Lusaka magistrate David Simusamba has allowed UPND leader Hakainde Hichilema to seek judicial review in the High Court of Zambia in a matter where the opposition leader is charged with treason.
Magistrate Simusamba’s decision came on the basis that he could not ascertain whether the Certificate of Committal for HH to be tried in the High Court was properly issued by the National Prosecutions Authority considering that it was not signed by the substantive Director of Public Prosecutions.
Earlier in his ruling, magistrate Simusamba noted that the first charge was bad at law but that it was later amended.
“I have perused the proceedings and I take judicial notice of the fact that the initial charge was bad at law and it was contested and amended. And the said amended charge is the one now before me,” Simusamba said.
Magistrate Simusamba recalled that the defense objected to the certificate of committal which was signed by a deputy state advocate instead of the substantive DPP, saying it could not hold.
He also recalled that the defense had insisted that he refers the case to the High Court for a preliminary inquiry to test the feasibility of the treason charge which they said was politically motivated and meant to punish their client.
Magistrate Simusamba also recalled that the State insisted that the certificate was valid because the DPP had powers to delegate.
He further recalled that the state told the court that it no longer had jurisdiction over the case and it was obliged to send it to the High Court for trial without fail.
“I have extensively considered the submissions and I propose that. The commentaries made on the case, I must point out that a lot of submissions were made and I have decided not to replicate much of what was referred to for the sake of clarity. On the commentaries, the use of hate speech and writing of any judicial proceedings may amount to contempt of court. It is a notorious fact and I take judicial notice that one of the accused is a leader of an opposition and he has received a lot of comments and writings which amount to contempt. And the court will not hesitate to act,” magistrate Simusamba said.
“On the case of Bowman Lusambo and Mumbi Phiri, at this point, I cannot address my mind as to whether or not the comments amount to contempt. They were made away from the proceedings of this court. If it is the desire of the defense that the two be cited for contempt, they should follow procedure and lay a former complaint. The only intervention I can make is to state the law that this court has the power to cite people for contempt.”
He went on to explain whether or not the substitution of a bad indictment was constitutional, whether or not the proceedings were constitutional, whether or not it was constitutional for the DPP to issue a certificate when the indictment was bad at law and whether it was constitutional to charge the accused with treason.
“I shall first attend to the issue of the jurisdiction of this court,” he started. “No subordinate court can query the powers of the DPP. The subordinate court is duty bound to commit the accused for trial. The two sections do not prohibit the subordinate court from hearing any complaint from the accused person. I hold the view that the jurisdiction of this court post production of the certificate is limited to recording complaints from the accused and doesn’t extend to adjudicating.”
“I have perused the indictment and I am satisfied that it complies with the law. I have also perused the certificate and the order of the accused persons has been shuffled. In my opinion, this is not an error which can invalidate a certificate. On the issue of delegation, not any state advocate can act on behalf of the DPP as they do not have such powers. Those powers can only be delegated as per prescribed by the CPC,” magistrate Simusamba said.
Magistrate Simusamba said there had been a trend by state advocates to sign certificates of committal on behalf of the DPP even though the CPC did not authorise them to do so.
He however said he could not rule on whether or not the tendency could be allowed to continue thereby granting the defense team leave to challenge that in the High Court.
“By practice, certificates have been presented before this court by State advocates and public prosecutors alike and accused persons have been committed to the High Court on such certificates. The question is, is this practice we have been following for the long time lawful? I cannot answer this question in the affirmative because there is no clear authority as to that. Equally, I cannot answer it in the negative based on my interpretation of the Criminal Procedure Code as it is merely observation…If I did that, I may be acting in excess of my jurisdiction because it will tend to challenge the powers of the DPP which this court has no jurisdiction. If the answer be affirmative, then my view will be to comply with section 255 of the CPC, if it be in the negative then this court will order a preliminary inquiry and refer certain questions for consitutional determination. I am not prepared to accept that this is a Constitutional issue so that I can refer it to the appropriate court under article 82 of the Constitution but I hold the view that it is a proper matter for judicial review. Therefore, I here allow an adjournment to enable the accused person seek a declaration on the certificate in the High Court. If after 15 days I have not recieved communication to this, then I will have the option of proceeding as per practice,” said magistrate Simusamba.