Below is part one of the verbatim of court proceedings on July 31, 2017, in a case where Inspector General of Police Kakoma Kanganja sued Chilufya Tayali for libel over a Facebook posting.
Mulambo Haimbe: Your honor, the counsel for the accused is already on record and we are ready to proceed as zealous as we were. Keith will begin.
Keith: I am showing PW1 [IG] ID1 [printed screen shot of Tayali’s posting] Kindly read that to the court loudly.
IG: “Kanganja is just covering his inefficiency to charge HH with treason otherwise he should be an accomplice. Where was his police to clear the way before? That should have never happened but maybe Kanganja planned it that way to kill the President or frame HH.”
Keith: Good, I am showing the witness the indictment, read the words in inverted commas
IG: “Kanganja is just covering his inefficiency to charge Hakainde Hichilema with treason otherwise he should be an accomplice. Where was his police to clear the way before? That should have never happened but maybe Kanganja planned it that way to kill the President or frame Hakainde Hichilema.”
Keith: you agree with me that the indictment and ID 1 are not the same don’t you?
IG: Your honour, they are the same your honour.
Keith: word for word?
IG: word for word your honour
Keith: uuuhhh witness, read that again are they the same?
IG: I insist the wording is the same
Keith: The word Hakainde Hichilema does not appear on ID1 does it?
IG: on ID1 it is HH your honour
Keith: what about in the indictment?
IG: it is Hakainde Hichilema your honour.
Keith: so they are not the same are they?
IG: they are the same your honour
Keith: Okay, I will show you that they are the same. In the treason charge, because here we are talking about treason, do you agree with me that in the indictment for treason there is another person by the name of HH do you agree with me?
IG: I don’t know your honour
Keith: I will show you but first, HH is not synonymous with Hakainde Hichilema not so?
IG: your honour, even a child…
Keith: answer the question! (Repeats previous question)
IG: it is synonymous to HH your honour.
Keith: Okay, I am showing the witness a statement from his office your honour so that he remembers the names of the people he arrested. (gives IG document). But before you answer questions on that, at least we are agreed that from the indictment and ID1, the words Hakainde Hichilema do not appear on ID1, am I right?
IG: you are right
Keith: Let’s go to the indictment. The initials HH do not appear in the indictment
IG: They don’t appear your honour.
Keith: so the wording of ID1 and the indictment regarding the initials and the name are different right?
IG: correct your honour.
Keith: And it is a fact that you are relying on ID1 to support the charge in the indictment that you have correct?
IG: your honour, I am not relying on the facts as I am not the author
Keith: (repeats question)
IG: I am not relying on the framing of the indictment
Keith: I haven’t asked a question about framing of the indictment…my question is that you are relying on ID1, which you brought to court on your own to support the charge in the indictment not so?
IG: not so your honor
Keith: Uh, good. So if you are not relying on ID1 to support the charge why are we here?
IG: your honour, I …
Keith: let me rephrase. If you are not relying on ID1 to support the charge, then what evidence are you relying on to support the charge?
IG: your honour in this country, even a child knows that HH is Hakainde Hichilema.
Keith: That’s not the question. My question is are you relying on ID1 to support the charge?
IG: I am relying on ID1
K: ah, are you changing your answer?
IG: your honour we are relying on ID1
Keith: are you changing? We want to know. Remember you said you were not relying on ID1
(State and defense counsel exchange arguments over the line of questioning in a disorderly manner until magistrate intervenes)
Magistrate: I must emphasise that etiquette and courtesy are called to the practice so I ask the parties to observe the rules of the court. One person standing at a time and when you stand to object or to say anything you address the court. So if you can proceed.
State prosecutor: obliged your honour, the witness has already answered to say he is not the one who drafted the indictment now due to the approach by the counsel, he has put it the other way round and he has already told the court that he did not frame the indictment. The person who wrote the indictment is the prosecution.
Magistrate: I think that one I would overrule the objection without asking the other party to respond since an intelligent lawyer will always get what he wants from the witness so I don’t see anything wrong with counsel in the manner he is cross examining the witness.
Keith: Most obliged, thank you your honour. Permission your honour to show the witness an unmarked document (gives document to IG). So are we taking it that the position you had given earlier you have changed now? You are now relying on ID1 to support the indictment. Correct?
IG: The position hasn’t changed your honour
Keith: so what is the position? Because earlier…
IG: we are relying on the indictment your honour.
