received K6.5m some time in September 2001 from A2. in respect for work done at A 1 's farm. He reiterated that the instructions to him from A2. were for him to erect 4 steel structures at a farm in Ibex Hill belonging to one Lt. General Sunday Kayumba who was Zambia Air Force Commander then. He said the 5th structure was to be erected at A 1 's farm in Makeni where he said he put up 1 structure of 5 partials, plus foundations for the servants' quarters. He said he did not know whether the structures put yp at General Kayumba's farm were paid for, neither did he know whether the one at A 1 's farm was paid for. In re-examination he said the conditions of the contract stipulated that A2. should supply the materials while he was to supply the labor. PW6 was Lt. Col. Charles Sinkala, a Zambia Air Force officer who _,/. told the court that he was posted as officer commanding engineering wing to Livingstone in October 2000. His testimony was that he recalls meeting one Mr. Sibande in Livingstone and he identified A2. in the accused's dock as the said Mr. Sibande. He said he took a trip with A2. to Mbala and Mumbwa as the Commander then, a General ·i .. Kayu,1ba wanted him to be familiar with the works relating to school construction which Base Chemicals was undertaking. He told the court that Base Chemicals was to construct 2 classroom blocks in Livingstone ZAF station and a gym at Air Head Quarters in Lusaka and that to this end they received steel structures from South Africa. He said the steel structures were brought to Lusaka by a Mr. Simasiku who was contracted by Base Chemicals but that he (PW6) had not seen the steel structures at Air Head Quarters. He said the said structures were blue in color and that they are frames used for building. According to him the classrooms were constructed and completed sometime in September 2001 but that he had not seen a gym in Lusaka even though he was currently working at Head Quarters which is based in Lusaka. In c~ss-exarnination, PW6 said he does not know how much money Zambia Afr Force paid for the steel structures and that the said were used to build 2 classroom blocks for ZAF. He said he did not know when Base Chemicals was contracted to build a gym nor was he aware of a contract for a gym. . I ___, In re-examinqtion he said A2. gave him instructions that the steel structures should be put in 2 heaps 1 b . and the other for the gym in Lusaka and that th constructed but not the gym. eing ,or the classroom block e c assrooms were , I & ::10 told the .court that he provided a letter of instruction to issue k draft to Pick-a-Structure for R150, 000.00 dated 18th by order of Base Chemi I May 2001 ca s and signed by the Chief Executive . I f, Offic,: Mr. A. Sibande (per P21 ). He told the court that he provided a statement of account for Base Chemicals Ltd account no.1928105 and sheet no.17 (per P23). He then said he provided a Deal ticket or receipt dated 21 st May 2001 for the sale of R150, 000.00 to Base Chemicals with kwacha equivalent being K66, 000, 000.00. He explained to the court that this was a confirmation of a foreign currency transaction done by the bank on behalf of Base Chemicals {per P24). In cross-examination PW10 said he had no idea how the money the bank remitted on behalf of Base Chemicals was used. He said he . was not aware ·that Base Chemicals ran a trading and construction company. PW13 and PW15 are officers from the Task Force who carried out the investigations herein. PW13 said he took 26 documents and 6 che~es .(P32 to P63) collected from Base Chemicals to a handwriting expert at Zambia police service for purposes of ascertaining whether the documents were authored by one person or more. He told the court that he had kept all the documents listed on P31 in his custody since they were retrieved from Zambia Police and that the findings were communicated to him by a letter whose subject was "Verification of Handwriting" bearing Zambia Police Service letter head and signed by officer Nyumba (P30). The defence objected to its production on ground that the handwriting expert should be the . . one to admit it together with the handwriting samples but the court overruled the objection as there was no legal ground for the objection. • • • • • • • • • • • • t- • •••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• With \egard to the steel structures both witnesses in summary testified that they were consigned by 'Pick-a-Structure' to the Air Force Commander, Livingstone Air base Zambia. That a Lt. Col. Sinkamba when interviewed said that part of the consignment had proceeded to Lusaka for the construction of a gym at the Zambia Air Force head quarters. That after a visit to ZAF head quarters and upon interviewing a witness responsible for construction works it was discovered that no gym was constructed. They both said they saw similar structures at Lt. General Kayumba's farm and at A 1 's farm in Makeni and PW13 said they looked similar to those that he saw in .