An officer in charge has admitted in the Lusaka Magistrates’ Court that the demonstration by the fire tender protesters last year was peaceful and that citizens have a right to demonstrate peacefully in matters of public interest.
And Anthony Phiri, 42, a Chief Inspector at Emmasdale Police Station said it was his personal decision not to allow the protesters to enter Parliament premises, an order which is contrary to the Constitution.
This is the matter in which Alliance for Community Action Laura Miti, PeP president Sean Tembo, Zambia Council for Social Development executive director Lewis Mwape, Pilato, Bornwell Mwewa and Mika Mwambazi, are charged with one count of disobeying lawful orders.
The accused were nabbed outside Parliament building in Lusaka on September 29, 2017 as they were protesting the purchase of 42 fire trucks for $42 million.
When the matter came up for commencement of trial before magistrate Mwaka Mikalile, Monday, Phiri, an officer in charge, explained that the fire tender protesters had no invitation cards to enter Parliament premises.
He further explained that when he ordered them to leave, the accused refused and insisted that they wanted to enter the premises.
“Around 13:00 hours, while performing our duties at Parliament grounds, I saw a group of people along Great East Road. At first I didn’t do anything because they were on that road. Afterwards they started moving towards Parliament building (on Parliament road) while carrying placards. This prompted me to find out if they were invited. Instructions were that all people going to Parliament should either have an invitation or must be MPs. This was happening during budget presentation at Parliament,” he explained.
“They told me that they had no invitation card but had a written request to go and march at Parliament. I ordered them to leave because they didn’t have invitation but a mere request which was not addressed to Parliament so they had no authority to march. They insisted that they would go ahead and enter Parliament. I told them not to go ahead and go back. I ordered them almost three times but they refused and insisted that they wanted to go into Parliament.”
Asked by defence lawyer Keith Mweemba what authority he was using to order the protesters to leave, Phiri said he was using service instructions.
He said after the protesters refused to leave, he ordered his officers to apprehend them.
“I ordered the officers who were with me to apprehend all those who were trying to march to Parliament. I apprehended one person who I came to know as Sean Tembo. I apprehended him along Parliament road the road leading into Parliament building,” Phiri said.
Below is a verbatim of the Cross Examination:
Mweemba: The accused persons did even not reach National Assembly?
Phiri: Because where I apprehended them was not at Parliament, [it was] the road leading to Parliament.
Mweemba: You talked of service instructions that would give you authority to order not to do anything, who has these service instructions? Can you produce them in court?
Phiri: I don’t have them.
Mweemba: What is superior, these service instructions or the Constitution of Zambia?
Phiri: Definitely the Constitution of Zambia.
Mweemba: You do agree with me that the accused have the right in this democratic state to demonstrate peacefully?
Phiri: Correct.
Mweemba: In fact, the Constitution, as amended, is very specific about upholding the democracy and Constitutionalism. Now, among the various principals of democracy, do you agree with me that freedom of expression is among the principles of democracy?
Phiri: Correct.
Mweemba: You also agree with me that accountability and transparency are also the principles of democracy?
Phiri: Correct.
Mweemba: And you do agree with me that the citizens have the right… maybe before I even go there, the other principle of democracy is ‘citizen participation and sovereignty of the people’ right?
Phiri: Yes
Mweemba: And because of that fundamental principle, you also do agree with me that these citizens in the dock, have the right to participate in public affairs and demand for accountability and transparency in terms of use of public resources?
Phiri: Correct.
Mweemba: And this demonstration was peaceful right?
Phiri: Correct.
Mweemba: And you apprehended them and they complied correct?
Phiri: Correct.
Mweemba: And you actually know that this peaceful demonstration was for public awareness concerning the purchase of 42 fire tenders. You are aware about that?
Phiri: I am aware.
Mweemba: You do agree with me Mr Phiri that you pay tax right? And the accused also pay tax?
Phiri: Yes.
Mweemba: And budget presentation is a public event. You do not need to be given an invitation card. There is a public gallery in Parliament, members of the public go and sit there. You are aware about that?
Phiri: I’m aware.