Keith: okay, you are relying on the indictment. But you agree with me that the indictment is supposed to be back traced by evidence not so?
IG: Your honour that I don’t know.
Keith: You don’t know? So your evidence is the indictment?
IG: correct your honour
K: very good. Your honor, permission to show the witness an unmarked document (Hands it over).
What are you looking at?
IG: I’m looking at a statement from the Office of the Inspector General
Keith: look at the last page, who’s the author?
IG: me your honour
Keith: Look at, there is a list of names there right? What is the first name?
IG: the first name is Laston Mubilandulo
Keith: okay, just look at paragraph three and read to the court
IG: “I would like to inform the nation that we have jointly charged and arrested Mr Hakainde Hichilema and five others”
K: Good. So go to name number five.
IG: Number five is Hamusonde Hamaleka
Keith: Kindly tell the court what are the initials of that person?
IG: I don’t know your honour the initials
K: you know, he answer is right in front of you. The names that you have just read out to the court, what are the initials? The first letter of the first name and the first letter of the last name.
IG: HH
Keith: loudly again?
IG: HH
Keith: so the initials of Hakainde Hichilema and those you have read on number five are the same not so?
IG: correct your honour
Magistrate: You said the initials for what? You see you are now also confusing yourself. The initials for HH and HH? Is HH a name?
Keith: no, I am talking about Hakainde Hichilema and the initials of the name on number five.
Magistrate: so correct yourself
Keith: most obliged. So the names of the two are the same not so?
IG: correct
Keith: if you look at the indictment, the publication is alleged to have occurred on the 13th of April 2017 not so?
IG: according to the indictment, it shows 13th April 2017
Keith: and in your evidence in chief, you told the court that it is as a result of ID1 that people started calling for your resignation is it true?
IG: it is true
Keith: we want to show that it is not true. Permission to approach the witness with an unmarked document or newspaper. (Hands it over) what are you looking at?
IG: I’m looking at the Daily Nation dated 13th April 2017 Volume 3 issue number 1636.
Keith: What does the banner headline say?
IG: I will not resign – IG
Keith: kindly read the contents to the court loudly
IG: “I cannot resign over unfounded allegations in relation to the UPND Mongu motorcade saga says IG Kakoma Kanganja.”
Keith: It is a fact that you uttered those words right?
IG: correct your honor
Keith: And it is also a fact that your lamentations that you were not going to resign had nothing to do with ID1 correct?
IG: your honour, it did not refer to a particular document
Keith: Yes, I am not asking whether you refered to a particular document. I am saying, your talking about resigning had nothing to do with what the accused allegedly did?
IG: it was part of it
Keith: You have just read from the indictment, 13th, that’s when that alleged publication was issued according to you.
IG: yes your honour
Keith: Okay, we will still make it clear. That statement was a publication of the 11th of April ‘IG must resign’ (Holds up another edition of the Daily Nation Newspaper), wasn’t that a reaction to being told to resign?
IG: I am not aware of that publication
Keith: No problem, will make you aware. Permission to show the witness a copy of the Daily Nation dated April 11th. But first, on this publication of the 13th, you did not utter those words the same day but previous day not so?
IG: I wouldn’t know your honour
Keith: laughs
IG: I wouldn’t know if it was in reference to that
Keith: Okay, we will still get what we want. When did you address the nation that you will not resign?
IG: I can’t recall your honour.
Keith: but definitely it was not on the 13th of April?
IG: I can’t recall your honour
Keith: No problem, we have sufficient evidence to prove that. Okay, read the full article loudly, the one for 13th.
IG: “And the IG said those calling for his resignation should not think he was a coward who would run away from the responsibility of the recent Mongu happenings. Mr Kanganja also said him and his family have been receiving death threats from suspected UPND members over the arrest and subsequent charge of their leader Hakainde Hichilema for treason.”
Keith: Okay, go to page four. That’s a Daily Nation Newspaper right?
IG: yes
Magistrate: what date?
Keith: 11th, go to page 4
IG: This is 4th April
Keith: Well, that was an error.
IG: It shows 4th your honor
Keith: Just relax. Yes, I agree with you it shows 4th April but go to other pages, it was an error I think. What are other pages showing?
IG: they are showing 11th
Keith: What’s the issue number?
IG: Issue number 1634
Keith: There’s a story about you there, what’s the banner headline?
IG: IG must resign.
