CHIEF RESIDENT MAGISTRATE DAVIES CHIBWILI SAVES LYING WITNESS TO GO IN JAIL.
December 20,2024
Lusaka Chief Resident Magistrate Davies Chibwili yesterday saved a lying State witness Nsangu Mpande 54, Procurement and supplies director to go in jail.
Mpande who was under Ministry of defence as procurement and supplies director currently working at Ministry of Fisheries in the same capacity lied twice in the face of the Court before the Chief Resident Chibwili.
In testifying before Court Mpande admitted of lying during cross examination by Senior defense Counsel Milner Katolo .
It was at this point when Defense Counsel Katolo asked the Court to charged the witness with contempt of Court in preserving the integrity of the Court.
But in response for the application Magistrate Chibwili said there was a difference between lying on purpose but finding difficult to answer because of the manner the questions were asked.
This is in matter were Sturdy Mwale and Five others pleaded not guilty to four counts of willful failure to comply with the law,applicable procedure or guidelines relating to the procurement of Gulfstream G650 Presidential jet.
Below is the verbatim of the cross-examination of defense Counsel.
Cross examination….
Defense. Counsel..(Milner Katolo)
Are you in a position to confirm whether whatever you said is the truth?
Witness(Mpande)
Yes
Defense: you are the one who prepared the minutes for the 31st March 2017?
Witness: i confirm
Defence: And the minutes are detailed?
Witness: yes
Defense: you told court that the bid was received on 4th April 2017?
Witnes: Yes
Defense:This was four days after MPC meeting right?
Witness:Correct.
Defense:at the time the meeting was happening, there was no detailed evaluation report?
Witness: Correct.
Defense: so the meeting sat without the bidding?
Witness: Correct.
Defense: Do you remember that you are here to tell the truth? Look at ID15, what is it?
Witness: These are minutes of the meeting on 31st March 2017 and I wrote them.
Defense : Can you discuss a non existence bid in a meeting?
Witness: No
Defense: Can you you discuss a non existant evaluation in a meeting?
Witness:No.
Defense: so you can only discuss what has been received?
Witness: Correct.
Defense: I want you to take note of the date on page 35, item 6.14. What is on that page?
Witness: Application for authority to establish and upgrade the defence force.
Defense:So as a secretary who wrote those minutes, where did you get that information?
Witness: from the earlier bid.
Defense: How many bids were submitted?
Witness: One
Defense: One you say earlier, it means there was a subsequent one right?
Witness: Yes.
Defense: When was the earlier one and subsequent submitted?
Witness: I can’t remember the dates.
Defense Counsel : i will help you.. recall you mentioned there was no bid at the time of the meeting? Read your witness statement. Do you now remember the date?
Witness: yes. 4th April 2017.
Defense: So is it the earlier bid or subsequent bid?
Witness: Subsequent bid.
Defense: So why didn’t you mention in your witness statement that there was an earlier bid?
Witness: This was because my office was not directly involved in the procurement.
Defense: And you want the court to believe you?
Witness: Am saying the truth.
Defense: ifyou are lying confess or I will expose you. Tell court that you were fully informed about all these bid submissions?
Witness: Yes.
Defense: so your explanation is that you are not fully informed does not make you fully involved?
Witnes: yes
Defense: And yet in your witness statement you deliberately mislead the ACC investigator Mr Chipasha?
Witness: Yes sir.
Defense: Do you agree that you can only mislead someone through a lie?
Witness: I don’t agree .
Defense Counsel: So the reason you lied was to support the allegations that procedure was not followed?
Witness: Not correct.
Defense:If that’s not correct, why did you deliberately mislead Mr Chipasha?
Witness: I had no motive.
Defense: so do you agree that what you are calling the earlier bid was received before the meeting?
Witness: I agree.
Defense: Do you agree that your statement that the bid was received after the meeting was a lie?
Witness: yes from the records point of view.
Defense: A record that you signed?
Witness: Yes
Defense Counsel: So you agree that paragraph 12 of your statement contains a lie?
Witness: i agree.
Defense: So we are in court today receding your statement on oath, can you now tell the truth.
Witness: I can confirm before this court that the bid in question was received before the 4th of April 2017.
Defense: Would it be better to say it was received before 31st March 2017?
Witness: Correct.
Defense : And your statement can be amended accordingly?
Witness: Correct.
Defense: Let’s proceed to 6.14, read that.
[Witness reads].
Defense: All that information came from the bid document correct?
Witness: Yes.
Defense Counsel: You told court that the evaluation of this tender was made before the contract was signed, what was the date?
Witness: 5th April 2017.
Defense: But in this meeting of 31st March 2017, the MPC deliberated on the report?
Witness: No
Defense Counsel: Let’s go on page 36,item 6.14.2. Of ID15, Read that .
Witness:Evaluation criteria [reads].
Defense: And the only person who can explain properly was you. Who followed the evaluation procedure?
Witness: Evaluation team.
Defense: Confirm you are a member?
Witness: Yes.part of the secretariat.
Defense: You agree that if there is no evaluation, then there will be no evaluation to talk about?
