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THE REPUBLIC
CORAM: HONOURABLE JUSTICE F.E KAPANDA
Nampota of Counsel for the State (ACB)Msisha SC of Counsel for the 8th Accused (GDC)
Nyimba of Counsel for 1st, 5th 6th and 7th Accused
PJS Chirwa of Counsel for 2nd and 9th Accused
Chalamanda of Counsel for 1st Accused (Rodrick Ibo Chizinga)
Kalaya of Counsel for 7th Accused ( Lighton Maganizo Phangire)
Place and Dates of hearing: Blantyre, 2nd October 1998, 3rd October 1998, 19th October 1998, 12th October 1998, 12th November 1998, 9th December 1998, 10th December 1998, 18th January 1999, 3rd February 1999, 29th march 1999, 12th April 1999, 26th may 1999, 27th July 1999, 16th August 1999, 17th August 1999, 14th September 1999, 15th September 1999, 16th September 1999, 21st October 1999, 28th October 1999, 14th December 1999, 6th March 2000, 8th March 2000, 17th May 2000, 19th May 2000, 24th June 2000, 25th June 2000, 4th July 2000, 16th October 2000, 17th October 2000, 30th October 2000, 31st October 2000, 31st October 2000, 1st August 2001, 12th September 2001, 26th may 2003, 28th may 2003, 29th may 2003, 30th may 2003, 12th November 2003, 14th November 2003 15th December 2003, 7th January 2004, 13th February 2004, 19th March 2004, 25th November 2004, 25th February 2005, 28th March 2005, 18th April 2005, 19th April 2005, 22nd April 2005 and 16th May 2005.
Date of Judgement:
May 2006
Kapanda, J:
INTRODUCTION:
The Anti-Corruption Bureau (the ACB) instituted these criminal proceedings against
a number of Defendants. Indeed, at the commencement of these criminal proceedings in 1998 there were nine Defendants. At the time
the prosecution’s case was closing there remained seven (7) accused persons. There are now three (3) criminal Defendants who
are still answering charges preferred by the State. The said three accused persons are; Rodrick Ibo Chizinga, Lighton Enos Maganizo
Phangire and GDC Holdings Limited (Hereinafter referred to as the 1st, 2nd and 3rd Accused respectively).
THE INDICTMENT:
There are varying counts preferred against the Accused persons herein. The said counts
in respect of each of the Defendants are as follows:
1st Accused (Rodrick Ibo Chizinga)
The State has charged Rodrick Ibo Chizinga with three offences under the Corrupt
Practices Act. It is the State’s allegation that all the three offences were committed at Mwanza. In the first count, he was
charged with the offence Corrupt Practices with Public Officer as provided for in Section 24 (2) of the said Corrupt Practices Act.
The second count relates to the offence of attempting to give gratification to public officer as is stipulated in Section 35 of the
Corrupt Practices Act. Lastly, the first Accused is indicated with the offence of misleading Officers of the Anti-Corruption Bureau
which is an offence created in Section 14 (b) of the Corruption Practices Act. The State alleges that the first two offences were
committed on or about the first day of September 1997, whilst the last offence is said to have been committed on 1st April 1998. As regards the first count of Corrupt Practices with Public Officer, the State alleges that the first Accused corruptly
gave gratification in the form of cash to Christopher Msinja, a Police Officer, for the said Msinja to forbear from conducting a
detailed check of foreign currency and unknown suspected individuals on GDC Holdings Limited’s foreign registered trucks.
Lastly in the third count, the first Defendant is accused of misleading the Officers of the Anti-Corruption Bureau. The State is alleging
that the first Defendant misled officers of the ACB by making fake statements namely; that GDC Holdings Limited was paying toll fees
for all its foreign registered trucks and that the contents of the memoranda the first Defendant was writing to his superiors were
false in material particular when in fact GDC Holdings Limited was not paying toll fee for all its foreign registered trucks and
that the contents of the memoranda the first Defendant was writing were in fact true.
2nd Accused (Lighton Enos Maganizo Phangire).
