THE LUSAKA High Court has overturned a two years jail sentence against former Zambia Consolidated Copper Mines chairman and chief executive officer Francis Kaunda and Access Financial Services director Faustin Kabwe on allegations of abuse of office and conspiracy to defraud.
Delivering judgment yesterday, High Court judge Mr Justice Mwiinde Siavwapa sitting with Lady Justice Florence Lengalenga and Lady Flugence Chisanga set aside the two year jail sentence from the Lusaka Subordinate Courts and acquitted the two appellants.
Justice Siavwapa said the learned trial magistrate could not have come to the conclusion that Mr Kaunda and Mr Kabwe conspired to sell the school when they had no mandate for such an act.
This was in a matter in which the two appellants Kabwe as first appellant and Kaunda as second appellant, applied against their conviction and sentences on one count of abuse of authority for Mr Kaunda, and were both charged with conspiracy to defraud on the second count, and their subsequent sentence to two years each.
The two applied to the High Court against their two years jail sentence on the two counts on the alleged sale of Ndola Primary School to Ndola Trust School, and alleged conspiracy to defraud ZCCM by arbitrarily offering Ndola Primary School to Ndola Trust School, an act said to be prejudicial to the interests of the Government.
The High Court Justices said the trial magistrate failed to properly evaluate the prosecution and defence in the matter, stating that he would have found that Mr Kaunda did not sell the school as he did not have such mandate.
“Consequently, the learned trial magistrate would not have come to the conclusion that the appellants conspired to sell the school to a fictitious entity. At best, conspiracy, if any could only be between ZCCM and the trustees.
“That finding would, however, be at variance with the law as the owner cannot conspire to defraud self. It is, therefore, our judgment that this appeal succeeds in both counts” he said.
The Judges said on the law on conspiracy, the learned trial magistrate drew a wrong conclusion from the facts that because the two knew each other or were business partners, meant that they could coincide in playing a role in an unlawful transaction, saying that there was no proof to that effect.
He charged that there was no proof that the two ever discussed the sale of the school, or that Mr Kabwe had any role in the ZCCM privatisation process.
In defence, Mr Kaunda had stated that it was not true that he conspired with Mr Kabwe to sell the school without the approval of the owners who were ZCCM.
Mr Kaunda denied that he arbitrarily offered the school because ZCCM assets had to be sold off by ZCCM themselves through the negotiating team.
Justice Siavwapa explained that the crime of conspiracy rides on an agreement by the conspirators and it was the agreement which constituted the offence rather than the execution of the agreement.
The two had argued in their defence that the trial magistrate erred in law and in fact when he held that the second appellant was a public officer, and that the second offender abused his authority of office in the matter.
They also argued that the trial magistrate erred in law and in fact when he held that the school was sold to a fictitious entity, and also when he convicted Mr Kaunda of conspiracy to defraud ZCCM.
The three judges, however, have granted the right of appeal in the matter to an appropriate higher court by reason of public interest.