Keith: These people are calling for your resignation and in your evidence in chief, you said you received numerous calls after what the accused did, people asking you to resign. What comes first? 11th or 13th April?
IG: your honor I did not say it is only from him but several others
Keith: the question is very simple, what comes first? You understand my question?
IG: 11th April your honour
Keith: And there was no publication of ID1 on the 11th of April?
IG: your honor, in my evidence in chief, I did not only say it was, it was part of…
Keith: you see, the court is not even writing because you are not answering the question. Answer the question please, we don’t want to keep you longer, just help us.
IG: I am ready to go the whole day
Keith: Okay it’s fine, we know you are a fit man
IG: very fit
Keith: Yes we know, very fit but kindly answer my question now
Magistrate: answer the questions as they come to you
IG: correct your honour
Magistrate: Repeat the question
Keith: It is a fact that the publication that you have said as a result of that publication people started calling for your resignation…
IG: it is not a fact
Keith: I haven’t finished the question. I am saying it is a fact that the publication did not exist on the 11th of April
IG: it is not a fact your honour
Keith: Okay, Mr Kanganja, witness, remember that you are on oath as you answer these questions. So you are saying this publication existed on the 11th of April 2017?
IG: No your honour
Keith: So kindly help the court reconcile the two answers.
IG: Your honour, in my examination in chief, I told the court that it wasn’t only this publication but that several others, even when you read that paper there, it is referring to others.
Keith: Yes, we have your evidence in chief, relax. So actually, there were many other people, who called for your resignation long before ID1 came into existence?
IG: correct your honour
Keith: long before the allegation in the indictment right?
IG: correct your honour
Keith: so your being asked to resign had nothing to do with the accused not so?
IG: it had something to do with the accused your honour that’s why we are in court today
K: but others had already spoken
IG: his was so serious!
Keith: That’s not my question
IG: That’s why we are here your honour
Keith: you were being asked to resign before ID1 came into existence not so?
IG: correct your honour
Keith: So obviously at the time, the issue of treason had already become a matter of public interest correct?
IG: not to my recollection your honour
Keith: Don’t forget about the statement, remember there was a statement I showed you, what’s the date?
IG: 12th April your honour
Keith: Yes and your…
(Court marshalls phone rings very loudly and IG, defense lawyers and Magistrate joke about it before proceeding)
Keith: What’s the date?
IG: 12th April, 2017
Keith: by this time there was no publication of ID1 we have already established that. But you agree with me that you had arrested Hakainde and therefore the matter had become of public interest as of that date correct?
IG: Correct
Keith: (Reads part of IG’s examination in chief) “there was an outcry where people asked for my resignation…even as I am standing here it is still paining me because people are still talking about it”.
IG: even as I stand here your honour
Keith: yes, people are still calling you about it
IG: even as I stand here, there are family members here who are still…
Keith: People are still calling you about IT? The IT here refers to ID1 not so?
IG: to the people
Keith: IT, ‘people are still calling you about IT’, what is the IT referring to?
IG: the calling for my resignation your honour, that is what the IT is all about.
Keith: Listen, these are your own words, and you are using a definite article. (Reads more of IG’s examination in chief) “The article is 100 per cent libel because as I am standing here, it is still paining me because people are still calling me about it.” Correct English demands that the IT here is in reference to the article not so?
State prosecutor: Objection, we don’t know why the counsel has chosen to take that route because the witness has already given a clarification as to what he means by IT so now I don’t know what counsel is trying to achieve.
Keith: Your worship, page 36 of the record is very straight forward. We are not going to be dictated to on how we are going to cross examine, surely, the witness is being evasive. It is so clear, he is talking about the article. The IT is in reference to the article so what is so difficult about this?
Magistrate: the objection is overruled. You may proceed
Keith: Look sir, you said, the article is 100 per cent libel because even as I stand here, people are still calling me about it.
IG: about the resignation your honour
Keith: Okay, no problem, we will still get what we want. You are talking about the article here, which article?
IG: There are several articles your honour
Keith: The article, not articles, The, The, your own words, which article?
IG: About the resignation
Keith: Which article is being referred to for you to resign?
IG: The articles that were appearing, that is why I said people, of which…
Keith: Maybe the court can help us to read for the witness proceedings of Page 36 where he said the court is 100 per cent libel, those are his own word
Magistrate: This is a simple question, which article were you referring to?
Keith: Exactly, it is a very simple question.
IG: The article which was calling for my resignation
Keith: which one?
