The State has objected to the application by seven court officials and three businessmen accused of trafficking in 80.11 grams of cocaine which was an exhibit in another case, to undergo medical examinations at a health facility of their choice.
The State has submitted that the accused persons, who complained of undergoing torture while in police custody, can be examined by prison authorities because the prisons in Lusaka have medical facilities.
In this matter, the 10 accused persons are accused of trafficking in 80.11 grams of cocaine which was an exhibit in a matter in which Sydney Mwansa, Shaibu Likuta and Teddy Matanda are jointly charged with trafficking, which is before magistrate Kenneth Mulife’s court.
The businessmen are Eric Chipango, Emmanuel Chimba and Charles Nkhuwa, while the court officials are; Emmanuel Chirwa, Bearvan Mengo, Mathews Mukanda, Victor Nzaila, Florence Mushoka, O’Brian Muyunda and Didie Kangwa, a senior clerk of court.
The 10 accused persons are facing one count of trafficking in narcotic drugs while Chimba, a businessman, has been slapped with another charge of trafficking in narcotic drugs and being in possession of property suspected to be proceeds of crime.
They had all denied the charges.
However, out of the 24.19 kilograms of cocaine that is alleged to have gone missing , the suspects are only alleged to have trafficked in 80.11 grams, details on where the rest of the cocaine went remain unknown.
The defence lawyers comprising of Keith Mweemba, Zevyanji Sinkala, state counsel Irene Kunda as well as other lawyers from legal aid board, had asked the court at the last sitting to order for a medical examination of the accused persons as they were allegedly tortured during their stay in police custody.
They had also submitted that the state should not allow officers from the Drug Enforcement Commission to be used as state witnesses once trial commenced because they were interested parties in the matter.
And when the matter came up for a response from the State before a Kafue based magistrate Kawama Mwamfuli who sat in Lusaka, the State first apologised for coming to court late.
They argued through Deputy Chief State Advocate in charge of taxation and financial management unit Gamaliel Zimba that they were not against the idea of the accused persons undergoing medical treatment but they were objecting to the application by the defence to have the accused persons examined at a medical institution of their choice.
They submitted that the accused persons could be examined by prison authorities because the prisons in Lusaka had medical facilities.
“Your honour, we wish to state that we are not objecting to the application to have the prisoners undergo medical treatment or examination. What we are objecting to is that the said treatment or examination should be done at a medical facility of their choice. Your honour Part four of the Prisons Act Chapter 97 of the Laws of Zambia provides for the appointment and duties of medical officers in prisons. And it is a notorious fact that the prisons services in Lusaka do have a medical facility which they should attend to the concerns raised by the prisoners,” they said.
The State questioned whether the information of the alleged torture had been brought to the attention of a medical officer at the prison the accused were detained.
And on the defence’s submission that the State should not allow officers from the DEC to be used as state witnesses once trial commenced because they were interested parties, the State argued that the defence’s submission amounted to them placing evidence on the record from the bar.
“Your honour that issue as raised by the defence sits at the heart of these proceedings and is an issue that can not be disposed off without summoning for evidence. It was highly irregular for the defense to touch on matters bordering on evidence. In the midst of that argument by the defence, is that being raised with this court as a constitutional issue? What is it that the defence are seeking to this court by raising that issue?” they submitted.
In response to the latter issue, the defence through defence lawyer Keith Mweemba argued that at no point did the defence invite the court to adjudicate on Constitutional issues.
“Obviously the State has not given any meaningful response because at no point did the defence either invite this court to adjudicate on Constitutional issues. We simply invited this court to take judicial notice of article 18 of the Constitution on fair trial. The reason for the invitation was that when full trial commences, there should be no argument of an afterthought from the prosecution because DEC are interested party. It is not in dispute that they once had custody of the same drugs,” they argued.
They maintained their earlier submissions and asked the court to grant their application saying the allegations of torture were very serious and the accused persons could not be forced to be examined by the prison authorities because they were interested parties.
The defence further argued that the State had failed to show the court any provisions of the law which prohibited an accused who was still presumed innocent, from seeking medical attention at an institution of his choice.
“Section 17 of the Prisons Act has completely being cited out of context. This section contains a provissal and the State has failed to point at the provisions in the act to which this provision is subject. In fact the provision has nothing to do with medical examination on allegation of torture. The provision talks about the duties of a medical officer that’s all. As a matter of fact, the law does not exclude the requirement of the accused to be attended to by medical personnel of their choice,” they argued
“Once again I invite this court to take judicial notice of the contents of another public record where this similar application arose and we were successfully granted by the court in the case of the people Vs Hakainde Hichilema and others. They cannot be forced to be examined by the prison authorities, the prison are interested parties. Allegations of torture are very serious. Do we trust prison authorities to give a fair report as to whether the accused persons were tortured or not? Some of the wounds they sustained at the hands of the state are healing and we need a very serious medical personnel to prove that indeed they were tortured.”
The matter has been adjourned to October 3, at 09 hrs for ruling and possible trial and October 15, 17 for trial.