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State struggles to explain flawed certificate committing HH to High CourtBy Mukosha Funga on 4 May 2017
Lusaka magistrate David Simusamba has adjourned the HH treason case to tomorrow after the State struggled to explain the irregularities in the Certificate of Committal they submitted in court, seeking to take the UPND leader to the High Court for trial.
And magistrate Simusamba has ordered that the State surrenders vehicles which were taken from Hakainde Hichilema’s house on grounds that they were seized without a seizure notice.
The judiciary suspended court hearings today to pave way for the on-going Law Association of Zambia (LAZ) Annual General Meeting, but the defence and prosecution agreed to go ahead with the treason case.
When the matter came up for commencement of preliminary inquiry into the viability of the treason charge leveled against HH, the State said it had received instructions from the DPP’s office to commit the accused to the High Court for trial; and went ahead to produce a Certificate of Committal before the court.
But defence lawyer Mwiimbu reminded magistrate Simusamba that he had ordered for a preliminary inquiry into the viability of the treason charge against HH and wondered why the State was trying to avoid the process.
HH’s lawyers then sought a 15 minutes adjournment to study the Certificate of Committal before they returned to rubbish it after identifying some flaws.
Defence lawyer Keith Mweemba asked Magistrate Simusamba to take interest in the fact that the accused persons in the earlier treason indictment, which was read in court last week, were different from those named in the Certificate of Committal to the High Court.
“We have a number of issues that we wish to be placed on record that border on Constitutional precedence among others. The first issue is that this court explained the charge in relation to overt act number one, which is clearly referring to A1 and A6… the committal certificate before you says, ‘A1 and A5’. Clearly your worship, there is no certificate of committal before you. And this court has never explained the first overt act to the accused… it may be interesting to note that the DPP has not in person issued any certificate of committal in a matter of serious public interest, as this committal shows that it was issued by the deputy state advocate Mirriam Mutebi Bah- Matandala,” Mweemba submitted.
“Obviously it is a given fact that there was no application made before you to amend the charge and this court is being invited to commit people in a vacuum. The state keeps shifting positions like a river on soft sand constantly. If this does not signify bad faith, then what is it your worship? Should people be incarcerated for an unbailable offense on the pretext of a bad charge which does not indicate the offense just because the state thinks that due process will follow?”
He added: “The only reason why this treason charge is still standing is because it is not bailable. The state know deep down their hearts that even under any stretch of imagination, there is no treason to talk about here. If someone wanted to be so bad hearted, they should have brought a traffic offense directed at the people who may have committed the offense.”
Mweemba then cited cases where the authority of the DPP was challenged, and went further to apply that the case be sent to the High Court for Constitutional review.
“We raise these questions because clearly, the state wants to perpetuate the incarceration of the accused hence this bad faith of avoiding a Preliminary Inquiry (PI) by issuing a bad certificate of committal. The only reason why the state has issued this certificate is to gag this court and curtail its jurisdiction. Because through a PI, you have the power to set the accused free. I wish to advise that this court should refer this matter to the High Court,” Mweemba submitted.
Lawyer Marshal Muchende asked the court not to consider the document as a Certificate of Committal.
“The paper that was handed to you by the State purporting to be a certificate committing HH and others to the High Court for trial signed by Marriam Mutandala is no certificate at all. The certificate is supposed to be issued by the DPP. And the person holding that position right now is Lilian Shawa Siyunyi. The power vested in an authority can only be delegated if the law permits such and in the manner that the law has prescribes. Where is the writing from Mrs Shawa Lilian who is the substantive holder of the position of DPP to allow Ms Matandala to be the issuer of this certificate? If you read the ending of this certificate; ‘now therefore, I Marriam Matandala deputy chief state advocate on behalf of the DPP for the Republic of Zambia, pursuant to the powers vested in me….’ Who is this Marriam to sign as though she is the one vested with the powers to sign as DPP, which constitutional officer bearer is appointed by the President of the Republic of Zambia?” Muchende wondered.
“This so called certificate is a nullity and it is not even worth the paper it is written on. A signed letter giving Ms Matandala authority to issue the instructions should have been produced to you.”
Senior state advocate Bob Mwewa joined the prosecution team and applied for a 15 minutes break to study the submissions made by the defence after which he asked for an adjournment.
“We are unable to respond this afternoon. As officers of the court, we have a duty to the court to see that justice is done and in that duty, we must help the court come to the decision and we can only be diligent in that duty when we are accorded additional time in which to respond,” submitted Mwewa.
“This matter was scheduled for two dates, today and tomorrow we apply that the matter comes up tomorrow for response and possible reply to the defense. Justice rushed us justice buried. We seek the courts indulgence to grant an application for an adjournment.”
Defence lawyer, Nelly Mutty responded saying, “We have a few challenges in view of the fact that our clients are in detention and any adjournment prolongs their stay in detention. We are however alive to the fact that the state needs time to respond to our submissions and we will also need to reply if there will be need for that. We will therefore reluctantly agree to an adjournment for tomorrow as we were given two days for this hearing.”
Magistrate Simusamba then adjourned the matter to tomorrow 09:00 hours.
Earlier, HH’s lawyers raised fresh preliminary issues, accusing the state police of using vehicles belonging to the accused for police operations.
Mutty told the court that the state police seized two motor vehicles in April 2017 without a seizure notice.
She said police seized two vehicles and a Samsung galaxy 7 phone, which were in possession of accused “A3” Muleya and “A4” Mulunduka, adding that the said items were being used by police without consent from the owners.
“We understand that these two motor vehicles are being used by the police in their operations without the authority of the accused. We seek your intervention to release the said items as they have nothing to do with the case pending before this court,” she said.
In his ruling, magistrate Simusamba directed the State to surrender the vehicles.
“I have directed my mind to the substance of the matter. I cannot agree less with the defense when they say that without seizure notices, they are holding on to the property illegally. There is therefore no merit to the objection. I therefore order restoration of the property,” magistrate Simusamba ordered.
About Mukosha Funga
Mukosha is interested in good governance and anti-corruption reporting.
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