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Magistrate summons HH’s arresting officer, reserves treason rulingBy Mukosha Funga on 12 May 2017
Lusaka magistrate David Simusamba has summoned Hakainde Hichilema’s arresting officer Mbita Mpazi and another senior officer Arthur Shonga to explain why they have defied a court instruction ordering them to return the illegally seized property.
Earlier, magistrate Simusamba spent over 20 minutes in chambers deliberating with defence lawyers and State prosecutors, ahead of the ruling on whether the treason case would proceed to the High Court for trial or not.
When the advocates came out of the chambers, defence lawyers had a brief discussion with HH and his co-accused after which Jack Mwiimbu told HH’s sympathisers to stay calm after magistrate Simusamba’s announcement was passed.
But Simusamba did not make the ruling in the treason case, leaving court attendees bewildered.
After magistrate Simusamba took his seat, Mwiimbu said the defence had and application to make through lawyer Mulambo Haimbe.
Haimbe informed magistrate Simusamba that the vehicles which had been seized from HH’s house without a seizure notice had not been returned despite the court’s ruling.
“Your Honor, the record will show that at the last sitting of this honorable court? This court ordered and directed that certain properties be restituted to the accused. Your records will also show that subsequent to your rules, a formal order was filed before this Honorable court on 5th May and duly endorsed by the court. That order was served on among others the Inspector General of police and the dealing officers from prime one unit at service headquarters namely Mr Arthur Shonga and Mr Mpanzi Mbita, the arresting officer who duly acknowledged receipt of the said order,” Haimbe said.
“This was on 9th May 2017. However, that notwithstanding, the said individuals refused to release the subject properties without any lawful reason or excuse. Your Honor, it is law that orders of the court must be respected and therefore, the refusal by the said officers to release subject properties amounts to intentional disrespect of an order of this honorable court which in our submission is contempt to this court in terms of section 116 sub section 1(I) of the Penal Code Cap 87 of the laws of Zambia.”
He asked the court to summon the two police officers.
“In view of this development, it is our application that the said individuals namely Mr Author Shonga and Mr Mbita be summoned before this court to show cause why they should not be cited for contempt or indeed committed to prison on account of their said actions. That is our application and it is our humble prayer that the motion submitted be duly considered by this Honorable court,” submitted Haimbe.
In response, the state said: “We wish to state that the state would not want to disobey a court order. The misunderstanding that led to the non release of the motor vehicles stemmed from lack of evidence of ownership or direct instruction from the owners to do so. We propose that the defects be cured by the defense so that they may collect the properties.”
Defense then argued: “the submissions by the state confirm above all that our assertions before this court to the effect that there has been a willful refusal to obey a lawful order of this court. Your Honor, in that regard it is our submission that there is no defect to be cured contrary to the suggestion by my learned colleague. In all intents and purposes, there is sufficient reason for this Honorable court to summon the said officers so that they can show cause as earlier applied. My learned colleague has made a startling assertion before this court to the effect; one that no proof of ownership was shown and that there was lack of delegation. Speaking as defense counsel, we are aware that the order was served under the hand of representatives of the accused persons who are on record. In those circumstances, it is not open to the state to assert as it now seeks to do. In any event, our application is that the subject officers be brought to the court essentially to explain why they should not be cited. Therefore, it is premature given that the basic facts have already been put on record for my colleague to suggest that the process of explanation can be done here at the bar.”
After a little more debate between the defence and the State, magistrate Simusamba summoned the officers.
“I have heard the complaint by the defense regarding an order that I had made on 5May 2017… I find it fit to summon the said Aurther Shonga and Mpanzi Mbita to appear before this court on Monday to show cause,” said Simusamba.
After summoning the officers, magistrate Simusamba rose, saying that was all for the day.
People who were left wondering why the ruling, which was scheduled for today, was not made, turned to defence lawyers for answers.
Mwiimbu assured the court attendees that the lawyers understood what was happening.
“As the magistrate has said, this case will come up on Monday for the contempt proceedings as well as an announcement. We know what we are doing,” said Mwiimbu.
About Mukosha Funga
Interested in good governance and youth empowerment.
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- It is not a nolle: Treason case has been dropped in public interest – Mwiimbu - 16 Aug 2017
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