State witness in K2.4 Billion fraud case says double payment in FISD was an Error

A state witness in the on-going FISD case in which four directors stand accused of defrauding government for receiving double payment for the same work from the African Development Bank says the payment was an error and not an intentional criminal act.

The State Tuesday has paraded a second witness, in the on-going case involving four the directors for FISD, who gave a revealing testimony that may as well work to the advantage of the defence.

The four directors alongside an accountant from Ministry of Agriculture are accused of defrauding government after FISD received double payment for the same work from the African Development Bank which is financing the project.

From the onset, the defence has maintained that the double payment was just an error which was corrected and communicated to the bank.

The state witness, Kondwani Msowoya, a government employee who is in charge for the project for which FISD was contracted, also told the court that in his own opinion the double payment in question was indeed out of error – and ruled out criminal intention.

“When we noted the error we wrote the contractor about it and the contractor acknowledged receipt of the double payment and committed to pay back so personally I didn’t think there was any criminal intentions.

“But when it was later noticed that there was an alteration of figures in some payment forms at the Ministry’s accounts office that is when suspicion arose. But personally I considered the double payment an error,” said Msowoya.

Msowoya also told the court that there was correspondence between the contractor (FISD) and the project as well as the Bank on this double payment.

He said the project had advised FISD to refund the payment and the firm asked if the said money could be deducted from remaining payment but unfortunately the contract was terminated even before this was fully resolved.

Senior Resident Magistrate Florence Msekandiana has since adjourned the case to January 11 and 12, 2022 when Msowoya is expected to continue with his testimony.

State advocate Pirirani Masanjala, in an interview after court session, said they will parade about seven witness.

‘Punching Holes’

On Monday the state paraded Moses Mwakilama – from the same project as the first witness who was exposed to a three hour gruesome cross-examination after his testimony.

While Mwakilama sounded knowledgeable and competent – he was exposed during cross-examination when defence counsel Wapona Kita punched holes in his statements.

The witness’ statement has built a case around documentation that shows that the accused indeed received double payment of the same amount for the same work – a fact which the defence has not yet disputed.

Kita raised an objection when the witness referred to some documents that belong to the ADB – saying the witness needed not to speak for the ADB – which can ably have a representation in the matter.

According to Kita, in a lengthy cross-examination only reminiscent of the presidential elections case, which left Mwakilama sweating the double payment was just an error which was corrected such that the bank had no issue with the contractor.

Kita asked the witness to identify some communication where FISD had clearly informed ADB of the double payment and in the same (correspondence) proposed that the bank makes a deduction from remaining payment.

Mwakilama identified this communication and confirmed it to be true.

The defence counsel then wondered how it became fraud when the contractor had duly informed the financier and an agreement was reached to have the same resolved.

Put to Mwakilama if, with this evidence, he still considered it to be fraud – the witness was lost for an answer and had his eyes fixed on the state advocate Pirirani Masanjala as if begging for rescue. Kita joked about this – sending the presiding magistrate and the rest of the people in the courtroom into laughter.

At least this was a lighter moment in a tense court session where the witness, at one point, looked like trembling.

“You are looking at your lawyer? Don’t look at him answer my question” said Kita sounding authoritative.

Kita is among three lawyers representing the four FISD directors.

The others are counsels Gift Nankhuni and Burton Phiri who both sat next to Kita and repeatedly supplied him with some notes – typical of team work.

The accused Directors are; Moses Chirambo, Frank Mwenechanya, Kondwani Nanchukwa and Arthur Mpama. On top of the accused four there is Daudi Kaunda, an accountant in the Ministry of Agriculture, who is part of the case answering charges of forgery and conspiracy to commit a felony.

Kaunda is represented by two lawyers – Khwima Mchizi and Geoffrey Taumbe– making the total of defense lawyers to five.

In an interview with the press after the court session on Monday – Kita said they are satisfied with the progress on cross-examination which has clearly shown that there was no criminal elements in this matter.

“In fact we want the ADB to come and testify in this case and that will be the end of the matter. We want them to indicate if indeed the double payment was fraudulent or not. From the evidence we have we know that this issue of double payment was sorted out and the evidence is what we have shown in court” said Kita who also wondered why the state has not made an effort to have a representative from the Bank as a witness.

“Surprisingly the complainant is not the bank. If you go by the disclosures, It is police that is a complainant and an investigator of the same. We hope to see a witness from the Bank to make the case easier for us” added Kita.

State advocate Pirirani Masanjala said it would be difficult to bring a witness from the bank – but they will see what they can do.

Masanjala said they intend to amend the charge sheet to include FISD as an accused.

“It is FISD which received the payment so we will add them to the case apart from the directors themselves. We have more witnesses to parade. To us this is an important case ” said Masanjala after the court session on Friday.

The ministry of Agriculture, with funding from ADB, awarded the FISD a K2.4 billion contract to construct, rehabilitate and expand gravity-fed water supply systems in Ntcheu District.

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