This is a case in which Banda is charged with two counts of corrupt practices and concealing gratification of motor vehicles valued at US$180,000 received from a Chinese company.
In delivering his ruling yesterday, Principal Resident Magistrate Obbister Musukwa referred the matter to the High Court saying that there were constitutional issues which are supposed to be determined that are beyond his jurisdiction.
Mr Musukwa said without looking at the cogency of the evidence, there appears an arguable case which he cannot determine.
He said there appears to be a conflict between Banda’s rights to a fair trial as guaranteed by the law and the powers of the DPP to prosecute the matter in line with law.
Mr Musukwa said these are constitutional issues and that he has no jurisdiction to interpret constitutional issues.
Mr Musukwa wants the High Court to determine where the line is drawn between the accused person’s rights to fair trial as envisaged by Article 18 (2) of the Bill of Rights of the constitution.
He also wants the High Court to determine the power of the DPP to prosecute the matter where it appears on the face of it to conflict with an accused person’s right to fair trial.
Mr Nchito has asked the court to reject Banda’s application to raise preliminary issues as it was aimed at delaying the proceedings.
Banda, through his lawyers, in response, said that he was uncomfortable with the DPP handling his case due to the alleged grudge against him.
Banda said it was a matter of public policy and a rule of natural justice that one should not be a prosecutor and judge hence the reason for the DPP to recuse himself claiming that the grudge against him emanated from issues surrounding the defunct Zambian Airways.
Banda said the proper thing to do in such a case would be for the DPP to declare interest and as a matter of public policy ask the Attorney General to give directions over the matter.
“That the circumstances of this matter fell within the ambit of `any other cause’ and the DPP should have stepped aside whilst someone was appointed to deal with this matter as stated by Article 57 of the Constitution reads,” Mr Banda said.
Banda said the DPP did not point out which particular rules were infringed and which paragraphs violated any such rules if he recused himself from handling the matter and as such should not be relied upon.
“We, therefore, submit that having failed to apply for any particular paragraphs of the affidavit to be expunged, the affidavit in its entirety must stand in the absence of any contrary evidence on record,” he said.
Banda said this was a clear infringement of the right to fair hearing and the right to be afforded adequate time and facilitate for preparation under Articles 18(1) and 18 (2) (c) of the Constitution of Zambia.
Zambia Daily Mail