___✓ Livingstone at the ZAF Academy. These witnesses said while carrying out investigations in South Africa they proceeded to locate a company called Pick-a-Structure which supplied steel structures as per P64 and that although he found the business premises of the C0"llany he found out that it had gone into voluntary liquidation. It was pointed out that on page1 of exhibit P36 is item no.20 which indicates a payment by Base Chemicals (Z) Ltd in the amount of R150, 000.00 to Pick-a-Structure and that a bank statement of Base Chemicals reflects that the amounts he mentioned were debited from the account. According to PW15 the bank official he interviewed confirmed that the said monies were transmitted. Further that in connection to this matter, on the first page of P64 the first two items indicated are steel structures consigned to the ZAF Commander. The witnesses led the court to identified blue steel structures used to supp6rt a building referred to as a milking parlor which PW13 said were fdentical to the ones he saw In Livingstone. In cross-examination it was pointed out that PW4 Indicated to the officers while being interviewed that he used the steel structures in question to erect a milking parlor, a milking shade, and a chicken run at A 1 's farm in Makeni and that they came from Base Chemicals (Z) Ltd; where PW15 said he found 3 structures. PW15 said the building materials were allegedly bought by A2 and sourced by PW4. It was pointed out that exhibit P75 shows that as at 31 st December 2001 A 1 's Makeni project was undertaken at a cost of 7, 480.00 and at the ____,,' end of the project it states 'Makeni project'-14, 561,000.00. Further that P38 a Base Chemicals complimentary slip is titled "Cash Accounting Army" on the first page and that it lists items inclusive of structures under 'Total Expenditure to Date" and under Lt. Gen. Mu~ngule Cash." PW13 said that he never came across any information that A 1 's wife paid K5m to Mrs. Kaira of Base Chemicals. When shown a document by the defence in cross-examination he said it appeared to be a petty cash voucher turned into a receipt referring to additional payments from A 1 's wife and received by Kaira and that the signature J on the document appeared like that of Kaira (DW3). In his defence with regard to the steel structures A 1 said he bought one structure from his co-accused for K7, 500,000.00 and that he made an initial payment of K3, 500,000.00 then later told his wife to go anti pay A2 K7, 300,000. According to him A2 did not mind that the filal payment was short by K200, 000.00. He then said later Nyonl (PW4) went to his farm to put up the structures on instruction of A2 but that he only did the foundation and disappeared before he could put up the structures. He said Nyoni lied when he said he put up the structures at his farm. With regard to count 10, A1 said he did not receive any building materials worth the amount indicated therein from A2. During cross-examination, A 1 initially said he could not · recall getting a receipt for ·the payment he made to his co-accused for the steel structures later he said the receipt for the payment was not mentioned in his examination-in-chief because he did not see it fit to talk about it. He told the court that at the time he met A2 about the steel structures the Kaoma project had not yet commenced. In his defence, A2 led the court to what he said was the Base Chemicals warehouse where he identified steel structures which he said had come in through Livingstone and that this was the place where the steel structures found at A 1 's farm were stored prior to being erected there. Then he led the court to what he called a family farm In Balastone Park, Lusaka West where he yet again identified steel structures. ·in cross-examination A2 said the structures he identified were not the same that he supplied A 1. According to him ... __,,,,,, Gen. Kayumba bought steel through Base Chemicals from South Africa which came into Zambia in May 2001 and that the remainder of the steel was sold to A 1 by Base Chemicals. He said the payment was received from A1's wife in the amount of K7.4m. He could not recall exactly when the structure was sold to A 1. I ••••• •.. •••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• 45 DW1 'was Muriel Mwango, A 1 's wife. Her testimony was that the husb!nd