The High Court in Zomba has upheld the State’s application to sentence cashgate convict Osward Lutepo before the State can confiscate his property and benefits obtained from proceeds of money laundering and defrauding government a sum of K4.2 billion between the months of April and October 2013.
Presiding Judge Redson Kapindu differed with the defence counsel Osward Mtupila that confiscation of properties and proceeds obtained through money laundering should come first while sentencing should come second for the Judge to consider when sentencing the convict.
Kapindu gave six grounds to arrive at his decision among the list hinted on Section 51 (2) of Money Laundering, Proceeds of Serious Crimes and Terrorist Financing Act of 2006.
He said the legislation gives the court options either to sentence the convict or defer confiscation of properties.
The Judge emphasised that under the Act, sentencing deals with punishing the person for the crime committed in money laundering while confiscation deals with taking away properties and proceeds obtained through money laundering.
However, in his judgement, Kapindu asked the State to choose an option it considers fit in recovering its properties.
The Judge through his ruling gave two options either for the State to bring a confiscation or pecuniary order because the two have different implication towards the crime under hand.
In the same ruling, the court has also ordered Standard Bank Limited to furnish the court with cheque images transacted by Lutepo’s two companies O and G Constructions Limited and International Procurement Services as part of evidence in the post conviction hearing procedure within seven days.
During the court proceedings which took almost three hours, both lawyers were seen conferring while the Judge kept reading his ruling and the convict could be seen at times sharing notes with his counsel.
After reading the ruling the Judge asked the lawyers to respond to his ruling in which the State through Director of Public Prosecutions Mary Kachale said both teams needed more time to digest the ruling.
“So as the State, we need to seriously consider because a confiscation order you only attach the properties, but sometimes you can find some people squandering the money instead of buying the properties. In that case when you can’t trace the properties and as long as you know how much money they had, you ask for an order (pecuniary order) to say this person should pay back this money which they benefited from [the crime],” said Kachale in an interview after the court ruling.
In the case at hand Kachale said the State needed to seriously consider which decision it should take adding that most of the convict’s properties are under dispute.
Mtupila agreed with the State saying the convict wanted to restitute the properties hence more time will save the situation.
The case has since been adjourned to Friday, August 7.
“The ruling is beneficial to the jurisprudence of the Malawian legal system in the sense that previously we did not know what is supposed to be happening where one has been convicted,” Mtupila said.
Kapindu then ordered that sentencing will be done while confiscation orders can be postponed for the next 60 calendar days.
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