IG : It was quoted in a lot of media
Keith: your honor we will spend the whole day here and I am trying to be very patient
Magistrate: Let me just read it from the top, maybe time has passed from the time you read the statement
IG: I still recall your honour
Magistrate: Okay, you first identified, you said that “I request that the court allows me to read through so that clearly text comes out as reported, I would identify it by the names Chilufya Tayali, his picture on the left side, at the bottom, there is my picture which I can’t miss.” And at that point you walked to the dock and identified Chilufya Tayali
IG: Correct
Magistrate: and when you were shown the print out, you positively identified it with the features above and at that point, it was marked ID1. And at that point, you said “The article is 100 percent libel because even as I stand here, it is still paining me because people are still calling me about it”
Keith: I think the gist is clear now. You agree with me, without even running away from the truth, the article you are referring to there is ID1 not so?
IG: Correct your honur
Keith: And it had nothing to do with other people were telling you? Calling for your resignation?
IG: Correct
Keith: And therefore now, it becomes clear, your evidence in chief said it was because of this article ID1 that people were asking you to resign is not correct, it is not true because people had already started calling for your resignation long before the 13th not so?
IG: Correct your honour
Keith: Good, we are now speaking the same language. Your honour he is my traditional cousin so bear with us.
(laughter in court)
Keith: we know you are fit but if you wish to take a sit you can do so
IG: 24/7 365, I will be here your honour
Keith: So now I will go to 11th April, just read the article, the headline is ‘IG must resign’
IG: “If it is proved that the police were unprofessional in the presidential motorcade fracas in Mongu involving UPND leader Hakainde Hichilema, then Police Inspector General must immediately be fired or resign on moral grounds, says governance activist David Kapoma.”
Keith: Good, David Kapoma, governance activist is calling for your resignation on the 11th
IG: if it is proved
Keith: No, relax, relax. Yes, if it is proved, and that’s why we are here, we want to show your inefficiency. Read the next paragraph
IG: “He was quickly echoed by other stakeholders who said Mr Hichilema should either be arrested or Mr Kanganja resign on moral grounds for endangering the life of the President Edgar Lungu in Western Province.”
Keith: So these stakeholders, there is Mr Kapoma on one hand, and there are other stakeholders, maybe you can name them. You can continue reading
IG: “Leading the assault on police, PF deputy Secretary General Mumbi Phiri said that unprofessionalism exhibited by Zambia Police officers was disappointing”
Keith: Mumbi Phiri is calling your service unprofessional correct?
IG: correct
Keith: read only the highlighted parts now
IG: “speaking at a joint media briefing in Lusaka yesterday, Mr Chanda and Mr Musoma who were both eye witnesses, said Mr Hichilema and his Vice-President for Administration Geoffrey Bwalya Mwamba, had hired thugs from Lusaka to go and cause anarchy. Speaking during a media briefing at the PF secretariat yesterday, Ms Phiri said the Party was ready to provide security for President Edgar Lungu and would look after him better than the police. We call on the police to give us a go ahead to protect our leader if they have failed. President Lungu is not just Republican President but leader of the Patriotic Front. We have a very strong party security, said Mrs Phiri. Mrs Phiri said what transpired over the weekend where the UPND and Hichilema obstructed the presidential motorcade in full view of police shows how unprofessional the police service was. For how long will the PF refrain itself from reacting to the UPND’s continued provocation and anarchy? Ms Phiri said the vehicles were so close and she expected professionally, they should have come out and guarded the Presidential vehicle side by side but they were seated in the cars. Maybe they don’t train to run. It is very disappointing but what happens to Mr Kanganja, it is up to the appointing authority to decide, she said. Mrs Phiri questioned where the police officers were because the pictures circulating online were showing that the President’s window for his vehicle was open asking whether that was normal. ‘Is what the police did right by allowing the window of the President’s car to remain open? She demanded that the police should give the PF the go ahead to provide security to their President as the party leader if they had failed to provide security for him. Mrs Phiri said PF security wing would have provided better security than the police officers. Mrs Phiri warned HH…”
Keith: Okay
IG: You are running away from HH?
(laughter in court)
Keith: No, you can read. I just wanted to…
Magistrate: Proceed
Keith: no, let him read so that he is satisfied. Because he might think we are trying to be selective. Showing the witness an unmarked document dated 10th April. Concentrate on where I have marked with a blue pen, read.