Mweemba: Members of parliament are representatives of the people who include those accused persons. So these people have the right sensitize the public or to petition or to bring to the attention of their representatives if they are unhappy about something which involves public interest. Right?
Phiri: Yes.
Mweemba: I’m sure you are aware that the accused persons complied with the law, the public order act?
Phiri: I’m not aware
Mweemba: You do not know that the accused actually wrote seven days notice to the police. You are not aware about that?
Phiri: I’m not aware.
Mweemba: You are not aware about that? Obviously you are just apprehending people without being aware. Permission to approach PW1 with an unmarked document. You have seen that letter?
Phiri: Correct.
Mweemba: Who is the author?
Phiri: The author is Laura Miti executive director of Alliance for Community Action.
Mweemba: Confirm to the court if that letter was received by the police
Phiri: It was received at Lusaka Division on September, 20 2017.
Mweemba: Read the reference.
Phiri: (Reads the letter…) Notice to hold peaceful public demonstration at Parliament grounds.
Mweemba: If you go to the next page what was the date of this demonstration? They are being informed on the 20th that they are going to conduct a peaceful demonstration on which date?
Phri: September 29, 2017.
Mweemba: Yes, nine days later. The public order act requires how many days notification before the event?
Phiri: Seven days.
Mweemba: So they were within the stipulated period am I right?
Phiri: Correct,
Mweemba: Permission your worship to show the witness another unmarked document. What is the date of the response from Zambia Police?
Phiri: (Reads…) September 26, 2017.
Mweemba: Who is the author?
Phiri: Mr G Kunda deputy Commissioner of Police.
Mweemba: To whom is it addressed?
Phiri: Executive director of Alliance for Community Action.
Mweemba: What’s the subject matter?
Phiri: Notice to hold a peaceful public demonstration.
Mweemba: Read the first part of the contents.
Phiri: (Reads…) ‘Refer to a letter dated September 20, 2017 to hold a peaceful demonstration. We would like to inform you that we were willing to facility for this demonstration, unfortunately the police officers to facilitate this demonstration will be very occupied with other national duties. You are advised not to proceed with the demonstration’.
Mweemba: Yes. Mr Kunda is saying there were no police officers, now if there were no police officers to actually facilitate this peaceful demonstration, who apprehended these people? If the police had other duties?
Phiri: It was police officers who were at Parliament providing security.
Mweemba: So all of a sudden, police officers who were not there to facilitate a peaceful demonstration, disrupted the peaceful demonstration and apprehended them? And the accused were in the same area with police present?
Phiri: That’s not correct.
Mweemba: So what’s correct? In that area where the accused were going, there were a lot of police officers. And their presence was to ensure that there’s peace and order and property is protected. When the accused where in that area no property was damaged right?
Phiri: Correct
Mweemba: And it is not the duty of the police to disturb people who are peaceful correct?
Phiri: Correct
Mweemba: On whose superior orders did you act to disrupt a peaceful demonstration?
Phiri: It was my order. I acted on the rules of engagement.
Mweemba: Are these rules of engagement written down?
Phiri: No they are not written. They are just from police experience and work.
Mweemba: Who wrote those service instructions you talked about earlier?
Phiri: That’s a book that guides you on how we should operate.
Mweemba: Who wrote that book?
Phiri: It’s the police.
Mweemba: Kindly tell the court the title of this book?
Phiri: Force standing orders and force instructions.
Mweemba: What came first these rules or the Constitution as amended?
Phiri: Rules have been there from the time I joined the police.
Mweemba: What are you looking at?
Phiri: A letter addressed to the inspector general of police September 20, 2017 by Sean E Tembo. Reference ‘notice of country wide demonstration against government corruption regarding the purchase of the 42 fire tenders’.
Mweemba: Confirm the letter was received.
Phiri: There’s a date stamp from Zambia police on the same day.
Mweemba: You are aware that to this date there has been no response from the police to this letter.
Phiri: Not aware that there has been no response from the police to this date.
Mweemba: But ordinarily the police are obliged by the law to respond?
Phiri: Correct.
Mweemba: The public order act makes it mandatory for the police to have responded?
Phiri: Yes it’s mandatory.
Mweemba: So here is Sean Tembo, he notified the police in accordance with the law right from what you have read. He followed the law in notifying the police right.
