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HH’s lawyers raise more preliminary issues before treasonBy Mukosha Funga on 4 May 2017
Hakainde Hichilema’s lawyers have continued to raise fresh preliminary issues in the treason case while the opposition UPND leader remains detained with the unbailable charge.
The judiciary suspended court hearings today to pave way for the Law Association of Zambia (LAZ) Annual General Meeting, but the defence and prosecution agreed to go ahead with the treason case.
When the matter came up for commencement of preliminary inquiry in the viability of the treason charge leveled against HH, the defence team raised more preliminary.
Submitting before magistrate David Simusamba today, lawyer Nelly Mutty raised concerns that the state police seized two motor vehicles in April 2017 without a seizure notice.
She told the court that police had illegally seized two vehicles and a Samsung galaxy 7 phone belonging to accused 2 and 4, adding that the said items were being used by police without consent from the owners.
“We understand that these two motor vehicles are being used by the police in their operations without the authority of the accused. We seek your intervention to release the said items as they have nothing to do with the case pending before this court,” she said.
But the State opposed to the application, claiming that the said items were part of the exhibits to be submitted before court.
“Our brief response is that the items mentioned by the defense are part and parcel of exhibits in the matter before you hence they cannot be released to the accused persons at this stage. Your worship, on the aspect that police are using the motor vehicles, it is mere speculation as no evidence has been given that the police are using the said motor vehicles. In fact, we are told that they are keeping them as exhibits,” said one of the prosecutors.
However, Lawyer Keith Mweemba told the court that police should not be allowed to perpetuate lawlessness in the country.
“We are glad that the state have said they are saying they are keeping those vehicles without a seizure notice so they cannot turn around and say the vehicles are not being kept. But what does the law say in this country? …the state has got no right to get property from someone without a seizure notice. In fact we shall move very swiftly on a judicial review for those items to be released. This court has powers to ensure that those vehicles are [released]…the state will not be allowed to perpetuate lawlessness in the country. It is actually criminal behavior and they must be warned. Whoever is part of the seizure of these vehicles will be indicted criminally before the subordinate court…these are not exhibits,” said Mweemba.
Magistrate Simusamba then called for a break in order to make a ruling in the fresh preliminary issues.
When he returned, magistrate David Simusamba directed the state to surrender the vehicles which were taken from HH’s house on grounds that they were seized without a seizure notice.
“I have directed my mind to the substance of the matter. I cannot agree less with the defense when they say that without seizure notices, they are holding on to the property illegally. There is therefore no merit to the objection. I therefore order restoration of the property,” magistrate Simusamba ordered.
After the ruling, lawyer Mutty told the court that car keys for vehicle registration number ALZ 2714 were also taken from accused person “A2” while he was at the residence of accused “A1” on April 10 at night without a seizure notice, magistrate Simusamba ordered the state to release the keys too.
Nelly then said: “There’s another issue… that at an appropriate time, the defense will be making an application relating to the indictment.”
Later, the State said it was in receipt of instructions from the Director of Public Prosecutions
To commit the treason case involving Hakainde Hichilema to the High Court.
But defence lawyer Jack Mwiimbu reminded the magistrate that he had ordered for a preliminary inquiry into the viability of the treason case.
“Your honor you may be aware, this court, at the last sitting did make an order for a preliminary inquiry pertaining to the charge of treason that is before this honorable court. The order was made arising from a no objection from the State. As defense, we endeavored to make preparations for the preliminary inquiry to be made today and early this morning when we came to court, we did make consultations with our colleagues in the prosecution team whether they would be ready to proceed with the preliminary inquiry. The answer was in the affirmative,” Mwiimbu submitted.
“The issues we wound like to raise relates to the rights of the accused persons taking into account that a treason charge is not bailable and that any delay pertaining to the hearing of this matter inflicts pain and suffering on the part of the accused persons taking Into account the conditions that are prevailing in our prison detention facilities.”
He further expressed concerns over remarks made by Copperbelt minister Bowman Lusambo, stating that if HH died in prison, the nation would not loose anything.