IG: “Mumbi wondered why the IG said he was still awaiting a full report of what transpired when there was enough evidence indicating a lapse on the part of the police. When police saw that the vehicles were too close, they should have come out to surround the Presidential vehicles side by side but they were seated in the car, maybe they were too fat (laughs and court joins in) they don’t train to run, it is very disappointing. Mumbi said it was up to President Lungu to decide on what to do with Kanganja over the alleged unprofessional conduct by police”, officers who were in this entourage, not Kanganja no. The officers who were…
Keith: Just read
IG: “Mumbi also wondered why HH had not yet been arrested for treason”
Keith: Look at the date of that publication. What date is showing?
IG: it is dated 10th April 2017
Keith: you agree with me that as of this date, you had not yet arrested HH and others for treason?
IG: correct
K: and Mumbi Phiri is telling you that you should arrest and charge HH with treason not so?
IG: I have just seen this publication today
Keith: No, answer the question (repeats)
IG: No your honour
Keith: oh? Because things were so straight forward, I wanted to spare you the trouble of going through.
IG: I have read your honour
Keith: Okay, your worship we have the audio, we want technology since this witness is refusing. But in the meantime as they set up we will ask more questions.
So the statements that you have read. Various activists, Mumbi Phiri are giving you two options. The first option is that you must resign or you must arrest HH. Those are the options they gave you correct?
IG: They were not given to me your honour
Keith: Well at least from what you’ve read that’s what people were saying that you must either be fired, resign on your own or arrest HH right?
IG: That’s what they were saying your honour but not directly me
Keith: No, Mumbi Phiri mentioned you and said IG. Who is the IG in this country?
IG: KK your honour (court laughs) Kakoma Kanganja, just to catch up with time.
Keith: so Mumbi Phiri is telling you that you should resign or arrest HH and charge him with treason?
IG: Just today that’s when I am seeing that there was this. Remember in my testimony I said I am not a fan to this social media so whatever was on social media was not brought to my attention your honour.
Keith: A member of the party has given you options and she is demanding that you must arrest HH and charge him with treason. Subsequently, did you charge HH with treason?
IG: The police charged Hakainde Hichilema, HH as you are putting it yourself, with treason. But your honour, it must be put on record that I do not get directives from anyone.
Keith: Okay, you had a conversation with the press aide to the President Mr Amos Chanda over the arrest of Mr Geoffrey Bwalya Mwamba?
IG: I am not aware your honour
(Marshall informs the defense team that the audio CD he had been given to set up isn’t working and defense gives him a video of Mumbi Phiri’s briefing instead)
Keith: There’s video, except that we didn’t have time to view whether it was the correct one but there is both video and audio so maybe we can give them. We wanted to put them in order. As we load the video, I will come back to the issue of directives, that you don’t get directives and you have said you don’t remember the issue of the conversation with Amos Chanda
IG: I don’t remember your honour
Keith: Okay, but you issued a statement to that effect that you are investigating over the same.
IG: Because I didn’t issue, that is why, if I had issued, why should we investigate?
Keith: You were referring to the same recording, that the one who has tapped this conversation illegally we are going to investigate.
IG: Investigate the circumstances
Keith: So it means you were aware about that recording
IG: I am not aware
Keith: Okay, no problem. Let us first view the video
(Court watches video or Mumbi Phiri calling police unprofessional)
Keith: she is very categorical. What transpired in Mongu is as a result of the lapse on the part of your service right?
IG: That’s not correct.
Keith: That’s not what she said?
IG: That’s what she’s saying but that is not the correct position your honour
Keith: The lowering of the window on the President’s car cannot be blamed on Mr Hakainde Hichilema can it?
IG: No your honour
Keith: So your police service allowed that to happen not so? You did not do anything when the window of the President was lowered?
IG: Your honour, Zambia is a peaceful country. Had those officers reacted, we wouldn’t be sitting here to even talk like this. There would have been mayhem in the country. The officers restrained themselves.
Keith: The question is very simple, do you understand it?
IG: the officers restrained themselves
Keith: You as police allowed that to happen?
IG: The officers restrained themselves
Keith: the rolling of the window
IG: they acted professionally your honour
State objects: (submissions inaudible to court gallery)
Gilbert Phiri objects: No, counsel is not testifying. He is talking about automated system, which automated system?
