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Jailed Kabanshi leaves leaves ‘it up to God’

JAILED former minister of community development and social services Emerine Kabanshi has left her fate to God.

“I have nothing to say, I leave it up to God,” Kabanshi told The Mast after she was convicted and sentenced to two years simple imprisonment by the Lusaka Magistrates’ Court on two charges of willful failure to comply with the law, applicable procedure or guidelines relating to procurement for the social cash transfer programme.

Asked if she was government’s sacrificial lamb in the SCT programme scandal in order to save face to the donors, Kabanshi said, “I’m not going to answer you, just leave me alone.”

In handing down sentence, chief resident magistrate Lameck Mwale, who is now High Court judge, said it was aggravating for Kabanshi to put her interest first when the vulnerable who were the beneficiaries of the social cash transfer funds did not receive the money.

Kabanshi extended the scope of coverage of the social cash transfer programme by including three provinces and two districts on the list of beneficiaries and by re-engaging Zampost as the payment service provider for the SCTF after its contract was terminated.

The court had heard that one of the beneficiaries had lost her life in trying to access the funds when a canoe capsized.

It was reported that Zampost did not pay beneficiaries of the social cash transfer programme at designated pay points as it could arrive late and leave instructions that beneficiaries travel long distances to collect the money at Boma offices.

The amounts that the beneficiaries were receiving were less than what they were entitled to.

The court also heard that following numerous complaints against Zampost for breaching the contractual guidelines, the Ministry of Community Development and Social Services terminated the contract, but Kabanshi directed that the decision to terminate the said contract be rescinded and Zampost should be reinstated with immediate effect.

Finland, Sweden and Ireland who were the donors of the programme were forced to withdraw funding due to misappropriation and the manner in which Zampost disbursed the money to the intended beneficiaries.

In her defence, Kabanshi, who is former Luapula Constituency member of parliament, accused Alex Ndhlovu, the then acting permanent secretary in the Ministry of Community Development and Social Services of re-instating the contract between Zampost and the ministry for the disbursement of the social cash transfer funds following authorisation from the Attorney General.

Kabanshi claimed that she did not participate in the restoration of Zampost’s contract with her ministry as the said contract was terminated without her consent.

She said it was the duty of the permanent secretary, who was the controlling officer, to ensure that laid down procedure was followed.

However, magistrate Mwale found that notwithstanding the challenges, Zampost was facing, ministry officials were directed to extend the scope of works by adding three provinces – Muchinga, Northern and North Western and the two districts on the Copperbelt – Mpongwe and Lufwanyama.

He found said that the disbursement of funds to Zampost to include the three provinces and two districts started without following the required procurement guidelines and procedure or amending the initial contract between the parties and the anomaly was only rectified by an addendum in the contract.

Magistrate Mwale said owing to the unsatisfactory performance of Zampost in executing the contract, technocrats in the ministry decide to terminate the contract through a notice of termination dated August 2, 2018 by the then PS Leah Mutale.

“Upon learning the termination of the contract, Kabanshi was incensed and immediately called for a management meeting and directed the immediate rescission of the decision to terminate the contract and effectively reinstated Zampost’s contract without any further delay and the same is supported by the minutes of the meeting held in the accused’s office on August 8, 2018,” he said.

“Kabanshi directed the permanent secretary to immediately write to the provincial social welfare officers to transfer the funds for the beneficiaries to Zampost immediately and not to pay point managers. Acting on the directives by Kabanshi, the acting PS Howard Sikwela wrote a letter to Zampost rescinding the decision at the instructions of Kabanshi.”

The court said the immediate re-engagement of Zampost after termination of the contract did not follow procedures as required by the public procurement Act no.12 of 2008.

Magistrate Mwale said day-to-day and supervisory functions of the ministry was the responsibility of the permanent secretary who was the controlling officer.

He noted that ministers were constitutionally responsible for the conduct of business in their ministries and were responsible to the President for the overall supervision for administration and management of the ministry.

“Ministers are constitutionally responsible for the conduct of their ministries and the position is exemplified in the cabinet handbook. I find that the functions of Kabanshi as minister concerned the administration and management of the ministry,” magistrate Mwale said.

“The facts overwhelmingly show that Kabanshi directed the PS and other technocrats in the ministry on two occasions that funds meant to pay beneficiaries in the areas that were not covered in the contract that was meant to be executed between the ministry and Zampost and rescinded the decision to terminate the contract for Zampost.”

He noted that the convict’s orders were to be carried out immediately.

He said even if one argued that the said directives were to be carried out by the PS and other technocrats in compliance with the law, there was no time for the technocrats to follow the law and applicable procedure.

The court found that Kabanshi’s directives were specific and that she voluntarily and intentionally overlooked procurement procedures because some technocrats were retired in national interest while some were suspended and transferred and officers in her ministry were working in fear and were not able to make independent decisions.

Magistrate Mwale said Kabanshi was exerting overbearing influence on the technocrats in the ministry as they would have followed procedure.

“One wonders why Kabanshi insisted on re-engaging Zampost as a service provider when there was overwhelming evidence that it had failed to perform the contract. Zampost used funds meant for beneficiaries to buy vehicles for administrative use,” he said.

Magistrate Mwale refused to consider Kabanshi’s statement that she was not involved in the re-engaging of Zampost because the evidence on record showed that the she actively and fully participated in the engagement of the service provider right from the beginning.

“I find that the accused committed the two offenses that she is charged with and I find her guilty of the offense of willful failure to comply with the law and applicable procedure or guidelines contrary to section 32(2)(b) of the Anti Corruption Commission Act no.3 of 2012 the Laws of Zambia and I convict her accordingly,” magistrate Mwale said.

ACC prosecutor Daniel Ngwira indicated that Kabanshi was a first offender.

In mitigation, Kabanshi’s lawyer Katindo Mwale said his client was a first offender and deserved the court’s leniency.

He said that she was a family woman and breadwinner and the court takes the circumstances into consideration and exercises maximum leniency.

But in his judgment, magistrate Mwale said although Kabanshi was a first offender who deserves the court’s leniency, he was of the view that the offense she committed was a very serious offense which attracts a custodial sentence of up to 14 years.

“I have considered the circumstances under which the offense was committed were aggravating, particularly where the convict uncompromisingly insisted on re-engaging Zampost when it was clear that the vulnerable people who were the intended beneficiaries of the programme were not receiving the funds,” magistrate Mwale said

He ruled that what was further aggravating was that Kabanshi’s conduct in advancing her enterprise had some technocrats in the ministry retired in national interest when they meant well to the ministry.

“I am of the view that there is need to set an example and deter would be offenders and those who may be entrusted with the discharge of public functions to desist from such conduct,” said magistrate Mwale. “I therefore sentence the convict to 24 months simple imprisonment effective today. Leave to appeal within 14 days is granted.”

The composed Kabanshi who seemed unconcerned with the jail term imposed on her by the court, focused on removing her gold jewelry pieces, classic overcoat, and heels in preparation to go to prison.

As she was being led to the vehicle en-route to Lusaka Correctional facility commonly known as Chimbokaila, the elegant Kabanshi, whose VX remained deserted in the car park, preferred a classic car to an old Hilux, in order to meet her standards.

In the recent past, the Anti Corruption Commission is the only law enforcement agency that has set standards to ferry convicts to prison in classic cars instead of the prison truck known as Kasalanga.

“Victor (ACC officer) emotoka wala ntwalamo iyi awe ndefwaya iya blue (is this the vehicle (Hilux) you will use to take me to prison I need the blue one (decent vehicle),” said Kabanshi.

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