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Former presidential economic advisor, Hibeene Hendrix Mwiinga, has opposed an appeal by the Anti-Corruption Commission (ACC) in the High Court, arguing that the State’s attempt to overturn his acquittal on corruption-related charges is incompetent and contrary to the law.
Mwiinga, his wife Mercy Mwenda, and son Hakaintu Mwiinga were acquitted by the subordinate court on 72 counts, after the court ruled that the prosecution had failed to provide sufficient evidence to sustain the charges.
The allegations against the trio included possession of property reasonably suspected to be proceeds of crime, failure to keep proper books of accounts, and failure to furnish income tax returns.
They were accused of unlawfully acquiring properties, vehicles and funds totalling K26.3 million and US$566,000. A fourth accused, Hechikay Farms Limited, was convicted on one count of failing to maintain proper business records.
Unhappy with the decision, the ACC appealed to the Economic and Financial Crimes Division of the High Court, arguing that the trial court erred in law when it acquitted the respondents on grounds that the State had failed to establish reasonable suspicion that the assets in question were proceeds of crime.
The Commission is seeking a reversal of the acquittal and entry of convictions.
However, in their response, Mwiinga and the co-respondents argue that the appeal is legally defective and violates Section 321A of the Criminal Procedure Code (CPC).
They contend that the law only allows the State to appeal an acquittal on points of law or where a decision was made in excess of jurisdiction, and not on issues relating to the assessment of evidence or findings of fact.
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They argue that the ACC’s grounds of appeal are based entirely on dissatisfaction with the trial court’s evaluation of the evidence—amounting to an appeal on facts, which the CPC does not permit the State to pursue.
“Having viewed the grounds of appeal, we have noticed that the said grounds offend the provisions of the Criminal Procedure Code, Chapter 88 of the Laws of Zambia. We thus submit that the appeal is incompetent as it offends Section 321A of the CPC,” the respondents submitted.
They further argued that only a convicted person was entitled to appeal on both facts and law, a right that does not extend to the State.
On the merits, the respondents insist that the ACC’s appeal lacks substance, stating that the trial court did not shift the burden of proof onto the State but rather questioned the quality and adequacy of investigations.
They maintain that the prosecution failed to establish reasonable suspicion based on articulable facts as required under the Forfeiture of Proceeds of Crime Act No. 19 of 2010.
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