Magistrate: As to who opened the window, those are beyond him and me, we don’t know what happened. Let us bring facts before the court
IG: obliged your honour, we were not there
Keith: Your honour, in his own words, he said he receives debriefs and he is in charge of command, superintendence, control, direction of all police operations. And there is an operational order, that’s where I am going and in fact, I am marrying this to the indictment. The indictment is very simple, ‘Kanganja is just covering his inefficiency’, so we want to see
Magistrate: Before you go there, can you satisfy this court with evidence as to who opened the window? Who is privy to the opening of that window?
Keith: That’s where security protocol comes in your honor and he is competent to answer, he is a highly trained officer, I worked in government in the security wing myself and he knows what I am talking about. He is very conversant with the security details
Magistrate: I see that the author of that statement spoke from without. Even when I am moving in my car with the window open, do you blame the police?
Keith: we need to know now whether the President or his security personnel could have opened the window. It has to come from him because he was briefed. He received briefings every morning and he is in command so obviously he is competent to answer.
Magistrate: I will urge counsel to restrict himself to matters that are within this case.
Keith: I am looking at the indictment your honour
Magistrate: Whether he receives briefs or not, that is hear say evidence
IG: correct your honour, he wants me to speculate
Keith: We are trying to justify, the indictment says ‘Kanganja is just covering his inefficiency to charge Hakainde Hichilema with treason otherwise he should be an accomplice. Where was his police to clear the way way before? That should have never happened and maybe Kanganja planned it that way to kill the President to frame Hakainde Hichilema’ so the police have got that duty and we are trying to establish good faith, matters of public interest. I have in mind the provisions of sections 196…
Magistrate: The window is so irrelevant in this matter. Can you stick to the matters that are substantive?
Keith: Your honour, the court may hold that view but I think everything is being centered around that. They are saying
Magistrate: You are relying on Mumbi’s statement?
Keith: No, there are several, we have even other documents, it is not just Mumbi Phiri. We have got videos, audios to show that a lot of people talked about that window because that’s where the issue of security and endangering the life of the President comes in because of the window that was lowered.
Magistrate: You know why I am not comfortable? If you are justifying that his statement is correct that this man is inefficient, he is incompetent, what about the window of the President?
Keith: Senior Counsel wants to address the court
Haimbe: I think your honour, with great respect, preempting the evidence, the issues here are extremely wide ranging and what counsel is seeking is to show that in fact, the allegations in the indictment do not fall…in order to do so, he must lay a foundation in terms of the questions that are being asked regarding the role of the police service of which the witness on stand has said quite clearly on record, he is in charge, he is the number one police man so my appeal is that the issues arising from that incident and the question of the window being open is irrelevant, is premature to raise those issues. And it will become a situation where the accused person is being curtailed in his right to defend himself, to cross examine the witness on stand. As the court may be aware, these matters are wide and we are trying to prove if indeed this witness tried to kill the President and that can only be determined if the incident that occurred in Mongu is brought to the fore, the witness can answer yes or no or if he doesn’t know but a foundation must be laid. So it is our humble appeal that cross examination proceeds to its humble conclusion.
Magistrate: I agree with you but I will insist that you stick to relevance. Only relevant evidence is admissible before court, irrelevants are not admissible. If you allowed every irrelevants, we would spend the whole day here.
IG: (chips in) I will grow old and retire
Magistrate: can counsel proceed on relevant issues
Haimbe: Perhaps also your honor, I have noticed a trend of the witness addressing the court directly, perhaps the witness should be guided. It is not in the witness’ place to inform the court that he will grow old and so on or how the proceedings should go. It places the accused person in a very difficult position if the witness is seen to speak as he deems fit. We will ask the court to guide the witness appropriately
Magistrate: Alright, I think the mistake number one was made by your learned colleague who started playing traditional cousinship in court but I must emphasise that the witness must be as formal as possible and answer questions as they come to you. Counsel proceed
Keith: Yes I will proceed except that I am now in a very awkward position on how to proceed because even as they had raised an objection, we are not dealing with…
Magistrate: I didn’t sustain the objection, I only emphasized that we stick to relevancies.
Keith: Most obliged, according to your morning brief, who opened the window to the president’s car?
IG: I am not privy to that
Keith: Did you bother to ask your officers why the window to the president’s car was open?
IG: your honour, State House issues are dealt with within State House
Keith: did you bother to ask your officers?
IG: Your honour professionalism…
Keith: Did you bother to ask the officers that you command, direct and control why the window to the president’s car was open?
IG: your honour I am not privy to that.
