State fails to explain why HH-co accused has been swapped

Hakainde Hichilema being taken back into detention-picture by Tenson Mkhala

The state today failed to explain why Hakainde Hichilema’s co-accused in the treason case is different from the one named in the Certificate of Committal for trial in the High Court.

And Lusaka magistrate David Simusamba has adjourned the matter to Thursday next week when he will rule on whether or not to refer HH’s treason case to the High Court for constitutional determination.

Meanwhile, after the matter was adjourned, police officers moved HH into one of the vans to take him back into detention at Central Prison, but the opposition leader refused to sit, saying the van was filled with dog faeces.

One police officer then brought a bucket of water to clean the filth, but this only made the car dirtier, as it was now drenched in filthy water.

HH complained that he would not sit in a pool of filth water causing the police to take him back in the holding cell.

This caused drama outside the magistrate’s court as UPND cadres cheered for their leader while mocking police.

The officers quickly used their police dogs to scare away the UPND supporters.

Earlier, the a weak submission from the state gave an edge to the defence team who insisted that the matter be referred to the High Court for constitutional consideration, arguing that the defects in the certificate were making in difficult for HH to understand whom he may have conspired with to overthrow the Zambian government.

Yesterday, the defense punched holes into the Certificate of Committal, saying it should have been signed by the DPP herself and noted that there were errors in the charges on the indictment.

But when the matter came up today, State prosecutor Bob Mwewa submitted that the DPP had powers to delegate her roles and it was not necessary to produce a written submission of such instruction.

“In our response, we state that the office of the DPP is established by article 8 of he constitution of the republic of Zambia as amended. Article 180 sub artilce 8 of the constitution provides that the functions of the DPP may be exercised by any other person authorized by the DPP under general specific instructions… It allows the DPP to delegate her powers to deputy chief state advocates, principal state advocates, senior state advocates, state advocates, prosecutors and other persons appointed by the national prosecutions authority,” he said.

“The Certificate of Committal before this honorable court is valid because the power used to sign that document was delegated. The DPP is committing through the deputy chief state advocate and not the deputy chief state advocate herself. That is the position.”

Mwewa submitted that magistrate David Simusamba had no authority to hear any matters concerning the treason case because it was no longer before him.

“The court is mandated by law to commit the accused person and transmit the record forthwith without delay. It is our humble submission that the court cannot determine any other matters before it because the matter is no longer before it. Therefore with respect to the very important constitutional issues raised it is our view and our submission that this honorable court cannot hear and determine those issues because this matter is no longer before it,” Mwewa said.

He said the State was committed to expediting the case.

“These issues are not vexatious… the state has produced a certificate in less than a month of the accused appearing in this court. In less than a month, the matter is being committed to the High Court for trial. And this is being done to observe the rights of the accused persons as per article 13,” said Mwewa.

Defence lawyer Keith Mweemba responded: “The starting point that I want to bring to the attention of the court is to quote verbatim the response from the state; ‘These constitutional issues as raised by the defense are not vexatious’ It simply means one thing that state has magnanimously conceded and we thank them for that. They have conceded to the application for constitutional review”

At this point, Mwewa interjected saying he did not concede, but magistrate Simusamba reminded him that indeed he said as Mweemba quoted him and therefore, Mweemba was going with the meaning of that submission.

Mweemba then went further to outplay the State’s argument, wondering why the prosecution team did not explain the swapping of names in the treason indictment and in the Certificate of Committal.

“The state, on the issue of the committal have not sufficiently addressed the issue of the badness or defectiveness of the certificate of committal. What makes it valid when it talks about an accused person in the first Overt Act who is not mentioned in the indictment? And the court did not mention the charge to that person? I expected my colleagues to do better,” said the Mweemba causing some giggling on the prosecution team.

“That certificate is at variance to the indictment and they have not disputed that. It is a fact. Further, even A1, HH does not know to this day, who he may have conspired with because the indictment and committal are not the same. These laws are archaic! Treason, do we need this law in a liberal democracy? That’s why we want to refer this matter to the High Court because we want to show that this law is unconstitutional. And we have reserved our arguments for the High Court. The state has lamentably failed this morning to address the court on that committal. Is that a general direction by the DPP or is that a special direction? The court will never know.”

         

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