Phiri: Correct
Mweemba: And now, after notifying the police, he receives no response to his letter. And on the day of demonstration he decides go ahead and have a peaceful demonstration because he had complied with the public order act. What lawful authority did you have to apprehend the man who is following the law?
Phiri: That letter was addressed to Inspector General of Police.
Mweemba: You are not answering the question. He complied with the law?
Phiri: Correct
Mweemba: What was the legal basis for you to stop a man that had followed the law?
Phiri: Mr Sean Tembo could have gone anywhere on that particular day to demonstrate but not at Parliament. There were specific instructions.
Mweemba: Who issued those instructions?
Phiri: That was in a meeting between Parliament Security and the Zambia police.
Mweemba: Who attended that meeting?
Phiri: Police officers and members of security from Parliament. It took place from Parliament.
Mweemba: Who attended the meeting?
Phiri: I’m one of them.
Mweemba: Who chaired that meeting?
Phiri: I can’t disclose who chaired it, it was security officers from Parliament.
Mweemba: On what basis can you not disclose? Because this is a court of open justice. So there are no secrets here. Who attended?
Phiri: Zambia police officer namely chief inspector Moya, we were just the two of us from Zambia police.
Mweemba: Who chaired it.
Phiri: Can’t recall their names.
Mweemba: When was this meeting held?
Phiri: Beginning of September.
Mweemba: Who took minutes?
Phiri: No one took minutes.
Mweemba: Why?
Phiri: Because of security matters.
Mweemba: What was secret about it?
Phiri: How we should operate on that day when the budget will be presented. That no one should enter Parliament building without invitation.
Mweemba: That in itself is unconstitutional going by our constitution. Parliament is a public institution. People whether invited or not are invited to go there. Parliament is a public institution, right?
Phiri: Correct
Mweemba: They are entitled. So now I want to know who is this person who comes up with unconstitutional order to say people without invitation cards should not come? Who is that person?
Phiri: There’s no person who issued those instructions.
Mweemba: Therefore, it was your own decision, personal?
Phiri: Correct. It was a personal decision.
Mweemba: Indeed MPs where not disturbed in any way during this demonstration right?
Phiri: Correct.
Mweemba: I asked you earlier that demonstrating in a democracy is a fundamental right and your answer was in the affirmative. You also agree with me that not only is their right, it is also their duty as citizens, to conduct peaceful demonstrations on matters of public interest right?
Phiri: Correct.
Mweemba: You decided as an officer on your own to stop that. You made a personal decision to stop the exercise of that Constitutional right and Constitutional duty?
Phiri: Yes.
Mweemba: Are you the Constitution of Zambia?
Phiri: No
Mweemba: Who is superior between you and the Constitution?
Phiri: The Constitution.
Mweemba: And you have the duty to obey the Constitution?
Phiri: Yes
Mweemba: And on this day you chose to disregard the Constitution?
Phiri: I did not choose to disregard the Constitution.
Mweemba: You chose to disregard the law and apprehend people who have obeyed the law. Did anyone from the police arrest you?
Phiri: No.
Mweemba: Was any police officer arrested for failing to respond to a genuine letter?
Phiri: No one.
Mweemba: It is mandatory to respond and that response was not given by the IG. When the law is mandatory what do you understand by that?
Phiri: I’m not sure whether they responded or not. According to what I read the letter was responded.
Mweemba: The letter by Sean Tembo was not responded to. Failure to respond is breaking the law on the part of the police.
Phiri: I’m not sure.
Mweemba: I will make you to be sure. How long have you being in the service?
Phiri: I have been in the service for 23 years.
Mweemba: And your role is to enforce the law?
Phiri: Correct.
Mweemba: The police did not act in the manner approved by the law?
Phiri: Correct.
Mweemba: Failure by the police to follow the law, it means it’s a breach of the law?
Phiri: Correct.
Mweemba: You did not arrest yourselves as police but the law was breached.
Phiri: No.
Mweemba: If a Law Enforcement officer breaches the law, what should happen? What should happen to a law enforcement officer who is supposed to enforce breaches the law with impunity?
Phiri: It depends with what type of the law.