gave her K7.3m to deliver to /.l2. as part payment for building materials in 2001. She said she gave the money to Mrs Kaira (DW3) who gave her a receipt (062 her copy). In cross-examination she said the receipt was not created after this matter had already commenced. DW3, Mavis Kaira is the marketing manager for Base Chemicals; she confirmed having received K7 .3m in 2001 as additional payment for . building materials from DW1 after which she said she gave her a receipt (D66 Base Chemicals copy). In cross-examination she said Base Chemicals was not a seller of building materials. When questioned over other transactions between Base Chemicals and the Army DW3 being the marketing manager of Base Chemicals said she knows no details concerning the building projects undertaken by the com_eany for the Army. I do not believe this at all and I am of the view that DW3 was being untruthful in her testimony. Further even when her previous statement was put to her she denied having said anything concerning building projects and yet she signed the said statement. . _ ,./ My findings on these counts are as follows: With regard to counts 9 and 10 I find that the testimony of PW4 was very overwhelming and it is supported by P36 a record of payments from Base Chemicals to various projects which indicates that PW4 was given money for building materials plus P75. In addition P38, >- unde,l the title 'Lt. Gen. Musengule Cash' mentions 'structure consttuction' and on top of the page costs for petrol/diesel and Kalewa are also indicated. This document was authored by A2 as admitted by him. Unfortunately he failed to explain why his reconciliations done on company paper in his writing combines business transactions with the Army and milking equipment, structures, construction, and structures for A 1. With regard to counts 7 and 8 it is not plausible that structures bought by Base Chemicals on behalf of Gen. Kayumba should be sold to A 1 again by Base Chemicals. There is no evidence from the defence, apart from word of mouth, showing that Gen. Kayumba paid for the structures and that he was refunded for the extra that he did not collect as per A2. I state this because the claim by A2. that Gen. Kayumba paid for the structures through his company Magnvolt using ABSA, a bank in South Africa in May 2001 is not convincing because the said Magnavolt was incorporated on 24th August 2001. This is obviously 3 months after the payment is said to have been made. I -- find this impossible to believe. A 1 said he paid for the structures/additional building materials to Base Chemicals through his wife, DW1. Again there are inconsistencies jn this claim, firstly in that A 1 could not initially recall having received a receipt for the said payment but later said his wife showed him a receipt. Secondly he ..... _,, said one structure cost K3.6m but he told the court that he initially paid K3.5m and later paid K?.3 through his wife, this amounts to K10.8m. Further the defence through DW1 and DW3 produced D62 and D66 as evidence of payment for the structures/additional building materials to Base Chemicals and D63/D64 are payments to Hand~man's Paradise for purchase of building materials. The -- deferte failed to produce the receipt for the prior payments; this was a big oversight as D62/D63 clearly indicates 'additional payment' . When exhibits P21, P23 and P24 are read together with page 1 of P36 it becomes clear that Base Chemicals made payments to purchase steel structures for A 1. Given that the defence have not offered a reasonable explanation for these transactions and also that the evidence of the prosecution leave no doubts in my mind with regard to the guilt of the two accused persons, I find that counts 7, 8, 9 and 1 O have been proved beyond all reasonable doubt. The house, namely Portion 1 of ERF 276 Alison Road, Buccleuch, situate in Sandton, Johannesburg, in the Republic of South Africa (hereinafter referred to as 'the house') is another issue to be considered in connection with the allegations that A 1 gave A2.'s com.e_any Army contracts for supply of fuel and construction of quarters in Kaoma Luena Barracks. It should be pointed out here that the defence objected to evidence being led in relation to the house on ground that the issue is not reflected in any of the counts under which the accused stand charged. The state replied that the evidence sits well with Section 37{2)a and Section 38 of the Anti Corruption Act as house is seen as part of benefit accruing to A 1 for having contracted A2 and his company to provide goods and services to the Zambia Army. The court overruled the objection because the concluding portions