Finance Minister Ken Matambo last week launched a fierce battle against the corruption charges that were recently laid against him by the Directorate of Public Prosecutions, arguing that the case should be dismissed as the DPP has no prospects of convicting him.
Through his lawyers, Parks Tafa and Lawrence Khupe, Matambo filed an exception application before Village Magistrate Lenah Mokibe-Oahile asking the court to quash the charges so that he would not have to plea for a charge which does not meet the requirements to lead to a trial.
“The charge sheet does not reflect the offence that Matambo allegedly committed. These charges are frivolous and unmeritorious. This is a malicious prosecution against Matambo,” said Tafa.
Matambo is accused of failing to declare his interest in a company called Tuwana Construction, which had dealings with Botswana Development Corporation, of which Matambo was Chief Executive Officer. At the time, Tuwana was said to be building a house for Matambo in plot 2433, Extension 9.
Tafa argued that Section 144(1) of the Criminal Proceedings and Evidence Act and Section 3 of the Constitution protect Matambo’s right not to be put through an unnecessary trial.
He said Matambo should not suffer unnecessary reputational damage, pain and suffering, and bear costs of an unnecessary lawsuit, only to find that the charges were baseless and that the prosecution had no prospects of a conviction.
He faulted the state for failing to show how Matambo or a member of his family had any interest in Tuwana, and whether Matambo failed to disclose the nature of such interest.
“One wonders how an innocent victim, a Minister of Finance for that matter, would be unnecessarily dragged through the mud like this. We submit that the prosecution has been less that honourable in their duty to apply their mind before charging Matambo,” said Tafa.
The defence filed a request for further particulars in July, which Tafa argued will be considered to be part of the charge sheet, as per Section 146(2) of the CPEA. In the further particulars, the state argued that Matambo should have disclosed his interest in Tuwana to the BDC tender committee, as he sat on the meeting at which Tuwana’s bid to deal with BDC was discussed.
It however emerged that Matambo did not in any way influence or attempt to influence the adjudication process and the eventual awarding of the tender. Documents from the Registrar of Companies also show that neither Matambo nor any member of his family have ever been directors or shareholders of Tuwana.
In September 2004, Fair Dimension, a quantity surveying and engineering company that had been engaged by Matambo, awarded the tender for the construction of his house to Tuwana. The house was financed with a P1 million loan from BBS. The Tuwana tender was valued at P1.09 million, and the project was to be finished within 30 weeks. Tuwana declared the house partially completed in August 2005 and handed it to Matambo. In April 2009, Matambo refinanced his BBS loan with Standard Chartered, who cleared off the BBS loan with a P991 000 cheque.
When responding to the exception application, State Counsel Pascal Mhandu said the court should be preoccupied with establishing whether the charge sheet as served on Matambo discloses the nature of his offense and provides him with enough evidence to be able to understand the nature of the case against him.
“This is a simple case. Matambo failed to declare his indirect interest in Tuwana when he knew that his employer, BDC, was preparing to do business with them,” he said.
He differed with Tafa, saying further particulars should not be used as part of the charge sheet, but only to correct defects in the charge sheet. He accused the defence of trying to be the jury, and unreasonably refusing to go through the motions of a trial.
“The accused is delivering a verdict unto himself and trying to usurp the powers of the court,” said Mhandu.
He said there are no grounds on which the court can decide that the prosecution’s case is weak as no evidence and no witnesses have been presented. He urged the court to uphold its duty of adjudicating and interrogating evidence, and avoid a situation where evidence would be led by the defence.
“These people are seeking an acquittal under the guise of an exception. The prosecution should be allowed to lead its evidence, and the defence can apply for no case to answer at a later stage,” said Mhandu.
Magistrate Mokibe-Oahile will deliver judgement on the application on November 30th. If the exception is granted, the charges against Matambo will be quashed and he will walk away a free man.