Lighton Enos Maganizo Phangire, herein after referred as the 2nd Defendant, stands charged with two offences under Section 24 (1) of the Corrupt Practices Act. The offences are alleged to have been
committed between the period of 1st April 1996 and 31st July 1998. Further, the particulars of offence indicate that the offences were allegedly committed at diverse places, to wit, Mwanza,
Blantyre and Balaka. Indeed, the 2nd Defendant is charged with two counts of Corrupt Practices by Public Officer. In the first count the state charges that the 2nd Defendant, at Mwanza Boarder and at Balaka, corruptly accepted from GDC Holdings Limited gratification in the form of cash amounting
to K234, 160.00 and entertainment in the form of parties. It is alleged that the said cash and entertainment were allegedly accepted
by the 2nd Defendant as an inducement for forbearing to carry out detailed weighing of GDC Holding Limited trucks and checking of payment of
toll fees in excess of U$220,000.00 by the said GDC Holding Limited. The State further alleges that the said weighing of trucks and
checking of payment of toll fees is a concern of the Road Traffic Commission.
Lastly, the second Defendant is alleged to have corruptly solicited from DGC Holdings Limited, at the premises, gratification in the
form of cash amounting to K234,160.00 as an inducement for him to forbear to carry out detailed weighing of GDC Holdings Limited
and checking of payment of toll fees in excess of U$220,000.00 by the said GDC Holdings Limited. Again the prosecution alleges that
the said weighting and checking of payment of toll fees is a concern of the Road Traffic Commission.
3rd Accused (GDC Holdings Limited)
GDC Holdings Limited is the 3rd Defendant in this Criminal matter. The State preferred four counts against the 3rd Defendant. The main counts are three and the fourth count is an alternative. In point of fact, in the first three counts in the charge
sheet, the 3rd Defendant is charged with the offences of Corrupt Practices with Public Officer’s provided under Section 24 (2) of the Corrupt
Practices Act and in the alternative count the offence preferred against the 3rd Defendant is the one of Official Corruption obtaining in Section 90 (b) of the Penal Code. The offences are said to have been committed
between 1st April 1996 and 31st July 1998 at Balaka and Mwanza.
In the first three counts the 3rd Defendant is alleged to have corruptly given gratification to Phangire in the form of cash amounting to K234,160.00 and entertainment
in the form of parties, to a number of officers, viz. Raison Enos Mwenitete, Lighton Enos Maganizo Phangire and Selwin Petros Simfukwe
and some unknown public officers, so that there could forbear from carrying out their respective official duties.
FACTUAL BACKGROUND
Institution of investigations
On the 17th of March, 1998 the Anti-Corruption Bureau received a complaint of alleged corrupt practices by GDC Holdings Limited (hereinafter
called “GDC”). The allegation was that GDC was bribing officers from, among others, Customs and Excise, Department of
Road Traffic Commission and Immigration at Mwanza border. It was further alleged that GDC was bribing the said officers so that its
foreign registered trucks enter Malawi without paying the necessary duties (hereinafter called “toll fees”).
Procedure at Mwanza Border
The following appears to have been established by the investigations that were conducted
by the ACB.
Customs
The Ministry of Transport and Communications was under authority to collect toll
fees in respect of all foreign registered truck entering the Malawi border. In this regard the Ministry of Transport and Communications
engaged the Department of Customs and Excise to undertake the collection exercise.
It would appear that
there were other players in the exercise. These were the Road Traffic Commission, the Malawi Police and the Department of Immigration.
As it were, the Police function was to check for foreign currency and unknown suspected foreign individuals crossing the border including those on GDC foreign registered trucks and
other trucks at Mwanza border. The Immigration department was charged with the responsibility of checking for passports and other
travel documents of those travelling on these trucks. The Road Traffic Commission was checking for the weights of those vehicles
and whether the trucks carried the necessary MOTC’s
Issuance of MOTCs
It is in evidence that when a foreign registered truck arrived at the border, personnel manning the truck were required to complete Ministry of Transport Certificates (hereinafter called “MOTCs”). The certificates, among other things, provided for a date of entry of the truck, the destination of the truck, the amount payable in toll fees and the registration number of the truck. A copy of each completed certificate would then be given to the truck personnel and another copy would remain at the border.
