Defence Permanent Secretary, Stardy Mwale, has asked the court to refer his matter to the High Court to determine whether he can be granted a fair trial or not following an oath of secrecy he made whilst in defence.
In this matter, Mwale and five others pleaded not guilty to three counts of willful failure to comply with the law, applicable procedure or guidelines, relating to the procurement of the Gulfstream G650 Presidential jet.
Mwale, Isabel Wilima Chinji, Michael Obister Mbewe, Evaristo Sakala, Frank Hardy Sinyangwe and John Phiri pleaded not guilty in the first count while Mwale again pleaded not guilty to the remaining three counts.
When the matter came up on Friday at the Lusaka Magistrate Court before Chief Resident Magistrate Davies Chibwili, Mwale through his lawyer, Leon Lemba said he could not proceed with trial at the subordinate court on grounds that he cannot reveal some information he came across during his employment unless the oath was lifted.
Mwale, in his application, said when serving in government, specifically in the defence force, one needs to swear an oath of secrecy which was connected to the President.
“You cannot start divulging information or things that you come across during your employment,” he said.
His lawyers argued that they have been having challenges with preparing Mwale’s defence because of the secrecy of oath unless it is lifted from him.
“How can I defend my client if he does not tell me the whole story about the issue because he is on oath? Under the State Security Act, if he tells me, it’s an offence and both of us as a lawyer and accused person can be charged. That’s why we want the matter to be referred to the High Court for it to determine whether the accused would be granted a fair trial or not,” Lemba submitted.
He insisted that the court should refer the matter to the High Court for determination on whether the accused persons would be afforded a fair trial or not.
The state in response said the defence should make an application by way of summons and an affidavit.
It is alleged in the first count that Mwale, Chinji, Mbewe, Sakala, Sinyangwe and Phiri between March 1, 2017 and April 4, 2017 in Lusaka, being persons concerned with management and use of public revenue, as members of the Ministerial Procurement Committee for the Ministry of Defence, jointly and whilst acting together, without following tender procedure willfully failed to comply with section 52 (1) of the public Procurement Act No. 12 of 2008 as read with Regulation 113 of the Public Procurement.
Regulations, Statutory Instrument No, 63 of 2008 when they awarded contract no. NOD/MPC/024-17 for the Modernisation of Defence Forces to ELBIT Systems Limited without Bid Evaluation.
The court adjourned the matter to September, 27, 2023 for ruling.
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