Hearing in the case where four directors at FISD are accused of defrauding government has started today with a gruesome cross-examination which left the state’s first and key witness sweating, and, in most cases without answers on questions based on his own testimony.
The FISD directors were arrested in November last year but were only formally charged in July this year for receiving double payment for the same work from a public project financed by the African Development Bank (ADB).
Over a year after the arrest – hearing started today with the state parading the first witness Mr. Moses Mwakilama who works for the project implementation unit whose testimony dwelt on how the payment system works under this project where FISD was contracted to do some work.
Mwakilama based his testimony on communication between their office and FISD as well as ADB which was making payment directly to the contractor based on work done.
While Mwakilama sounded knowledgeable and competent – he was exposed during cross-examination which lasted for about three hours. One of the defense lawyers Wapona Kita was at his usual best punching holes in the witness’ statement.
The witness’ statement has built a case around documentation that shows that the accused indeed received double payment of the same amount for the same work – a fact which the defense has not yet disputed.
Kita raised an objection when the witness referred to some documents that belong to the ADB – saying the witness needed not to speak for the ADB – which can ably have a representation in the matter.
According to Kita, in long cross-examination reminiscent of the presidential elections case, the said double payment was just an error which was corrected such that the bank had no issue with the contractor for such errors do happen.
Kita asked the witness to identify some communication where FISD had clearly informed ADB of the double payment and in the same (correspondence) proposed that the bank makes a deduction from remaining payment.
Mwakilama identified this communication and confirmed it to be true.
The defense counsel then wondered how it became fraud when the contractor had duly informed the financier and an agreement was reached to have the same resolved.
Put to Mwakilama if, with this evidence, he still considered it to be fraud – the witness was lost for an answer and had his eyes fixed on the state advocate Pirirani Masanjala as if begging for rescued and Kita joked about – sending the presiding magistrate Florence Msekandiana and the rest of the people in the courtroom into laughter. At least a lighter moment in a tense court session where the witness, at one point, looked like trembling.
“You are looking at your lawyer? Don’t look at him answer my question” said Kita sounding authoritative as someone who is home.
Kita is among three lawyers representing the four FISD directors.
The others are counsels Gift Nankhuni and Burton Phiri who both sat next to Kita and repeatedly supplied him with some notes – typical of team work.
The accused Directors are; Moses Chirambo, Frank Mwenechanya, Kondwani Nanchukwa and Arthur Mpama.
On top of the accused four there is Daudi Kaunda, an accountant in the Ministry of Agriculture, who is part of the case answering charges of forgery and conspiracy to commit a felony.
Kaunda is represented by two lawyers – Khwima Mchizi and Geoffrey Taumbe– making the total of defense lawyers to five.
In an interview with the press after the court session, Kita said they are satisfied with the progress on cross-examination which has clearly shown there was no criminal elements in this matter – but the payment, which has been recovered, was just an error.
“In fact we want the ADB to come and testify in this case and that will be the end of the matter. We want them to indicate if indeed the double payment was fraudulent or not. From the evidence we have we know that this issue of double payment was sorted out and the evidence is what we have shown in court,” said Kita who also wondered why the state has not made an effort to have a representative from the Bank as a witness.
“Surprising the complainant is not the Bank if you go by the disclosures. It is police that is a complainant and an investigator of the same. We hope to see witness from the Bank to make the case easier for us,” added Kita.
State advocate Pirirani Masanjala said it would be difficult to bring a witness from the bank – but they will see what they can do.
He said the state has six witnesses to prove its case and that it will amend the charge sheet to include FISD as an institution as a defendant in the case.
“It is FISD which received the payment so we will add them to the case apart from the directors themselves.”
“So we are ready to parade one more witness otherwise if one witness has taken us more about five hours we cannot bring two in just one afternoon,” said Masanjala.
The ministry of Agriculture, with funding from ADB, awarded the FISD a K2.4 billion contract to construct, rehabilitate and expand gravity-fed water supply systems in Ntcheu District.
