Lawyers representing seven court officials and two businessmen charged with trafficking in narcotic drugs have urged the Lusaka Magistrates’ Court to take the nolle prosequi entered by State Advocate Grescillia Mulenga in the last proceedings seriously saying the said nolle was done illegally and unconstitutionally.

They say that if the advocate entered a nolle prosequi without authority of the DPP, it means that the current proceedings are a nullity and the previous case was still valid because the powers that Mulenga exercised can only be exercised by the DPP.

According to the law, only the DPP can enter a nolle prosequi, but has power to delegate by way of a written authority, to a particular advocate to enter a nolle.

In this matter, businessmen Eric Chipango, Emmanuel Chimba and court officials Emmanuel Chirwa, Bearvan Mengo, Mathews Mukanda, Victor Nzaila, Florence Mushoka, O’Brian Muyunda and Didie Kangwa, a senior clerk of court, are facing four counts of trafficking in narcotic drugs and two counts of theft by servant.

Recently, the Director of Public Prosecutions entered a nolle prosequi in a case in which the nine were facing three counts of drug trafficking in relation to the disappearance of 24 kilogram of cocaine, which drugs are subject of criminal proceedings before another court.

However, upon their release, the accused persons were re-arrested.

At the last sitting, the defence had raised some preliminary issues as regards the irregularity of the proceedings.

Among other issues, the defence had urged the court to take judicial notice of the proceedings that were before the previous magistrate, which proceedings were subsequently discontinued by the State by way of a nolle prosequi.

And when the matter came up before a Siavonga based magistrate Victoria Chitulangoma sitting in Lusaka, Monday, Deputy Chief State Advocate Gamaliel Zimba objected to the defence’s proposition for the court to take judicial notice of the proceedings of the other court saying there was nothing specifically raised to require that merger.

He added that the submission was not supported.

On the defence’s application that the accused persons were in court illegally because they were not formally warned and cautioned, Zimba argued that the only process recognized at Law leading to the production of a warm and caution statement, was a trial within a trial.

He added that the issue of a warn and caution statement was prematurely raised by the defence as the State had not attempted to produce any at that juncture.

Zimba further argued that the basis upon which the court was being urged to refer the matter to the High Court for Constitutional determination, was misconceived.

He said the court had nothing to do with the proceedings that were before the other court.

Zimba further argued that there was no nolle prosequi on the record of the current Court, hence all the concomitant arguments made should fall out.

However, the the defence lawyers comprising of Keith Mweemba, Jonas Zimba, P Muya, Makondo Simubali, among others, argued that they were inviting the court to take judicial notice of the contents of the other court in order to compare with what would be said when trial commences, with what was said in the previous court in case a witness decided to change their statement.

Mweemba said when trial commences, they don’t want to be accused of aducing evidence from the bar.

He said the issue of the nolle prosequi should not be trivialised as it was a very serious issue because it was done illegally and unconstitutionally.

Mweemba added that if the advocate entered a nolle prosequi without authority or constitutional power, it meant that the current proceedings were a nullity and the previous case was still valid.

He said this was because the powers that Mulenga exercised was only given to the DPP in this country.

Mweemba further said the State should have demonstrated to the court that the accused persons were formally arrested and charged, adding that the only arrest that was formal was in the previous proceedings.

Another defence lawyer Jonas Zimba argued that the application by the defence for a Constitutional reference was properly before the court.

“And not until the issues being raised are determined, it would be improper to proceed with the matter before you. We pray that this matter be referred to the High Court for determination of the issues that have been highlighted,” he said.

The matter has been adjourned to November 23, 2018 for ruling on the preliminary issues raised.