High Court Judge Redson Kapindu has rejected a plea by convicted businessman Oswald Flywell Lutepo to be given special privileges in jail.
Lutepo was on Monday June 15, 2015 convicted on his own plea of guilty on charges of money laundering and conspiracy to defraud government of K4.2 billion (US$9.3 million) between April and September 2013.
Laywer Oswald Mtupila asked the High Court in Zomba to give the convict special jail treatment and facilities, fearing that Malawi prison conditions would be too harsh for someone with Lutepo’s mobility challenges.
The convict is now confined on the wheel-chair and his lawyer said physically, Lutepo remains in poor condition. He asked the court that Lutepo should be given prison conditions that are not overcrowded.
But in his determination, Justice Kapindu rejected the bid, saying Lutepo will face prison treatment like any other convict serving jail term, saying the two psychiatric experts who examined him stated in their reports that Lutepo did not have mobility challenges.
Lawyer Mtupila stated that whilst the psychiatric findings of the psychiatric experts could not be faulted, their findings on the physical condition of Lutepo were most probably made in error, on account of the observable practical reality.
He stated that this observable physical reality could be attested by Lutepo himself and his relatives.
“The Court declines to make any order for the special treatment of the convict in prison,” said Judge Kapindu in his ruling seen by Nyasa Times.
“ The Court has on record expert findings on the condition of the convict and unless these are displaced by more competent specialist findings, the Court will stick to the findings on record,” he added.
The Judge said Lutepo is within his constitutional rights to make application to Court bringing “special considerations” for his treatment in prison should he have proper and convincing evidence to justify such application.
“The Court therefore orders that the convict will be held in prison in conditions consistent with human dignity as they apply to all other prisoners in prison, which are consonant with the lawful principles, procedures and protocols applied by the Malawi Prisons Service from to time,” ruled Justice Kapindu.
Meanwhile, the court ordered that, all Lutepo’s property should be confiscated by June 25.
Applications for pecuniary orders will be made as a form of punishment for Lutepo if he fails to pay the money laundered through his companies, among them International Procurement Services (IPS) and O and G Construction.
The Judge also said all his assets that are outside the country should be returned to Malawi by June 19.
Director of Public Prosecutions, Mary Kachale, asked the court to defer the imposition of sentence on Lutepo, while enquiries are made to identify, value and restrain his property.
Kachale said: “We thought it wise to look into the beneficiaries of the convict first so that they should be returned to the government.”
The prosecution argued that convicted criminals like Lutepo must be put in the position they were before they committed the crime or be made poorer than before and also generally be taught that crime does not pay.
“In money laundering offences, courts must never shy away from issuing confiscation orders and/or pecuniary penalties where necessary. Whilst in many cases prison terms are germane, it is imperative to ensure that in addition to such prison terms, thieves, fraudsters or launderers should not derive financial benefits from the proceeds of the crime subsequent to their conviction and sentence,” said Judge Kapindu.
Reyneck Matemba , the Deputy Director of the Anti-Corruption Bureau, stated that the State is aware of various properties belonging to Lutepo that should be among those assets that will be the subject of the confiscation order sought.
The prosecution has stated that its application for confiscation will target assets that are of substantial value to meaningfully make restitution to the State.
Lutepo becomes the seventh person to be convicted on Cashgate-related charges since arrests began in 2013.Follow and Subscribe Nyasa TV :