Arrangement of Payment of toll Fees by GDC
Payments were made by GDC in Dollars at the Customs Head Office in Blantyre. The
payment was recorded in a registrar that was maintained at the border by the Officer-in-Charge of Customs. Each time a GDC truck
crossed the border, the GDC personnel were preparing Toll Fees Control Sheets (hereinafter called the “TFCs”) enumerating
the list of trucks that cross the border. On the basis of the TFCs the Officer-in-Charge would then deduct from the register the
equivalent of the toll fees in the toll fee register. It was an outstanding instruction that as soon as the Toll Fees are depleted,
Customs officers should not allow GDC trucks.
Further, the state offered testimony to the effect that when the TFCs were presented
by GDC, the Officer-in-Charge of Customs at Mwanza was required to do a verification exercise and thereafter stamp and sign the TFCs.
Apparently, all TFCSs were signed by the Officer-in-Charge for Customs who at the material time was Mr. Mwenitete.
The North Bound Sheets
Once trucks entered the border an officer from GDC, Mr. Rodrick Chizinga, one of
the Defendants herein, was preparing a list of all trucks that had entered the border at the material time. The list was called North
Bound Sheets (hereinafter called NBSs). These NBSs were being sent to his Head Office. Further, GDC was also preparing the TFCSs
for presentation to Customs at the Border. Investigations disclosed that the TFCSs contained frequently fewer foreign registered
trucks, which had entered the border than those appearing on the NBS. The NBS were for internal use. In other words, there were discrepancies
between the TFCSs and the NBSs. The result was that it appeared that lesser Toll Fees shown as having been paid for the said foreign
registered trucks. Indeed, in the eyes of ACB lesser Toll Fee was discovered as having being collected by the Department of Customs
and Excise.
“The Make Plan documents”
There is evidence that suggests that after the TFCSs were prepared, Mr. Rodrick Chizinga
was preparing a hand written memorandum to the management of GDC, which was called “Make Plan”. The so called “The
Make Plan documents” indicated the number of trucks in respect of which Toll Fees had not been paid; the amount actually due
for payment; amount recommended for payment to public officers at the border and savings that would be realized thereby. In turn
monthly goodwill requisitions would be prepared for payment to officers of various departments at the border. The officers shown
on the document were those whose functions had to do with the crossing of GDC trucks at the border. Among them were Customs, Road
Traffic, Immigration and Police.It is said that as a result of the above practices, sums in excess of K8.6 million in Toll Fees were lost by Malawi Government between the period 1st April, 1996 and 31st July 1997 (see exhibit 51A and 51B). Moreover, it was put by the state that within the same period a so called goodwill in excess of K234, 160.00 was allegedly paid to public officials at the said Mwanza border.
The ACB further told this court that in the course of the investigations, Rodrick Chizinga told the Anti-Corruption Bureau officers that all Toll Fees due to be paid by GDC were paid and that information contained in the “Make Plan documents” was false. It is moreover the testimony of the prosecution that Rodrick Chizinga maintained that he made the payments because Chinthowa, who at that time was the operations manager but had died at the time when this matter was coming to court, promised him money.
The Defendants
The state, through the Anti-Corruption Bureau ((the ACB), preferred a number of counts
against the Defendant’s herein. At the commencement of there proceedings the ACB had wanted to prosecute some of the Defendants under some provisions of the Penal
Code of the laws of Malawi. The Court adjudged that the ACB had no mandate to prosecute for offences under the Penal Code. The Defendants
are now standing charged with offences provided for under the Corrupt Practices Act.