of count 1 and count 2 encompass this issue. The state relied on exhibits P26, P27, P28, P70, P71, P72 and P73 in addition to witnesses' testimonies in supporting this allegation. •••••••••••••••••••• ' .................................................... , .. PW1 ~ and P15 said while carrying out investigations in South Africa they f'ent to a company. namely Knight Realty Trust cc., an estate agent which according to information received was responsible for the transaction relating to the house in question. They said they had seen a payment to the estate agent from Base Chemicals (Z) Ltd and that A2. gave instructions for the transfer of funds. It was pointed out that P20 is a customer transfer document for R613. 300.00 by order of Base Chemicals (Z) Ltd for the benefit of Joan Knight Realty Trust. Further that another transfer document is dated 14th December 2001 for R401, 277.94 by order of Base Chemicals for the benefit of Joan Knight Realty Trust (per exhibits P26 and P27). They said it was confirmed at Joan Knight Realty Trust that the company had received the funds and that while the company books showed that R613, 300.00 was applied to the account of A2. the R401 , 277.94 was applied to the account under the name 'Musengule.' It was explained to the court that the money was paid to the seller of property ERF 276 Barcleuch and that the beneficiary of the house was one Leroy Musengule, the son to A1. Five 5 pictures bearing the image of the said house were identified (P70) as well as 2 files collected from the real estate company; one file (P71) was said to relate to the sale of the property from Bacleuch Investments to Leroy Cha_swe Musengule while the second file (P72) relates to the sale of the same property from Leroy Chaswe Musengule to two persons namely Marsha and Wendy. This is supported by a Power of Attorney given by Leroy Musengule for disposal of property (per P73). ·························~---············································ ·~ During ~ross-examination the officers said no formal statement was obtaine~ from Leroy Musengule. That it was not known who was living in the house the time they went to South Africa but that it was not Leroy Musengule as per estate agent. It was pointed out that the sale of membership in Buccleuch cc.was initially in A 1 's name, then it was cancelled and that to his knowledge the property in question was never in A 1 's name (per P71 ). They said they never came to learn that A2 was a member of the estate company but that they noted in the books of account that a certain amount of money was credited to A2. They said they did not investigate the business relationship between A2 and Leroy Musengule. It was pointed out that Leroy ----- purchased the house for R780, 000.00 in December 2001 and that it was sold for R600, 000.00 in July 2003 after investigations were commenced. According to PW15 the offer to purchase in the file (P71) is what connects the house to A 1 as his name is on it, though cancelled and leaving it solely in the name of his son Leroy Chaswe Musengule. PW15 said exhibit P72 has a letter dated 22nd July 2003 written by Charlotte Bajeth of Joan Knight Realty to Mrs. Musengule Clo of Mr. L. Musengule and that the subject of the letter was the sale of no.2 Alison Rd Buccleuch Sandton. He said he did not know which Mrs. Musengule the letter referred and that it was not signed. PW15 ~ said he does not know what unit 3 Ashley is as referred to in P72. The ,,-.., defence pointed out through PW15 that the document dated 14th July 2003, a letter from Joan Knight Realty signed by Charlotte Vageth is not on headed paper; the letter of 22nd July 2003 is on headed paper and that although it shows that Charlotte Vageth is the author, the letter is not signed and that below Charlotte Vageth's name is 'Joan Knight ilealty cc'; and that the letter of July 14th 2003 bears Charlotte Vageth~ name and Joan Knight Realty without cc after it. The officers told the court that due to limited time the Task Force did not know where to find Leroy Musengule · and so they did not speak to him and neither did they go to the house in question. PW15 said he does not know the person who filled out the offer to purchase in P71 ; that A1 1s and Joe Sichilundu's names were cancelled on the offer to purchase and that the cancellations were signed for. He said he did not investigate the issue of company membership but that he could not say whether A1 was a member or not. He said before 6th December 2001, the date on the offer to purchase, no.2 Alison Road ,.........,_ Buccleuch belonged to Pasad Pravini Becher and that he did not interview this person. He said he never