Prosecution witnesses in the K2 billion Cashgate case involving former Malawi Defence Force (MDF) commander Henry Odillo and others have so far shown there is a bsence or insufficiency of admissible evidence that implicate Odillo in a conspiracy to defraud the State.
Odillo, 53, is facing charges alongside former deputy commander Clement Kafuwa, 63, former Accountant General David Kandoje and Ganizani Kuchombo, 39.
The four are accused of sanctioning payments to Thuso Group, a South Africa-based business group which prosecutors say was a fake military equipment supplier and, allegedly, invoiced and received pay from MDF amounting to K920 000 000 and ZAR30 000 000 (K1.5 billion) for supply of ammunition which they did not deliver.
Apart from the accusation of lacking a legitimate contract with Malawi Government and not supplying the ammunition, the Thuso Group deal is also said to have been overpriced.
The case is part of the infamous Cashgate—the plunder of public resources at Capital Hill exposed through the shooting of former Ministry of Finance budget director Paul Mphwiyo outside the gate of his Area 43 residence in Lilongwe on September 13 2013—where about K24 billion was stolen during a randomly chosen six months period auditors covered between April and September 2013.
First witness in the case, then MDF director of finance Harry Chawinga said he was not sure whether Odillo personally participated in the selection of Thuso Group as ammunition supplier.
The other witnesses Brigadier General Chaona and Lieutenant Colonel Chizungu have also not implicated Odillo.
And former Auditor General Stephenson Kamphasa on Friday testified that there is no evidence from the Baker Tilly [Now RSM] audit report implicating Odillo.
During cross-examination, lead defence lawyer Titus Mvalo, quizzed Kamphasa on whether the report which probed the 2012 Cashgate report directly indicates whether Odillo and co-accused persons conspired to defraud the State.
The defence further sought to push Kamphasa into conceding a narrative that MDF top brass, including Odillo, were cheated out of the contract by Thuso Group instead of being part a fraudulent deal or a conspiracy.
Mvalo, citing contract documents which Kamphasa had read out in court on Thursday—referred as IDP2 and IDP4 (A)—first quizzed Kamphasa whether in the audit investigations the State found that Odillo participated in the negotiations of the contract between MDF and Thuso.
Kamphasa said: “No, in the documents, nothing of that sort.”
Mvalo further asked Kamphasa to concede that Thuso, and not MDF, was responsible for obtaining of licence for arms export from the South African government to further absolve Odillo and others of failing to obtain legal documentation.
But Kamphasa insisted that Odillo and other senior MDF officers had responsibility to ensure, before approving the contract and payment, that all documentation was sufficient and the equipment was delivered.
Kamphasa claimed that officials at Treasury could also have been part of the fraudulent deal, arguing that it was puzzling how Treasury authorised payments without delivery notes and other documents.
“Treasury should have done more work before funding this. There were several documents which were lacking. The Treasury instructions are very clear. I am not in Treasury and I don’t know how they operate, but based on the contract, they should have not funded because the contract said payment upon delivery,” he said.
The defence further pushed to portray that other MDF officers were more responsible for getting quotations of the contract, including David Mtachi, then a defence attaché in the Malawi Embassy in South Africa who
allegedly, solicited the quotations from several suppliers and also cited involvement of other organs such as Treasury in scrutinising the contract as evidence that Odillo did not personally push for the contract for his benefit.
Mvalo ended his cross-examination with questions on whether the State had recovered any evidence linking Odillo to any of the cheques Thuso Group issued to reward those who participated in the deal and again, Kamphasa said there was no such evidence from the audit investigation against Odillo.
Special Cashgate prosecutor Kamudoni Nyasulu said the State will parade nine more witnesses, including those who will detail how the proceeds of the crime were shared.Follow and Subscribe Nyasa TV :