The Lusaka High Court has dismissed an application by the Director of Public Prosecutions to have the matter in which Lusaka Province UPND chairman Obvious Mwaliteta and another businessman are charged with being in possession of offensive weapons, tried in the Lusaka Magistrates’ Court.

High Court Judge Sharon Newa noted that there was no affidavit in support of the Notice of Motion to enable her determine whether there was sufficient basis upon which she can exercise her discretion to order change of jurisdiction from the Kafue Subordinate Court to Lusaka.

Mwaliteta, 48, is jointly charged with James Sichomba, a 36 year-old businessman of Kafue, with one count of being in possession of offensive weapons or material.

They were arrested by Police in Kafue on March 27 during the Kafue District Council Chairperson by-election.

Although the duo had been appearing before the Lusaka Magistrates’ Court for mention, they did not take plea because authority to try the matter in another jurisdiction had not yet been obtained.

On April 10, this year, the DPP filed a Notice of Motion in the Lusaka High Court for an order to change venue for security reasons, pursuant to Section 80(1)(e) and (2) of the Criminal Procedure Code, Chapter 88 of the Laws of Zambia as read together with Part (VI) of the High Court Act, Chapter 27 of the Laws of Zambia.

The Notice of Motion stated that Mwaliteta and Sichomba were politician and businessman who reside in Kafue district and that as soon as they were arrested, riots broke out in parts of Kafue town.

“Considering the nature of the offence and for security reasons, the matter should be heard by a Subordinate Court at Lusaka. The applicant (DPP) does not doubt the competency of the magistrate at Kafue to deal with the matter but merely emphasizes on the convenience and security of the parties,” the State stated.

However, Mwaliteta and Sichomba through their lawyer Zevyanji Sinkala opposed the application, stating that they were residents of Kafue District and the offence alleged was said to have been committed in Kafue.

The duo stated that it was only fair and convenient that trial was held at the Kafue Subordinate Court for their easy access and movement to court when required.

They also contended that there was no evidence to support the allegations that there were riots in some parts of Kafue soon after they were arrested and illegally detained for seven days.

Mwaliteta and Sichomba further contended that the offence that they were charged with was triable by the Subordinate Court and that the court at Kafue was more than competent to preside over the matter.

Although the State offered to foot Mwaliteta and Sichomba’s expenses to attend court in Lusaka from Kafue, the duo’s lawyer, Sinkala, stated that his clients were politicians and businessmen who would not be comfortable with the State providing transport for them to attend court, adding that they would rather make their own arrangements.

It was further stated that no report had been presented to show the security assessment that had been made, adding that the offence of being found in possession of offensive weapons which was before the Subordinate Court, did not touch on the security of the nation.

And in her judgement on April 30, judge Newa noted that there was no affidavit by the State in support of the Notice of Motion to enable her determine whether there was sufficient basis upon which she can exercise her discretion to order change of venue from the Kafue Subordinate Court to Lusaka.

She therefore declined the application and dismissed with no order as to costs.

“Therefore, the basis upon which it has been made to appear to me that it is expedient to order change of venue of the trial of the respondents pursuant to Section 80(1)(e) of the CPC has not been demonstrated. On that basis, I decline to grant the application and dismiss with no order as to costs. Leave to appeal is granted,” judge Newa ruled.

Recently, the DPP issued consent to have Mwaliteta and Sichomba’s matter prosecuted.