found out whether A 1 ever lived in the said house or whether any rentals accrued to him at any one time In relation to the house but that he did investigate whether the money realized from the sale of the said house accrued to A 1 and that he found that it did not. He said the property was bought for - R780, 000.00 in December 2001 and that he did not investigate the exchange rate of the rand to dollar in 2001 ;he refused to believe that It was US$1 to R10 and that he was unable to state that R780, 000 could reduce to R600, 000.00 a few years down the line. In re examination he said he did not find out whether or not A 1 had lived in the said house as it was. not important to find that out and according to him, since Leroy Musengule's name is on the offer A 1 still has connections with the house and that he benefited in accordance with the ACC Act. PW10 said he provided an MT103, a transfer instruction for R613, 300.00 (P26) and another MT103 in the amount of R401, r 277.94: (P27) to Joan Knight Realty Trust by order of Base Chemicals to Joa,t, Knight Realty Trust. In cross-examination he explained that exhibits P26 and P27 were internal bank documents and that he did not know where the client's instructions were in relation to those transactions and that he did not know the instructions. In re-examination he said there was nothing wrong with the contents of exhibits P26 and P27 and that they had checks and balances that they use to deal with clients' instructions. He said according to P26 and P27 the bank worked on instructions of Base Chemicals which were reflected on exhibit P28 as transactions. In defence A 1 stated that he was not familiar with the house depicted In P70 and he denied ever owning it. He said he has never dealt with Joan Knight Realty cc or Liora Bamberger and that he has not discussed the purchase of the said house with his son Leroy. He told -- - the court that he did not know how his name found itself on the offer to purchase but that the writing on the offer seemed to be that of his son. In cross-examination he said as far as he knows his son Leroy never bought a house in South Africa and that he did not know that his co-accused bought a house for his son in South Africa for R780, 000.00. He then said his son spoke to him about dealings he had with A2 but that he could not go into the details. He said his son never told him about his (A 1 's) names or his son's Joe Sichulundu Musengule's name appearing on the offer to purchase in P71. In relation to the letter in P72, A 1 said his son Leroy was not married in 'l, 2003 btt got married in 2006 but that the Mrs. Musengule mentioned in p72\ras not his (A1's) wife. In re-examination A1 said the letter in P72 was not signed and that neither he nor his wife had ever dealt with Joan Knight Realty cc. In his defence, A2. said he and Leroy Musengule bought Buccleuch Investments cc. with its assets for R780, 000.00 · and that the latter had the Power of Attorney to sign for the transfer of the property. He told the court that the house was part of company assets and as such it had its own title. He said he did not know who added A 1 's name and Joe Sichulundu Musengule's name to the offer nor did he know who crossed the said names out. He then explained that Buccleuch lnvestement cc did not fair well so Leroy Musengule decided to sell. He said the house was sold at R600, 000.00 due to the fluctuating exchange rate and that a profit of USD$30, 000.00 was allegedly made. __ During cross-examination A2. said the house was jointly owned by him and Leroy Musengule and that at the time of the offer in P72 Leroy Musengule owned the company. According to A2, the company was sold with its assets and then the title to the property was transferred later. He said the files on Buccleuch Investment cc do not contain information indicating that he is a Director. He told the court that he started dealing with Leroy sometime in 1997 /1998 way before Base Chemicals started dealing with the Zambia Army. He said although Mrs. Musengule was not a partner in the company, she was informed about what was being done to the property in a letter. f I - , -.. " He dented having given the said house to A 1 as gratification and that it was Jrong for A 1 's names to appear on the offer. DW1 who is A 1 's wife denied having received a letter contained in P72 from one Charlotte Vageth of Joan Knight Realty cc which discusses the sale of 2 Alison Road, Buccleuch, Sandton. She said she did not know the property in question and that she had nothing to do with it. In cross-examination she said Leroy is her son currently residing in Lusaka and that he married in 2006 and