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State lawyers in an appeal case against Balaka North MP Lucius Banda in the Supreme Court have asked the highest court to order a retrial or uphold the conviction he was given in August last year.
The lawyers on Monday submitted nine grounds before a panel of three judges: Michael Mtegha, James Kalaile and Atanasio Tembo.
The appeal is against the freedom the High Court gave Banda after he successfully appealed against the conviction and the 21-month sentence the Zomba Magistrate’s Court handed him on August 31.
Banda was convicted of uttering a false document (MSCE) and of giving false information to a person in the public service when he wanted to contest for the parliamentary elections in 2004.
But the High Court quashed the conviction and consequently set him free after he had served two months at Zomba Maximum Prison.
High Court judge George Chimasula Phiri observed that the sentence was excessive and shocking. He also said it was wrong in law and practice to mete out the 21-month sentence to a first offender.
But a team of four state advocates argued that the High Court judge erred in holding that the State had to prove that the words “photocopy of my MSCE certificate” were said by Banda to prove the offence of giving false information to a person employed in public service.
“The learned judge erred in law in failing to distinguish the effect of the right to remain silent where the accused is represented by counsel who is equally objecting and cross-examining during prosecution’s case and where the accused is not represented,” submitted Bernadetta Ng’ong’ola.
The State also submitted that the judge erred in law in allowing new issues on appeal pertaining to admissibility of documentary evidence when such matters should have been arisen during trial.
It further added that the judge erred in acquitting Banda when the evidence disclosed a case against him in respect of the offences charged.
“It is the appellant’s prayer to this honourable court that the order High Court in acquitting the respondent (Banda) herein be set aside and uphold the lower court’s conviction. In alternative, if this court finds there was a failure of justice in the lower court, it should order a retrial,” submitted Ng’ong’ola.
However Banda’s lawyers: Viva Nyimba, John Gift Mwakhwawa and Meyer Chisanga vehemently objected to a retrial.
Chisanga said the evidence the state submitted in court failed short of required standards to prove a case.
“It is not the position at law that if the accused (Banda) exercised his right to remain silent, [then] the position is that he is guilty. I don’t agree with plea on retrial. It is my view that there is no authority to order retrial. The issue of retrial is based on a question of law which has not come before you,” said Chisanga.
Mwakhwawa submitted that Banda was not accorded the right to fair trial because submissions the court ordered from both the defence and the prosecution were not served on Banda.
The court has reserved the date for the ruling.
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