Lawyers representing business mogul Thom Mpinganjira have asked the High Court in Blantyre to free their client arguing that prosecution failed to prove their case.
During oral submissions Wednesday morning Mpinganjira’s lawyer Patrice Nkhono said the case should be dismissed for lack of evidence.
Nkhono was also surprised with the State ‘strange’ request to presiding judge Justice Dorothy De Gabrielle that if she finds that Mpinganjira has no case to answer, then she should not acquit him but allow the State to amend the charges.
“This is not provided for by law,” pointed out Nkhono.
“If the State has failed to prove a case at this stage, the Court must acquit. In fact it is a desperate plea on the part of the State to even bring that up. Doing so would in fact be in breach of the rule of ‘double jeopardy’,” said Nkhono.
“It was clear that the State has largely relied on proving an emotional media driven case rather than a factual one as they fell short of proving essential elements of the case such as the intent, purpose and which parties if any at all were to be put in advantage upon receipt of the said parcel,” he added.
Nkhono said while Mpinganjira purportedly offered a parcel to the five-judge panel of the High Court sitting as Constitutional Court hearing the presidential election nullification petition, the State failed to show any element of corruption in the offer.
“Justice Healey Potani is on record saying he never discussed the contents of the parcel with the defendant and insinuated that for all he knew it could have been face masks or bottled water,” said Nkhono.
The defence lawyer pleaded with the court to give Mpinganjir a a fair trial, arguing that fairness was at risk from the manner the whole case was handled from the point the Chief Justice Andrew Nyirenda reported the matter to the Anti-Corruptioon Bureau (ACB) and judges being witnesses.
“It is important, for example, you do not go treating evidence of a fellow judges any differently from the way you treat evidence from other witnesses. For us it was important to emphasise that, because if you treat the evidence of fellow judges differently from the way you treat the evidence of other witnesses, you are flouting the right of our client to a fair trial,” he said.
He said pointed out that the audio conversation tendered in court as evidence between Judge Mike Tembo and Mpinganjira had low evidential value as the discussion about the said parcel did not suggest contents of the value.
Nkhono said: “The prosecution has suggested our client offered a parcel to Justice Potani but they haven’t gone further to show it was offered corruptly, so the offences under which they are charging our client do not create an offence in terms of offering an advantage because the parcel would be an advantage in a sense, so the offense is not in then offering of the advantage but is in offering of an advantage corruptly.
“So, the point we are making is if you don’t bring evidence to suggest that the parcel you are talking about was offered corruptly then you have failed to establish before the court at this stage important elements of the offense which relate to you showing that parcel was offered corruptly. So, we are saying that part has not been proved.”
In his submission on behalf of the prosecution, ACB director general Reyneck Matemba argued that there was evidence of a parcel.
He said that the fact that the judges reported the matter late -three months – did not jeorpadise investigations.
Mpinganjira is being accused of allegedly attempting to bribe five High Court judges who constituted the team that sat as Constitutional Court in the May 21 2019 presidential election nullification petition case.
Ruling on whether or not Mpinganjira has a case to answer will be made by the end of January 2021 with no specific date given.
According to de Gabrielle, she will communicate to the parties when she has made her decision.Follow and Subscribe Nyasa TV :