Witness: Yes sir.
Defense Counsel: In your evidence you explained the stages of evaluation, are those the things mentioned in that report?
Witness: Yes
Defense Counsel: And these minutes are your genuine true minutes that you prepared?
Witness:yes
Defense: Now let’s go to page 37 of ID15. On technical evaluation, read that?
[Witness reads]
Defense: How many pages does that aspect of this report cover?
Witness: 17 pages.
Defense: Do you agree that there’s very detailed information just on technical evaluation?
Witness: I agree.
Defense: And there was a score sheet?
Witness: yess
Defense Cousel Katolo: Let’s go to page 42, on each of those items were scored.. So your minutes are what was discussed in the meeting?
Witness: Correct.
Defense: So when you prepared these items, you comfirm that, that’s what the committee looked at in a meeting?
Witness: Correct
Defense: Let’s now move to commercial evaluation..what are you communicating?
Witness: There are items to be procured and their cost .
Defense: So does the commercial evaluation get its own ticks of its response.
Witness:The document doesn’t show because it was a single sourced.
Defense Counsel:How did the evaluation report that was not in existence at 31st March 2017 find itself in a meeting on 31st March 2017?
Witness: This was a bid information. If the evaluation took place , the names of the people that evaluated was going to show.
Defense: Who puts the scores of the ticks you talked about?
Witness: The evaluators.
Defense Counsel: So, would I be correct to say that those scores where put in by evaluators?
Witness: No!
Defense Counsel: them there?
Witness: Warrant officer Cosmas Tembo.
Defense: And your evidence is that you just copied what he did?
Witness: Yes.
Defense: Did you tell the committee these things am presenting is the desk evaluation?
Witness: No I didn’t.
Defense: Can you indicate where in that report where you said it is a desk evaluation?
Witness :It’s not there.
Defense: Can you show in your witness statement that you said the evaluation that was used was a desk evaluation?
Witness: It’s not there.
Defense: Why didn’t you tell ACC that the evaluation you presented was the desk evaluation?
Witness: I don’t know.
Defense: So therefore when you told court that this was a desk evaluation, you lie?
Witness: Correct.
Defense: So far you have confirmed lying on two occasions?
Witness: Correct.
Defense Counsel Katolo:
On this juncture, I wish to make an application that preserves the integrity of this court and prevent witnesses lying before court.
Pursuant to Section 116 of the Penal Code Chapter 87 of the laws of Zambia.
Deliberately and intentionally telling lies before court of which the accused has confirmed in the face of the court, thereby demeaning the proceedings before you.
We submit that witness like this one after admitting to lie on oath, the Judiciary system will be compromised and the innocently accused will be sent to prison base on the lies told before court.
I humbly request the court to charge the witness for contempt and show why he should not go to court.
Should the court be disinclined to punish the accused, I humbly ask the asked be punished for perjury in accordance to Section 116 of the Penal Code.
Section 116 is very clear on the procedure to be adopted. The court can deal with contempt or the court adjourn the proceedings and the contempter remains in custody.
The witness comfirmed to lie not once but twice and these are not simple lies but that can send innocent people to prison.
Section 116sub paragraph D. THE voluntary admission by the witness means one thing which is to violate the oath he took before you which conduct is capable of prejudicing the accused and misleading the court.
STATE:
We submit that the application to move the witness for contempt is not properly before court because in terms of section 116 of the PenalCode, the provisions criminalizes the act of misrepresenting facts in a way that prejudices a party in proceedings.
But if the court is to be moved on the basis of the contempt being committed in its face, the court sought to have been moved on the provision of section 116 sub 2 is what permits you to move because the same is procedural in nature at the barest minimum. Therefore the application launched as read together with section 116sub2 renders the application improperly before court.
And where the court has not been properly moved, it follows that the court cab not grant the relief sought.
Your honor jurisdiction has not been improperly moved. Section 104 was also cited which the provision criminalizes the offence of perjury.
This is a substantive provision as the provision of section 90 of the Criminal Procedure Code has to be considered.
Perjury can not be dealt with as if it were contempt in the first place because section 116sub2 describes situations where court can summarily deal with a witness alleged to have committed the offence.
We pray the alternative should face the same fate as the first prayer, which is to dismiss.
DEFENSE….
IN a matter of contempt, it’s between the court and the offender, by Counsel speaking on behalf of the contemptner. Counsel can only represent ACC and not any other person.
I also submit that section 116sub2 has been misunderstood by Counsel.
The court should suspend the main trial and inquire the alleged contempt.
Court…
I will need a 30 minutes break to make a brief rulling.
Court…
My view is that the essence of cross examination is to test the veracity of the testimony.
If the witness fails to stand out it questions the credibility of the witness.
The immunity of the witness to give evidence
I have followed and I must say that there is a difference between lying on purpose but finding it difficult to answer questions because of the manner the questions were asked.
The matter was adjourned to January 7,2025 for continued trial.
Mbili reports.
CHIEF RESIDENT MAGISTRATE DAVIES CHIBWILI SAVES LYING WITNESS TO GO IN JAIL
