Former minister of community development and social services Emerine Kabanshi has asked the Lusaka Magistrates’ Court to admit her to bail so that she can campaign for her party, the Patriotic Front, and exercise her right to vote.
Kabanshi wants the court to temporarily free her pending appeal to the High Court challenging her two-year jail term which was imposed on her by the Lusaka Magistrates’ Court on May 28, 2021 on two charges of willful failure to comply with the law, applicable procedure or guidelines relating to procurement for the social cash transfer program.
According to her three grounds of appeal, Kabanshi said Lusaka chief resident magistrate Lameck Mwale erred in law and fact when he found that her office was tasked with the management and administration of the Ministry of Community Development and Social Services.
She said the trial court erred in law and fact when it found her guilty in both counts against the weight of evidence on record.
Kabanshi further stated that magistrate Mwale erred in law and fact when he found that she willfully failed to comply with the law and applicable procedure or guidelines relating to procurement by extending the scope of coverage between Zampost and the ministry to include the provinces and two districts on the social cash transfer programme and re-engaging Zampost as the payment service provider for the social cash transfer programme after the contract was terminated.
When the matter came up for hearing of the bail application before magistrate Mwale, Kabanshi’s lawyer Jonas Zimba submitted that his client’s appeal discloses exceptional circumstances therefore the court should exercise its discretion in her favour and grant her bail.
He said the matter raises issues of public importance because the court in its judgement placed reliance on the provisions of the cabinet handbook when on the other hand Act no.2 of 2016 Article 166(1)(2) had different provisions from the cabinet book.
“We are constrained to discuss provisions of the constitution before this court and test them accordingly. We will have a flavor of the cabinet handbook under the 1996 constitution compared to that of 2016,” Zimba said.
He submitted that there was a likelihood that by the time the appeal is heard the convict would have served a substantial part of the sentence. “This appeal has very high prospects of success. Where an application for bail pending appeal discloses special circumstances, the court’s discretion ought to be exercised in favour of the appellant. The affidavit in support of the appeal has not been opposed by the state and special circumstances disclosed which are a matter of fact have not been contraverted by the state,” Zimba said.
“The court should take judicial notice that the appellant (Kabanshi) is a politician and it is an election year where she desires to exercise her political desire to participate in the campaigns and decision making on August 12. It is our prayer that the applicant be admitted to bail.”
And Katindo Mwale submitted that Kabanshi was on bail during trial and religiously attended court without fail.
In response, Tyson Mudenda of the Ant- Corruption Commission said Kabanshi’s grounds of appeal do not disclose exceptional circumstances.
He said no doubt has been cast on the correctness of the conviction. Mudenda said the fact that Kabanshi was on bail pending trial does not amount to exceptional circumstances.
Ngwira said the finding of the court that ministers are responsible for the management and administration of their ministries was made on the basis of evidence.
He said the argument that the trial court erred in law and fact when it found Kabanshi guilty in both counts against the weight of evidence on record was self-defeating and lacks merit because unsworn evidence weighs less than sworn evidence.
Ngwira said there was nothing on the face of the record to show that the court made a finding of fact in a vaccum. He said Kabanshi’s call on the court to exercise discretion in her favor ought to be dismissed.
In response, Zimba argued that the court evaluates the grounds of appeal and not the state.
“The conviction and sentence is what is being challenged and we submit that there is a proper appeal that speaks to the same,” he said.
Magistrate Mwale stood down the matter to 14 hours for ruling in order to have sight of the citations availed to him by the defense and the state.
The classic Kabanshi, who has not dropped her standards despite being sent to prison, requested the prison warder to allow her to be ferried to Lusaka correctional facility commonly known as “Chimbokaila in her beautiful car (VX).
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