The state closed its case. It then remained for this Court to determine if there
were corrupt cases for each of the Defendants to answer. Of the nine Defendants there are now remaining seven (7) Defendants. The
other two Defendants are no longer standing charged with any offence. Mr. Harvey Kapoya Munthali is discharged on account of his
illness while Mr. Syprian Zulu is no longer a defendant due to death. Accordingly the Stae withdrew the cases against Harvey Kapoya
Munthali and Syprian Zulu.The Court had entered pleas of not guilty in respect of each of the remaining Defendants. For this reason, it then became necessary for the State to offer evidence in support of the charges preferred against the said remaining Criminal Defendants. The State called thirteen witnesses.
Acquittal of some Defendants
The Court has had the occasion to review the evidence adduced through these said
thirteen (13) witnesses. From the testimony of these witnesses, the following are the trite facts that the State based its case against
the Defendants:The State avers that GDC Holdings Limited corruptly gave gratification to public officers. Further, the ACB asserts that Rodrick Ibo Chizinga attempted to corrupt Police Officer at Mwanza Boarder. Moreover, the State says that Rodrick Ibo Chizinga mislead officers of the ACB and thereby committed an offence under the said Corrupt Practices Act.
As regards, the other Defendants, who were Public Officers, the record will show that the State attempted to demonstrate that these other Defendants received gratification from DGC Holdings Limited. The said gratification, so the evidence went, was said to have been in the sum of K234,160.00 cash and entertainment in the form of parties. The testimony did not show how much each one of them received as gratification. Suffice to say that the State put up a global figure of the said sum of K234,160.00 as the total sum that GDC holdings Limited is said to have given the said Public Officers at Mwanza Boarder.
The State further purported to show that Steve Marko Tsoka Banda, Harvey Kapoya Munthali and Syprian Zulu received gratification from Mwitha. I must say that there was no scintilla of evidence to prove that the above mentioned Defendants received any money from the said Mwitha. The witness the State called to prove this case retracted a statement he made to the ACB implicating the three Accused persons named above. The State then applied that he be treated as a hostile witness pursuant to the Criminal Procedure Evidence Code. Since the witness was treated as a hostile, unless the law informs this Court to disregard his evidence. Indeed, as I understand it, whatever he said in his testimony was not evidence at all in this Court. The above were the salient facts of the case by the State as obtained from the evidence on record. I was required to determine whether or not there was a prima facie case for the Defendants to answer. Indeed, at that stage of the proceedings the principle and only issue that was to be decided was viz whether there were charges for each, or any, of the Defendants to answer.
Consideration of the Issue
The State contended that there was a prima facie cases for each of the nine Defendants
to answer. The Defendants, through their Counsel, were of the view that the State had failed to establish a prima facie against each
one of them. In point of fact they submitted that they had no case to answer.
As I understand it, the position at law is that a prima facie case is one which a
reasonable Court properly directing its mind to the law and evidence could convict if no explanation is offered by a Defendant. Further, this Court has authoritatively put it that a submission that there is no case to answer could properly be made and upheld
where there has been no evidence to prove an essential element in an alleged offence or when the evidence offered by the State has
been so discredited as a result of cross examination or is so manifestly unreliable that no reasonable tribunal could safely convict
on it.Turning to the instant case, my finding was that the State had failed to establish a prima facie case against the following Defendants viz Steve marko Tsoka Banda,Raibon Enos Mwenitete, Selwin Petros Simfukwe and Tonnex Duncan Mphepo. In my Judgement the State had failed to prove an essential element of the corruption in respect of these four Defendants i.e receipt of gratification in the alleged sum of K234,160.00 by any of these Defendants. Indeed, there was no evidence to suggest that they got part of this money. For all there was to it the said good will money was not made to a particular Defendant or Public Officer in these proceedings. Indeed, the witness conceded that they did not find any evidence that any of the above mentioned defendants received the alleged sum of K234, 160.00 or nay sums of money at all. Actually, the testimony of the state witness to the effect that good will payments were made to these officers had been discredited in cross examination. In fact this Court held the view that the fact that payment vouchers said goodwill was going to Mwanza Customs or Immigration or to Mwanza Weighbridge did not mean that it must have been the Officers-in-Charge of the Departments concerned or a named public officer in the mentioned Departments received the money. The State should have offered more that tendering the payments vouchers or the paid cheques. No single witness testified to the fact that the aforementioned defendants received any or part of the alleged goodwill money. Moreover, there was no proof offered to the effect that as a result of the said goodwill payment and parties the Defendants failed to collect toll fees or weighbridge fees or that passengers on GDC vehicles had their passports processed quickly on account of the alleged bribes.
