Defence lawyers representing seven court officials and two businessmen charged with trafficking in narcotic drugs have asked the Lusaka Magistrates’ Court to refer the matter to the High Court to determine the constitutionality of the proceedings.
And the lawyers have applied for a Constitutional bail in the High Court, saying the move was necessitated by the conduct of state authorities when they rearrested the accused persons, detained them at unknown place and held them incommunicado without the knowledge of their lawyers.
This is the matter in which businessmen Eric Chipango, Emmanuel Chimba and court officials Emmanuel Chirwa, Bearvan Mengo, Mathews Mukanda, Victor Nzaila, Florence Mushoka, O’Brian Muyunda and Didie Kangwa, a senior clerk of court, are facing four counts of trafficking in narcotic drugs and two counts of theft by servant.
Last week, the Director of Public Prosecutions entered a nolle prosequi in a case in which the court officials and two businessmen were facing three counts of drug trafficking in relation to the disappearance of 24 kilogram of cocaine, which drugs are subject of criminal proceedings before another court.
However, upon their release, the accused persons were again re-arrested.
When the matter came up for plea before a Siavonga based magistrate Victoria Chitulangoma sitting in Lusaka, Tuesday, the State made an application to amend the indictment from count one to four, proposing that the term ‘psychotropic substances’ in the particulars of the offence was amended to read ‘narcotic drugs’.
The application was granted after the defence lawyers comprising; Keith Mweemba, Jonas Zimba, Nicholas Chanda, Zevyanji Sinkala, S Mbewe, P Muya, I M Kunda and Makondo Simubali said they had no objection.
But before plea could be taken, Mweemba raised some preliminary issues as regards the irregularity of the proceedings.
He observed that when the matter was before a Kafue based magistrate kawama Mwamfuli, the State entered a nolle prosequi at the time when they were supposed to reexamine their first witness.
He observed that procedurally whenever there was an application by another party, the other party should be given an opportunity to respond.
Mweemba argued that in this case, the State entered a nolle and the court discharged the accused persons without the defence lawyers being given an opportunity to be heard.
Mweemba said the State disregarded article 18, clause 2 paragraph A of the Constitution which stated that an ‘accused was innocent until proven guilty’ and treated the accused like criminals.
“Immediately the accused were discharged, hardly had the court exited that door, than the State authorities swung into full action effecting a purported rearrest on the accused persons, causing one accused person to collapse. They were taken to unknown place of detention without the knowledge of their lawyers and were held incommunicado. The state ought to have known that the accused have legal representatives,” he said.
And Mweemba said the defence had filed an application for Constitutional bail in the High Court last week, which was necessitated by the conduct of state authorities.
“This application is to invite this court to refer this matter to the High court, for the High court to determine the constitutionality of these proceedings. The High court will be invited to answer the questions on; the total consideration of the record before honourable Kawama Mwamfuli, are these proceedings in compliance with article 18 of the Constitution? Going by the conduct of state authorities as can be established from the record, are the previous and these proceedings in compliance with articles 13, 15, 17, 22 of the Constitution?” he asked.
He further questioned whether the entry of a nolle prosequi in the previous matter by an advocate from NPA was authorised by the DPP and whether it was Constitutional.
“This court has power to inquire as to whether the entry of the nolle prosequi is done in good faith and is Constitutional. From the records, this nolle prosequi was entered by Ms Grescillia Mulenga. Where did the DPP authorise the advocate here in writing? Especially that the reason for adjourning the matter that afternoon, the State had asked the court to go for lunch and come and reexamine the witness after lunch but only to be shocked with a nolle,” he said.
Mweemba said another reason why they were questioning the irregularity of the proceedings was that there was no warn and caution statement entered from the accused after their rearrest, which was mandatory.
Another defence lawyer Jonas Zimba argued that article 18 of the Constitution had been breached.
He prayed that the matter would be referred to the High Court to determine whether in breach of article 18, the accused would receive a fair hearing.
And defence lawyer Nicholas Chanda said since the accused were not warned and cautioned, they were wrongly in court hence they should be set at liberty.
The State advocates however could not respond saying they needed more time to engage Law Enforcement Agencies to allow them effectively respond to all issues raised.
The matter was adjourned to November 12, 2018.