“We also want the court to take judicial notice pertaining to the various comments that are being made by some public officials and those in the ruling party Patriotic Front and in particular your honor the comments made by the minister for Copperbelt Province Mr Bowman Lusambo to the effect that if A1 dies in prison, the nation will not lose anything. The statement by the deputy SG of the PF Mumbi Phiri to the effect that if the police do nothing against accused 1, they will usurp state authority and treat A1 like a rat,” said Mwiimbu.
“Various other statements have been made and we have evidence, both in print and video form pertaining to the statements that have been made by the officials mentioned to the intended harm to accused number 1. We would like to besiege the indulgence of this honorable court to take into account the issues we are raising which we believe are critical to the wellbeing of our clients whilst they are in custody.
After Mwiimbu finished making his submission, the defence team applied for a 15 minutes break to make consultations.
Details in the treason indictment which the Director of Public Prosecutions has directed the State prosecutors to take to the High Court are as follows:
“Hakainde Hichilema, Hamusonde Hamaleka, Pretorious Haloba, Laston Mulilanduba, Wallance Chakwa, and Muleya Hachinda stand charged with one count of the offence of treason contrary to section 43(1) (d) of the penal code, chapter 87 of the Laws of Zambia. Particulars of the offence being that Hichilema and five others between April 5 and the April 8, 2017 at Lusaka and Mongu of the Lusaka and Western Province respectively, in the republic of Zambia, jointly and whilst acting together with other persons unknown, did endeavor to carry out by force an enterprise to usurp the executive power of the state in a matter of both public and general nature by the following overt acts:
1. Hichilema and Haloba on April 5, 2017 in Lusaka jointly and whilst acting together did conspire to mobilize an advance party to ensure that Hichilema was to be accorded the status of the president of the republic of Zambia at the Kuomboka Ceremony in Mongu.
2. Hichilema, Hamaleke, Haloba, Mulilanduba, Chakawa and Hachinda on April 8, 2017 at Limulunga in Mongu jointly and whilst acting together with approximately 60 other unknown persons and being in a convoy of motor vehicles on the Mongu-Limulunga road did obstruct the presidential motorcade, an act that was likely to cause death or grievous harm to the President of the Republic of Zambia, in order to usurp the executive power of the State.
Mirriam Mutebi Bah- Matandala, Deputy Chief state Advocate on behalf of the Director of Public Prosecutions certified that this was a proper case for trial by the High Court.
HH’s lawyers then challenged the order by Matandala to commit the UPND leader to the High Court for trail using a flawed indictment.
Defence lawyer Mweemba asked Magistrate Simusamba to take interest in the fact that the accused persons in the earlier treason indictment, which was read in court last week, were different from those named in the certificate of committal for the matter to be heard in the High Court.
“We have a number of issues that we wish to be placed on record that border on Constitutional precedence among others. The first issue is that this court explained the charge in relation to overt act number one, which is clearly referring to A1 and A6… the committal certificate before you says, A1 and A5. Clearly your worship, there is no certificate of committal before you.
And this court has never explained the first overt act to the accused… it may be interesting to note that the DPP has not in person issued any certificate of committal in a matter of serious public interest, as this committal shows that it was issued by the deputy state advocate Mirriam Mutebi Bah- Matandala,” Mweemba submitted.
“Obviously it is a given fact that there was no application made before you to amend the charge and this court is being invited to commit people in a vacuum. The state keeps shifting positions like a river on soft sand constantly. If this does not signify bad faith, then what is it your worship? Should people be incarcerated for an unbailable offense on the pretext of a bad charge which does not indicate the offense just because the state thinks that due process will follow?”
He added: “And the state are not entitled to hold people in custody and continue carrying out investigations. What we are witnessing today should not have occurred. There’s no doubt in our minds here. The only reason why this treason charge is still standing is because it is not bailable. The state know deep down their hearts that even under any stretch of imagination, there is no treason to talk about here. If someone wanted to be so bad hearted, they should have brought a traffic offense directed at the people who may have committed the offense. There is nowhere were it is written that once the DPP makes a decision then it is not amenable to challenge in the court of law. Your worship should ignore this committal; there is no committal to talk about.
Mweemba then citing cases where the authority of the DPP was challenged, and went further to apply that the case is sent to the High Court for Constitutional review.
