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Treason charge is incompetent, rules magistrateBy Mukosha Funga on 26 Apr 2017
UPND leader Hakainde Hichilema has laughed at the Overt Acts as stipulated in the indictment for his treason charge.
And police used teargas canisters to disperse UPND supporters who mobilised outside the court building to demand for the release of their party leader.
HH’s treason charge was allocated to magistrate David Simusamba who read out the charges to the accused persons and they all said they understood the charges.
When magistrate Simusamba entered the packed courtroom, he ordered all attendees who were standing to leave the room, with an exemption for journalists.
HH’s lead defence lawyer Vincent Malambo then introduced the 17 lawyers who have been hired to win the treason case for the 54-year-old wealthy businessman and renowned politician.
Noted among those who were placed on record are: Robert Simeza SC, Mulambo Haimbe, Nelly and Kashumba Muty, Chad Muleza, Jack Mwiimbu, Nchimunya Mwange, Dr Henry Mbushi, S. Sinkala, Martha Mushipe and Lastone Mwanabo.
Others were Keith Mweemba Marshall Muchende, Milner Katolo and Nathaniel Inambao.
As magistrate Simusamba read the Overt Acts, which formulated the treason charge, HH broke out laughing as other court attendees joined him.
HH said he understood the charge along with his co accused and they pleaded not guilty.
Magistrate Simusamba explained that he could not grant the accused bail, adding that until he received a certificate from the DPP, the matter would not commence.
Defence lawyer Keith Mweemba then submitted that Magistrate Simusamba had the power to make an order for the holding of a preliminary inquiry where the accused persons were appearing before it for offenses triable by the High Court.
“This court has power to make an order for the holding of a preliminary inquiry where the accused persons are appearing before it for offenses triable by the High Court. The court can also take judicial notice that this is not the first time the accused are appearing in court for the same charge. I invite your worship to the Supreme Court decision I. The Shamwana and 7 others case…this is a reallocated matter where a similar case for a preliminary inquiry was argued and granted by the previous presiding magistrate without objections from the State,” submitted Mweemba.
“Guided by the principles of justice and fair trial under provisions of article 18 in the Bill of Rights and article 118 clause 2 paragraph 2 which stipulates that justice shall not be in vain. We pray that you may grant the application of the holding of a preliminary inquiry in this matter.”
Prosecutor Noah Mwanza applied for adjournment to study the application made by the defence team.
“We seek an adjournment to enable us to respond effectively to the application made,” said Mwanza, as Malambo objected.
“Justice delayed is justice denied. This is not the first time these issues are alluded to and only one section of the law has been cited and those provisions are very well known. We plead with him that he does not become part of the process of delaying and therefore denying justice. The application in my view merely endeavors to delay the process,” argued Malambo.
In his ruling, magistrate Simusamba said: “Considering that the matter is appearing before me for the first time, I will reluctantly grant them an adjournment. The shortest possible one,” he said and adjourned the matter to tomorrow 09:00 hours.
Magistrate Simusamba then sent HH back into detention.
HH has been detained for the past 16 days.
Meanwhile, police used teargas to disperse unruly UPND cadres who mobilised outside the court premises to demand the release of their leader.
This happened while HH was being moved from Magistrate Malumani to the allocation court and to Magistrate Simusamba’s court.
Hundreds of armed police officers sealed off all entries into the court complex with a strict screening process for those who sought to attend the court proceedings.
The cadres chanted “Free HH” slogans as they surged towards the court premises.
Police however moved in and quickly dispersed them using teargas.
Police spokesperson Esther Mwata Katongo could not confirm whether or not officers managed to arrest any of the UPND supporters.
She referred queries to Lusaka Province Police Commissioner Nelson Phiri who was unreachable
HH COURT UPDATE 11:30HRS
Magistrate Malumani has granted HH bail at K10,000.