that prior to this there was no Mrs. Musengule in relation to Leroy. _ She told the court • that prior to this matter she had no information about her son acquiring the property. PW11, Lt. Col. Edwin Kasoma, the Assistant Adjutant General in the manpower and personnel administration in the Zambia Army gave - evldenca..sho~lng that one Leroy Musengule Is A 1 's son. My findings on this issue are that: It la not In dispute that one Leroy Musengule is A1's son and that he la the same person indicated as owner of the house in question together with Buccleuch Investments cc in exhibits P71, P72 and P73. Nowhere is A2 mentioned as co-owner with Leroy Musengule as claimed by A2. The defence did not call the said Leroy to testify on claims that he was in business with A2 even though his mother DW1 said he was at the time within the jurisdiction of Lusaka, Zambia. Through P26, P27, P28 it is clear that payments were made towards this property by Base Chemicals. It cannot be mere coincidence that •• ,, A 1 toge:her with his other son are mentioned (though admittedly their names ?re cancelled) on the offer to purchase the property in P71. I find that in terms of section 37(2)(a) A2 indirectly gave A 1 a benefit of the house in question through his son Leroy Musengule. I will now deal with issues pertaining to exhibits P32 to P63 which are documents that were collected from Base Chemicals and later taken to the police for handwriting verification. The report from PW14, the handwriting expert, states that all the documents were written by one person. It is not in dispute that the said documents were unphotographically processed as according to PW14, A2 who was suspected to have authored them refused to submit a handwriting sample. The expert therefore did not determine whether the handwriting in the exhibits had similarities or differences with A2's handwriting. I am mindful that the Supreme Court in the case of Giraffe :Su• Serylce1 Ltd V Abel Lwitikiko Mwandemwa (2001) S. C.held that "the function of a handwriting expert is to point out alml/arlt/oa or differences In two or more specimens of handwriting and the court Is not entitled to accept his opinion ... ,, On the other hand in his testimony A2 admitted having authored P38 and P43 and since the expert stated that all documents were .. ' 'iti ... authored by one person, it therefore follows that A2 must have authore~ all the documents comprising P32 to P63. Perusal of these documents shows that A2 through his company Base Chemicals was doing business with Zambia Army and ZAF wherein his company supplied fuel to the two public bodies. Exhibit P1 is a contract awarded to Base Chemicals to construct housing quarters for the Army. At the same time part of these documents such as P38 and P46 indicate that particular items such as miiking equipment, structures and commissions were being given to A 1 and some Army officers respectively and that this was in connection to the • business Base Chemicals was getting from the Army. Further P74 confirms that A2 through Base Chemicals procured items for the benefit of A 1. Legalities surrounding P7 4 being obtained outside jurisdiction were resolved in ea;lier cases such as The People V Lt General Wilford Joseph.. J:unjika (SCZ no. 18 of 2005). Section 38(1) of the Mutual Legal Assistance in Criminal Matters Act, CAP 98 of the Laws of Zambia under which this document was produced provides that," A record or copy and any affidavit, certificate or other statement pertaining to the record sent to the Attorney General by a foreign state in accordance with a Zambian request, shall not be inadmissible • in evidence in a proceeding wit respect to which the court has jurisdiction by reason only that the statement contained in the record, copy, certificate or other statement is hearsay or a statement of opinion. 'The Supreme Court held that "Section 38(1) deals only with the mode of gathering evidence, but does not take away the trial 'irt fl court's discretion in deciding whether conditions for obtaining the eviden!e were met and what weight to attach to the evidence.'' In this case I find no reason to discredit the manner in which the Prosecution obtained P7 4 which I find to be crucial evidence. By reason of the foregoing, I therefore, find both accused guilty on each and every count for which they stand charged respectively and I CONVICT them accordingly. JUDGMENT DELIVERED IN OPEN COURT THIS 2ND DAY OF .• MARCH2009 I ' LIYA BANDA TEMBO (MRS) SENIOR RESIDENT MAGISTRATE -- Leave to appeal is granted (within 14 days). •••.••••••••••••••••••• • • • ••••••••• 57· •••••• • • • • • • • • • • • • • • • • • • • • • •.• • • • • • · ~ I