Keith: (repeats question)
IG: your honour there are limits
Keith: Did you bother? Your worship this is exactly where the problem is, I have repeated this question several times.
IG: I didn’t bother your honour
Keith: so what is so difficult about that?
IG: because I know your next question your honour
Keith: you see, this witness is not cooperative and we have been very patient, we didn’t want to be seen to be harassing a witness. You did not bother? We are looking at matters of efficiency and competence. Did you ask your officers how the root lining was done?
IG: correct
Keith: who did you ask?
IG: Your honour in my examination in chief
Keith: who did you ask?
IG: I have delegated powers to the commissioners of police
Keith: I am not asking about delegated powers
IG: That is the commissioner of police in the province
Keith: Don’t point fingers in court witness
IG: you are pointing at me that’s why I am responding
Keith: Yes, because I am on the floor
Magistrate: Witness, don’t follow counsel, counsel will do anything possible to rattle you, you you just answer questions. So you are warned to answer questions the way they are put to you
IG: Correct your honour
Magistrate: Proceed counsel
Keith: who did you ask?
IG: commissioner of police in charge of Western Province. Mr Charles Lungu
Keith: and he is still commissioner?
IG: yes
Keith: what did he tell you as to why there were no police officers along the road to give direction as regard route lining?
IG: officers were placed at strategic points
Keith: I am asking what he told you as regards route lining, why the police were not along the road
IG: officers were positioned at strategic points your honour
Keith: and you agree with me that you as police allowed President of the UPND to be on the road right?
IG: he was not authorized your honour
Keith: So, if they were not authorized, since there were police officers on the road, they had a duty to stop the motorcade of the UPND before the President arrived not so?
IG: I was not there so I will start speculating
Keith: We are not speculating. You had a duty to stop because you are saying they were not authorized to be on this road
IG: There was a lot of arrogance in that convoy that’s why they kept on chasing…
Keith: Mr Kanganja…
IG: correct your honour
Magistrate: The witness said he was not there
IG: I was not there
Keith: but he says there was a lot of arrogance, it means he was briefed
IG: it is hearsay
Gilbert: But your honour we have a serious problem, the witness already said and I will quote him verbatim that ‘he was not authorized to be on that road’, now that’s a very serious opposition of fact because he is now testifying on matters that happened at the scene because he said he was not authorized to be on that road. Is the court going to expunge that? Because he is now testifying as if he was at the scene. So he is a competent witness to answer the questions that are being put to him
Magistrate: Mr Phiri, I appreciate your competence and experience. I believe you are all seasoned lawyers who know that hearsay evidence is inadmissible. A question that solicits hearsay answers certainly is objectional unless there are other witnesses to be called who are going to bring evidence of what truly transpired
Keith: Your worship, I will beg to respectfully just address that issue, there is no hearsay. In the case of Shamwana vs The People 1985 Zambia Law Reports page 41 is instructive on the law. The moment someone says a statement was made, that is not hearsay…this witness is on record, he receives briefs every morning from 10 police commissioners, it is something he receives with his sense of hearing, it is not hearsay and in any case, there has been no objection from my learned colleagues, it is not hearsay at all. He has given it as a statement of fact that Mr Hakainde Hichilema was not authorized to be on that road…how can he say Hakainde Hichilema was not authorized when his own police commissioner said he was authorized? It is very crucial.
Magistrate: So you see now the problem,
Keith: Your honour, that is where
Magistrate: Can counsel sit down. (Keith sits) You see why I have problems with the evidence that you want to solicit from this witness? At the end of the day, you gave me well established authorities, now if you want to establish a fact, then it becomes hearsay. The questions as they are put cannot be put as if he is making a statement by the fact that it is a fact of what he is talking about when the witness himself said he was not there. So if counsel wishes to solicit information, let it be in relation to what he was told because he in a position, not whether it was a fact or not. And I direct counsel to proceed in those lines
Keith: I will proceed because the indictment says inefficiency. For him to say they were not authorized to be on the road, how do you know that they were not authorized to be on the road?
IG: Your honour the learned counsel
Keith: don’t address counsel, answer the question!
Magistrate: answer the questions and you answer the questions to the court.
IG: I get briefs as learned counsel had indicated your honour
Keith: Precisely, that’s not hearsay you agree with me. You were told by the officer commanding right?
IG: correct
Keith: That’s not hearsay. And the operation order was availed to you right?
IG: correct your honour
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