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THE State has requested the Lusaka High Court to allow it prosecute gold dealer Sedrick Kasanda and four of his co-accused for espionage in private.
Chief State advocate Nkumbiza Mumba said the National Prosecutions Authority intends to have the proceedings held in camera pursuant to Section 15 of the State Security Act Cap 111, on reasons that the testimonies of its witnesses may be damaging to the State.
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Kasanda who has been separately slapped with another charge of Fraudulent dealing with minerals is co-charged with Patrick Kawanu, State security officer Francis Makai Mateyo, Mahogany Air proprietor Dr Jim Belemu and KKIA police commanding officer,Robson Moonga.
Allegations in the matter are that Kasanda, Kawanu, Mateyo, Dr Belemu and Moonga on August 14, 2023 in Chongwe whilst acting together with unknown persons and without lawful excuse did acts which are likely to interfere with the necessary services of Kenneth Kaunda International Airport for purposes which are prejudicial to the safety interest of the Republic of Zambia.
Kasanda is on the same date alleged to have disposed of minerals with intent to defraud his former co-accused Micheal Adel Michel Botros, an Egyptian National.
The quintet denied the charges before judges Charles Zulu, Ruth Chibbabbuka and Situmbeko Chocho.
Mumba’s request was received with a backlash by the accused’s lawyers who wondered what the State was hiding yet the information from its witnesses, which it claims is confidential is already in public domain.
Kasanda’s lawyer Abraham Mwansa who protested being served incomplete depositions of the case indicated that he had not reviewed what the State intends to produce before Court.
He said the application was made in haste and was prejudicial to the accused.
He urged the Court to take judicial notice of the civil proceedings before the Economic and Financial Crimes Court, in which the State intends to forfeit the jet belonging to the Egyptian nationals in the gold scandal.
“The evidence they fear will prejudice the interest of the State has been made public by those proceedings which have been widely publicized and widely discussed,” He said.
“This particular application pursuant to Section 15 of the State Proceedings Act ought to be made by way of summons so that the State can pin point to such evidence which maybe prejudicial to the interest of the State.”
He asked for time to review the evidence or on the alternative the Court compels the State to file a formal application to allow the defence to respond.
Judge Zulu asked the State if it wished to make a formal application but indicated that her team would rely on the oral application as Section 15 of the State Proceedings Act does not provide for the mode of application.
Kasanda’s other lawyer Makebi Zulu said;
“Section 15 of the State Security Act does give power to the prosecution to make such an application, however the condition precedent is that they just show prejudice to the interest of the Republic. The State having refused to make a formal application, has not adduced evidence of prejudice.”
He said the prosecution cannot ask the Court to merely exclude the public and the press from attending the court proceedings based on evidence from the bar.
He said the Court cannot be left to speculate what evidence should necessitate the public or a specific group to be excluded from attending the court proceedings.
“It would be inconsistent with the law requiring that criminal proceedings be held in public in the absence of reasonable cause for excluding the public.”
Kawanu’s lawyer Mwila Chibiliti said Mumba has not stated whether all the witnesses will be heard in camera or it’s just part of the proceedings.
He said the witnesses statements availed to him do not indicate any prejudicial information to the State.
The underlying principle in criminology is that justice in criminal matters is for them to be held in public, unless there are compelling reasons why there must be a departure from that established principle,” submitted Mwila.
“Sitting in camera is not designed solely to serve individuals from embarrassment or concealment of facts. The public want to know what happened at the airport and why is my client being charged with Espionage.”
Mateyo’s lawyer a Mr Muyambango asked the Court to decline the application as it has tried capital offences like treason and espionage in the past in open court and the State has not specified the prejudicial information.
Martha Mushipe who is representing Dr Belemu said the State had ambushed the defence with the said application, as it has failed to prove why the proceedings should be held in camera.
“Criminal proceedings are never heard in camera although section 15 does allow such an application but it has a condition precedent. Allowing the proceedings to be in camera would be a great injustice to the accused. We humbly request that the application be dismissed with the contempt it deserves,” she said.
And Moonga’s lawyer who complained of his client being harshly judged in public re-echoed other lawyers’ sentiments.
In reply Mumba said providing evidence to the prejudicial information defeats the purpose of the application and would render it an academic exercise.
“The particulars are clear and the accused can only defend themselves in the absence of the public. While power belongs to the people, this court should protect the people where conduct maybe prejudicial to the same people,” said Mumba.
Judge Zulu adjourned the case to November 20 for ruling and hearing of bail applications.
By Mwaka Ndawa
Kalemba November 16, 2023.