HH’s lawyer Vincent Malambo applied for bail, stating that in the absence of a treason charge in the magistrate’s court, the accused was accused of misdemeanors and qualified for bail application as he was of fixed abode.
The state through prosecutor Zimba did not object to the bail application, but reminded the court that the accused persons were facing another charge of treason which would be taken to another court.
He said the interest of the state was to ensure that the accused persons appear for trial on all dates indicated by the court. He added that the state’s only plea was that the court sets bail conditions that would not defeat the course of justice.
In ruling magistrate Malumani said: “The court bears in mind that the accused are facing another charge which is not bailable,” he said
But he said he could still make a ruling based on the charges before him. He said he was granting bail in the accused person’s own recognizance at K10,000 each with two working sureties.
Magistrate Malumani then set May 10 and 11 for commencement of trial.
HH has remained in detention awaiting bail formalities, but he has been taken to the allocation court where the treason charge would be assigned to another court.
On quashing the indictment on treason on grounds that it lacks overt acts, magistrate Malumani said he agreed with state counsel Malambo when he said that overt acts must be stated in the indictment.
“The charge is undoubtedly incompetent,” he said.
But he noted that the state had applied to amend, adding that the state prosecutor contradicted himself by saying that the charge was bad.
He added that the state could not amend a bad charge because a bad charge is no charge at all.”
“The charge is ineffective… There is no power in the court to amend a bad charge… Only a charge with small defects which do not embarrass the accused.”
He said he expected the prosecution to site an authority which permits the court to amend a bad charge if at all there was such an authority.
“There is no dispute that this statement (the indictment) does not disclose what the accused did in preparing to overthrow the government,” magistrate Malumani ruled.
“Let me also point out that it is unfortunate that the prosecution described the government using Edgar Chagwa Lungu’s name. They should have known that the term government means the government of Zambia. So the accused could only be accused of overthrowing the government of Zambia. If the prosecution took time to look at the law, they wouldn’t have missed this.”
HH’s sympathisers were seen nodding and making agreeing noises in court as the magistrate continued making his ruling.
“What constitutes an overt act to prove treason goes beyond mere acts. They (state) should have studied precedent cases before framing the charge. We have precedents which make the law predictable. By use of precedence, you can know if you have an arguable case or not,” Magistrate Malumani said.
There is no dispute that the indictment against treason suspect Hakainde Hichilema, does not disclose what the accused did in preparing to overthrow the government, Lusaka magistrate Greenwell Malumani has ruled. Magistrate Malumani is this morning making a ruling in preliminary issues raised by treason accused and opposition UPND leader Hichilema. Magistrate Malumani says trial on count two and three will be separate from the treason charge.
UPDATE: 09:30 hours
Lusaka magistrate Greenwell Malumani is this morning making a ruling in preriminary issues raised by treason accused and opposition UPND leader Hakainde Hichilema.
Magistrate Malumani says trial on count two and three will be separate from the treason charge.
He has directed the state to draft a separate indictment of the treason charge, which will be referred to another court.
Magistrate Malumani is also making a ruling on the denial for reading materials for HH while in detention, on torture and the visit by a strange person to the opposition leader in detention at night.
He is also ruling on application to quash the treason charge on grounds that it lacks “overt act”.
Ruling on denial of reading materials for HH while in detention, torture and strange visit, Magistrate Malumani ruled that suspects have rights during investigation and the lives of suspects are envisaged in the constitution.
“The law prohibits extra judicial punishment and the constitution outlaws torture and inhuman treatment,” says Magistrate Malumani.
He says suspects are entitled to be heard on all complaints and that accused persons have the rights to seek relief on their complaints, contrary to state submissions that the subordinate court could only record.
He has ordered investigations into a strange visitor, and also that the accused be allowed reading materials through the facilitation of the officer in charge.
“It was a misrepresentation of the law to say that reading materials are a security risk,” says Magistrate Malumani.
About Mukosha Funga
Mukosha is interested in good governance and anti-corruption reporting.
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