Batatawala, others reject ACB charge sheet amendment

Businessperson Abdul Karim Batatawala and three others have described the Anti-Corruption Bureau’s (ACB) application to amend a charge sheet deep into the trial as incompetent and a serious breach to fair trial and want it dismissed.

Through their lawyers, Batatawala, alongside former Department of Immigration and Citizenship Services chief immigration officer Elvis Thodi and two others have filed their response to the court in a case they are accused of conspiracy to defraud and money laundering, among other charges.

The bureau, after parading eight witnesses, in September made the application to amend the charge sheet by bringing new counts and making new disclosures in the form of sworn statements recorded in August when the trial was underway.

But objecting to the charge sheet amendment before Blantyre senior resident magistrate Martin Chipofya in Blantyre on Friday, the lawyers representing Batatawala, Thodi, Immigration’s commissioner responsible for operations Fletcher Nyirenda and deputy director Limbani Chawinga said the bureau’s application, if allowed, would subject their clients to unfair trial.

Alexious Nampota, one of Batatawala’s lawyers, said the application for amendment of the charges was incompetent because it does not comply with the provisions of Section 151 (2) of the Criminal Procedure and Evidence Code.

He said the bureau recorded statements from additional witnesses as late as August when the trial was well underway, arguing allowing this application would be the same as allowing the State to do  this every time they feel their case is collapsing.

Nampota feared the State would keep on doing this in contravention to the law and the case would not come to an end as their client would be compelled to recall State witnesses who had already been cross-examined.

He said the law disallows charging an accused person with more than six counts except in exceptional circumstances but their client, Batatawala, is facing up to seven counts from the same facts.

Nampota said: “This is not about prosecution but persecution of the accused. Let the case choose a few counts and leave out the rest. This flouts the right to fair trial to bring this application now.

“Just in August this year, statements of witnesses were recorded when trial was on. This runs in the face of a right to fair trial. The court should not allow [the new] disclosures that should have been made at the beginning of the trial.”

But ACB, represented by Imran Saidi, insisted their application was competent and asked the court to allow them to make the amendment, arguing issues that came up during the trial necessitated them to consider the amendment.

He argued that they were bringing in facts they missed, asking the court to disregard the defence’s arguments.

The bureau’s lawyer argued the amendment was not repetitive, admitting there were more than six counts the first accused person, Batatawala, was facing but pleaded that this be allowed to accord them a chance to prosecute the matter smoothly.

The magistrate cited a case authority that disallows magistrate courts from handling cases whose charge sheet carries more than six counts and asked the bureau about its thoughts on that authority.

But Saidi said they brought in new counts that had testimonies, arguing there were circumstances that led them to do this, being a matter bordering on two contracts of 2009 and 2010 the first accused had with Immigration.

The magistrate said he would make his ruling this Friday on the amendment of the charge sheet and also if extra witnesses with their new disclosures could be allowed.

The four accused persons, who are facing up to 17 counts, were arrested mid December last year and were granted court bail later.

Batatawala and Thodi, among other counts, are answering the first count of conspiracy to defraud by allegedly inflating the market price of lockers procured by the department from Batatawala’s firm.