Mweemba: What should happen to that officer?
Phiri: There is a lot of action that can be taken. A tribunal can be held. He can be reprimanded. If the law demands for (an arrest) he can be arrested.
Mweemba: Has the tribunal being constituted to deal with the police officers who broke the law?
Phiri: No.
Mweemba: Has anyone been reprimanded for failing to obey the Public Order Act within the police?
Phiri: No
Mweemba: By being at that position they (protestors) were exercising their freedom of movement?
Phiri: Correct.
Mweemba: As far as you are concerned, they were also exercising their freedom of expression?
Phiri: Correct
Mweemba: They were also exercising their freedom of conscience?
Phiri: Correct
Mweemba: You knew that they had these rights even at that time?
Phiri: Correct.
Mweemba: You did not even bother to verify that indeed these people had informed the police. Whether they were telling the truth on that particular day right?
Phiri: Correct
Mweemba: If you had bothered to ask, you would have acted differently right? You would not have arrested them?
Phiri: It depended on the situation on the ground.
Mweemba: Would you have acted differently than you did if you had known?
Phiri: Depending on the situation which was on the ground. The situation on the ground did not allow to. I would have acted the same.
Mweemba: Who were these people who were opposing the peaceful demonstration?
Phiri: Other members of the public.
Mweemba: As the police who are you supposed to protect, the person obeying the law or the person who is opposing these people who were obeying the law?
Phiri: People obeying the law.
Mweemba: In this case who were you supposed to protect, those opposing the demonstrstion are the ones who were breaking the law. Your duty was to protect the peaceful demonstors.
Phiri: Yes
Mweemba: To this day those people who were opposing the peaceful demonstors have not been arrested right?
Phiri: Yes
Mweemba: Are you supposed to apply the law separately?
Phiri: No.
Mweemba: Are you aware that these are cadres from a named political party who were opposing that demonstration?
Phiri: Not to my knowledge.
Gilbert Phiri takes over cross examination: Just a few questions from me. You agree with me that the budget presentation is held once every year?
Phiri: Correct.
Gilbert: Friday September 29, 2017 is the day they intended to demonstrate. You agree with me that instead of allowing them to demonstrate on that day, the police encouraged them to come up on an alternative date. And seeing that the budget presentation was coming up on September 29, this alternative day by the police was not reasonable right?
Phiri: It was reasonable
Gilbert: What were you stopping them from doing? Be clear.
Phiri: We were stopping them from marching to Parliament.
Gilbert: So they did not march to Parliament?
Phiri: Yes because they were stopped.
Gilbert: Correct. Therefore they did not breach any law right?
Phiri: They did not obey the orders.
Gilbert: Who has asked about orders? The accused did not enter Parliament right?
Phiri: Yes.
Gilbert: And you would agree with me that Parliament has its own security at the entrance right?
Phiri: Yes.
Gilbert: Now read the indictment. What are they charged with?
Phiri: (Reads the indictment…)
Gilbert: According to that indictment they were demonstrating at Zambia National Assembly. You led the team, how many were you?
Phiri: 15.
Gilbert: Clearly outnumbering the accused persons right?
Phiri: Yes.
Gilbert: And the 15 officers stopped the accused persons from moving towards Parliament right?
Phiri: Yes
Gilbert: You mentioned another group that came to stop the procession. That other group arrived using a minibus?
Phiri: Not to my knowledge. I just saw a group after they had arrived.
Gilbert: Were they wearing any known colours?
Phiri: No just normal dressing.
Gilbert: They came and did what? I want to know.
Phiri: They also wanted to disrupt those who were marching to Parliament.
Gilbert: And they did not notify the police that they were coming to disrupt those who were coming to march?
Phiri: No they did not.
Gilbert: And the other group they were more than three people?
Phiri: Yes
Gilbert: Which was a gathering. To date have you had any complaint from the National Assembly on breach of law on September 29?
Phiri: No.
Gilbert: Any complaint regarding any nuisance in the vicinity of the National Assembly?
Phiri: No complaint.
Gibert: But you yourself decided to apprehend the accused persons?
Phiri: Yes
Gilbert: Strange.
Matter adjourned to August 10, 2018 for continued cross examination.