As regards the evidence of invitation to parties, this Court held the view that the same could not be characterised as a bribe. In
saying so I was alive to the strong submission by Mr. Msisha SC, that there was no evidence as regards how much was spent on each
invitee so as to be caught by the provision of the said Corrupt Practices Act. Further, the Court agreed with the submission that
since the value of the parties is not known it would not be possible to determine if the Christmas parties in relation to every invitee
went over the threshold necessary to qualify them as gratification and remove them from the definition of casual gifts.
By reason of the foregoing, it could not be said that the State had established a
prima facie case against Steve Marko Banda, Rainbon Enos Mwenitete, Selwin Simfukwe and Tonnex Duncan Mphepo. Consequently, this
Court acquitted Steve Marko Banda, Rainbon Enos Mwenitete, Selwin Simfukwe and Tonnex Duncan Mphepo of the offences of corruption
they were charged with.
Facts of the case in respect of the remaining Defendants.
As mentioned in the introductory remarks, there are now three Defendants remaining
who are answering various charges of offences preferred by the State. The remaining Defendants elected to testify in their respective
defences. It is now necessary that the Court should enumerate the facts of the case arising from both the testimony of State witness
and the Defendants. I propose to set out the facts in respect of each Defendant separately. The said facts in respect of each Defendant
as follows:
Rodrick Ibo Chizinga (1st Defendant)
The 1st Defendant is and was at all material times an employee of GDC Holdings Limited (the 3rd Defendant). The duty station of the 1st Defendant was Mwanza Border post. Further, it is not in dispute that the 1st Defendant was working as a Depot Supervisor for the said 3rd Defendant at the said Mwanza Boarder. He was the overall in-charge of operations at Mwanza Boarder but in particular his work involved
seeing to it that all the customs formalities in respect of GDC Holdings Limited registered trucks has been complied with at the
said boarder.
Purported corruption of Police Officers As already seen, the State alleges that Mr. Chizinga gave gratification to a Police Officer and that he attempted to give gratification to some named Police Officers based at Mwanza police Station. The said Officers, Mr. Msinja, was paraded before this Court to testify on this count. It was his evidence that sometime in September 1997, the 1st Defendant brought an envelope to him. The envelope, he further said, contained the sum of K1050.00 in amounts already apportioned to individual officers at Mwanza Police Station. Purported to testify, the Defendant denies giving an envelope to Mr. Msanja. However, he admitted giving an envelope to a certain Constable Tepeka, who was then based at Mwanza Police Station for on ward mission to the Officer in-charge (Mr. Msinja). Further, it is in evidence that the Defendant neither knew the contents of the said envelop nor made any enquiries as to what was in the envelope. Moreover, it is on record that the said envelop had been give to him by the late Mr. B. Chinthowa and it was sealed. He continued to say that he handed over the said envelop to a certain Woman Constable Tepeka and not PW5 one Mwakikunga that was referred to in his testimony.
Payment of toll fees: On misleading ACB Officers on payment of toll
fees.
As will have already been observed, the ACB purported to show that the 1st Defendant herein (Mr. Chizinga) misled its Officers. The State’s case is that Mr. Chizinga told ACB officials that all toll
fees, in respect of all vehicles belonging to his employees, had been paid when in point of fact some trucks were not in fact paid
for.The Defendant does not deny that he was responsible for the payment of toll fees. He further informed the Court that he would write reports on the said payment of toll fees and submit same to his bosses in Blantyre. However, the 1st Defendant denied that he lied to ACB Officers on the payment of the toll fees. Actually, on being show the northbound sheets, he admitted that although the vehicles appearing on such sheets did not appear on the toll fee control sheets that in itself did not mean that toll fees had not been paid in respect of the said vehicles. It was further put in evidence by him that the non-appearance was only in furtherance of a scheme devised by his immediate boss to defraud the employees, GDC. Indeed, it was offered in evidence by the 1st Defendant that some brands appearing on the North Bound Sheet do not appear on the toll fees control Sheet on orders from Mr. Benson Chinthowa, but that the non-appearance is no proof that the too fees had not been paid.
