Two of the seven convicts who were found guilty of defrauding the Central Medical Stores (CMS) of P21 million have approached the High Court, seeking an order for a permanent stay of prosecution on criminal charges that they are facing.
Appearing before Judge Key Dingake, Defence lawyer Enock Mazonde, informed the court that the state failed to prosecute Abraham Marumo and David Tumagolo within reasonable time.
The two are currently facing multiple corruption charges amounting to P4 million, allegedly obtained from Stanbic Bank in 2005.
Mazonde said that, constitutionally, the accused have the right to object to the trial because it is taking place five years after the alleged committal of the offense.
Mazonde asked the court to stop a trial before Chief Magistrate, Barnabas Nyamazabo because the state took almost five years without bringing the case to trial.
According to the defence lawyer the constitution of Botswana provides that a person charged with a criminal offence should be afforded a fair hearing within a reasonable time unless the case is withdrawn.
He said that constitutional rights have accordingly been contravened and said that despite being cautioned about the charges levelled against them in 2005, there was no action on the part of the prosecution until August 2010 when they were charged.
Mazonde said that the accused had not been able to acquire the services of an attorney as they had been imprisoned and he maintained that the delay has not been explained by the attorney general.
He told the court that the delay had prejudiced the accused persons and noted that their defence has been impaired because they are unable to remember factual details surrounding the alleged offence.
Mazonde further said that the inability to prepare their defence due to the inordinate delay occasioned on their cases by the prosecution constitutes real prejudice.
However, Judge Key Dingake ordered the state to pay Mazonde costs after failing it failed to oppose his application on a permanent stay of prosecution.
Dingake warned the defence lawyer that he should familiarize himself with the issue of permanent stay of prosecution because it is no longer what he termed a “Holy Script”.
The case was postponed to afford the state to respond to the application.