“As you consider our application which we are making for a Constitutional reference to the High Court pursuant to article 8 clause 2(a) of the constitution in view of these endless anomalies on the part of the state. You may wish to know that the state conceded in the other court that the indictment was bad at law. And the only reason why the court could not quash was that it was a preserve of the High Court. A bad indictment cannot be amended and neither can it be replaced but the state, with the speed of lightening, substituted the indictment and went to manufacture the laughable overt acts because they don’t amount to treason. The genesis of this matter raises constitutional questions on fair trial,” Mweemba submitted.
“Is it constitutional to charge the accused with this offense of treason when the constitution does not only guarantee the presumption of innocence but also provides for the freedom of movement under article 2 of the Constitution? Whether or not it is lawful and constitutional for the DPP to purportedly issue a certificate of committal when the indictment is bad at law; this question is pertinent because it goes to the root of fair trial. Is it lawful, reasonable, constitutional and democratically justifiable and permissible for the state to charge people, in this case the accused, with an offense of treason when even on the face of the offense of treason does not arise in tandem with the provisions of 137 of the CPC.”
He said the State was trying to perpetuate the incarceration of HH.
“We raise these questions because clearly, the state wants to perpetuate the incarceration of the accused hence this bad faith of avoiding a Preliminary Inquiry (PI) by issuing a bad certificate of committal. We don’t need [to be] rocket scientists. The only reason why the state has issued this certificate is to gag this court and curtail its jurisdiction. Because through a PI, you have the power to set the accused free. I wish to advise that this court should refer this matter to the High Court,” Mweemba submitted.
HH’s defence lawyers continued to discredit and punch holes in the certificate of committal for the UPND leader to be tried in the High Court, wondering why the substantive DPP Lillian Shawa Siyunyi has delegated her powers to a state advocate to issue the document.
Lawyer Marshal Muchende asked the court not to consider the document as a Certificate of Committal.
“The paper that was handed to you by the State purporting to be a certificate committing HH and others to the High Court for trial signed by Marriam Mutandala is no certificate at all. The certificate is supposed to be issued by the DPP. And the person holding that position right now is Lilian Shawa Siyunyi. The power vested in an authority can only be delegated if the law permits such and in the manner that the law has prescribes. Where is the writing from Mrs Shawa Lilian who is the substantive holder of the position of DPP to allow Ms Matandala to be the issuer of this certificate? If you read the ending of this certificate; ‘now therefore, I Marriam Matandala deputy chief state advocate on behalf of the DPP for the Republic of Zambia, pursuant to the powers vested in me….’ Who is this Marriam to sign as though she is the one vested with the powers to sign as DPP, which constitutional officer bearer is appointed by the President of the Republic of Zambia?” Muchende wondered.
“This so called certificate is a nullity and it is not even worth the paper it is written on. A signed letter giving Ms Matandala authority to issue the instructions should have been produced to you.”
Muchende also submitted that the case be referred to the High Court for constitutional determination.
“There can be nothing more punitive to a politician such as the first accused who has offered himself to contest for the office of the presidency and render a service to the country than to be locked-up in chains and be deprived of his fundamental rights of association, movement and assembly,” submitted Muchende.
Another defence lawyer, Gilbert Phiri questioned the shortcut used by the State to avoid a preliminary inquiry.
“Whether or not the charge of treason under section 23 of the penal code as read with the proviso to section 123 of the CPC offends articles 11, 13 and 15 of the Constitution of Zambia; the court is urged to refer these six questions and other questions that may arise to the High for determination, because the sale are not frivolous neither are they vexatious,” he said.
“This is a rouse that has been used to short circuit the preliminary inquiry. The state thinks by waving a certificate of committal to this court, they can continue to violate the rights of the accused who are before this court. Though the certificate has been received, the case may not take place tomorrow in the high court, it might even be next year and in the interim, the rights of the accused would have been irreparably infringed.”
Senior state advocate Bob Mwewa joined the prosecution team and applied for a 15 minutes break to study the submissions made by the defence.
“At this time we seek the indulgence of the court to stand down the matter for 15 minutes to allow us to digest the submissions made by the defense and we may respond accordingly.”
About Mukosha Funga
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