Finally, the 1st Defendant testified that although some trucks were not indicated on the control sheet as having paid toll fees, the truth of the matter is that such fees were paid. In this regard, the 1st Defendant said that the reliable documents to prove or disapprove this would be T10 TC3 forms and not toll fees control sheets. Moreover, it was his testimony that actually if the general receipts had been (or were) produced, they would have clearly shown that all the toll fees payments in respect of the trucks had been make in connection with the said trucks.
Lighton Enos Maganizo Phangire (2nd) Defendant
As was State evidence, the State has preferred two counts against the 2nd Defendant. It is well to point out that the State alleged that the 2nd Defendant corruptly accepted cash from GDC Holdings Limited amounting to K234,160.00 and that he got gratification from the said
GDC in the form of parties. The second count says that the 2nd Defendant solicited form GDC Holdings Limited the sum of K234,160.00.
The sum of K234,160
The records were that this very sum of K234,160 was the subject of charge against
the other Defendants in this matter. Indeed, it is the same amount that the State alleged was given to other Defendants in the very
same matter. These other Defendants were acquitted by this Court and the Court will later comment on the said acquittal. Further,
it is well to point that if it were to be said the prosecution never attempted to prove receipt of the said sum of K234,160 by the
second Defendant. If anything the Court purported to show that the Defendant must have been given K1,600 that had been drawn from
the petty cash by a certain Mr. Hendrey Mbendera, a former employee of GDC Holdings Limited. There was no direct proof of giving
since Mr. Mbendera told the Court that a certain Mr. Benson Chinthowa asked for this money when the 2nd Defendant come to the office of the said Mr. Mbendera. As it were the said Mbendera suspected that the said sum of K1,600 was meant
to be given to 2nd Defendant.Further, it is in evidence that the said Mr. Mbendera did not see money being given to the 2nd Defendant. Furthermore, the Court has ascectamed that the testimony of the State was to the effect that some alleged goodwill payment was being made to Balaka weighbridge where the 2nd Defendant was working together with other Officers. However, the payment vouchers which purportedly showed payment of goodwill to Balaka weighbridge does not show names of recipients. It is well to point that there is evidence on record to the effect that between 1996–1997 the 2nd Defendant had visited the offices of GDC Blantyre. However, the 2nd Defendant said that he was visiting a certain Mr. Sito tembo who was a mechanic at GDC and later brought a vehicle from him. The said Mr. Sito Tembo confirmed that he once worked for GDC and during that time the 2nd Defendant visited him to have a motorcycle repaired.
As stated earlier, it is the State’s case is that the 2nd Defendant, and others, was treated to Christmas parties. This, in the eyes of the State, was gratification. However, it must be pointed
out that there was no direct evidence of the 2nd Defendant having attended the said Christmas parties that were allegedly organised by GDC. Actually, the 2nd Defendant vehemently denied having attended the party that was held at Mwanza. He however admitted attending a Road Traffic Department
party held in Blantyre in 1992.
It is not in dispute that between 1996 and 1997, the dates in question in the two
counts, the 2nd Defendant was working at Balaka weighbridge. He was a weighbridge attendant under the Road Traffic Department. Further, there is
uncontroverted evidence that the 2nd Defendant was working at the said weighbridge under the supervision of a certain Mr. Majawa. Accordingly, he was not the overall
in-charge at the said Balaka weighbridge.
GDC Holding Limited (3rd Defendant)
As will be observed from the evidence on the record the following facts emerge:There is undisputed evidence that the 3rd Defendant is a limited liability company registered in Malawi. It is the State’s insinuation that GDC Limited devised a plan to evade payment of toll fees by corruptly paying public officers. Further, the prosecution’s witnesses attempted to show that the 3rd Defendant was in the habit of paying public officers in the departments of Customs and Excise, Immigration and Road Traffic to achieve the alleged evasion of payment of toll fees. Moreover, there was testimony to the effect that GDC organised parties for the said public officers as one way of corrupting them so that they do not collect toll fees or carry the detailed weighing of GDC’s vehicles. As regards payment of money to the said public officers, it is important to observe that the total sum of K234, 160 that was given as a global sum in respect of each of the said officers and no attempt was made to indicate as to how much each of the said officers allegedly received from GDC Limited. Furthermore, it is clear from the evidence preferred by the prosecution that the State is trying to show that toll fees, payable on foreign registered vehicles, in the sum of U$220,000 would have been lost due to the scheme that was allegedly devised by GDC Holdings Limited. However, there was no evidence that GDC Holdings Limited owned any foreign registered vehicles but there is some testimony to show that GDC Holdings Limited used to pay toll fees in respect of some vehicles.
I must point out that the 3rd Defendant offered evidence whose purpose and effect was to show that the so called good will payments were not sanctioned by it. Indeed, the testimony by the 3rdDefendant was that there was no policy to evade payment of toll fees and that it suspects that the so called “good will transactions” was a scheme that was created by GDC Finance Manager, Operations manager and General Manager, who colluded and stole money from it for their personal use. A certain Mr. Holmes appeared before this Court and said that he actually caused an investigation to be instituted which showed that the scheme was a creation of the 3rd Defendant’s Operations Manager. It was his further evidence that the investigation were never completed because ACB came and demanded to see the documents that have been tendered in evidence in this matter. He further stated that he suspected that the Finance manager, the Operations Manager and General Manager of GDC at that time had all colluded to steal money from GDC Holdings Limited.
Analysis
The first accused was charged with three counts of corrupt practices by public officers contrary to Section 24 (2) of the Corrupt Practices
Act; attempting to commit an offence of corrupt practices with public officers contrary to Section 35 of the Corrupt Practices Act
and misleading officers of the Anti-Corruption Bureau contrary to section 14 (b) of the Corruption Practices Act.
On the first count, the first accused was alleged to have corruptly given gratification
in the form of cash to Christopher Alex Msinja a Police Officer-in-Charge at Mwanza border for the said Msinja to forbear from conducting
a detailed check of foreign currency and unknown suspected foreign individuals on GDC foreign registered trucks at Mwanza border.
In the second count, the first accused was alleged to have attempted to give gratification
in the form of cash to Christopher Alex Msinja; one Lekani, Sergeant Kulumbazi, Constable Mwakikunga and Detective Constable Nkuka,
all Police Officers at Mwanza border as an inducement or reward for the said Police Officers to forbear from conducting a detailed
check of the foreign currency and unknown suspected foreign individuals on GDC foreign registered trucks at Mwanza border.
The above two activities were allegedly committed on or about the 1st day of September 1997 at the said Mwanza border.
The first accused was further alleged to have mislead officers of the Anti-Corruption Bureau by making false statements namely that
GDC was paying Toll Fees for all its foreign registered trucks and that the contents of the memoranda (Make Plan documents) were
false in material particular when in fact GDC was not paying the Toll Fees of all its foreign registered trucks and that the contents
of the memoranda above referred were in fact true.
Section 24 (2) pursuant to which the first accused has been charged provides as follows:-
“Any person who by himself, or by or in conjunction with any other person, corruptly gives, promises or offers any gratification to
any public officer, whether for the benefit of that public officer or of any other public officer, as an inducement to any matter
or transaction, actual of proposed, with which any public body is or may be concerned shall guilty of an offence”.
Under the said section 24 (2), the prosecution is expected to prove the following elements for an offence of corrupt practices with
a public officer to be established.
(a)
Did the accused person give gratification to a public officer?
(b)
Was such gratification given corruptly?
(c)
Was the gratification for the benefit of such public officer or any other person?
(d)
Was the gratification given as an inducement for the public officer to do or forbear to do something?
(e)
Was the thing forborne to be done in relation to a transaction a concern of a public body?