The State has this morning entered a nolle prosequi in the case where UPND leader Hakainde Hichilema was charged with disobeying orders to give way to President Edgar Lungu’s presidential motorcade in Mongu.
This means the UPND president and his co-accused have been freed on this particular charge, but the state can choose to rearrest the accused at any time to commence prosecution on the same charges.
When the case came up for commencement of trial before magistrate Greenwell Malumani today, the state said it was ready to proceed but had an application to make.
A state advocate then informed magistrate Malumani that the state had decided to enter a nolle in count one.
HH’s lawyers, through Jack Mwiimbu, then asked for a 15 minutes break to make consultations following the new position taken by the state.
“Whereas Hakainde Hichilema, Mamusonde Hamaleka, Muleya Hachinda, Laston Mulilanduba, Pretorious Haloba and Wallace Chakawa, stand charged with the offence of disobedience of lawful orders contrary to section 127 of the Penal Code Act 87 of the laws of Zambia. Particulars of the offence being that the accused on 8th April 2017, at Limulunga district in the Western Province of Zambia and whilst acting together with other persons unknown, did disobey an order or command, duly made by No 12453 Inspector Ndalama, in his capacity and duly authorised to give way to Presidential motorcade which you willfully disobeyed,” read the nolle prosequi.
“Now, therefore, I Gamaliel Zimba, Principal State Advocate on behalf of the director of public prosecutions for the republic of Zambia pursuant to the powers vested in me by section 81 and 82 of the Criminal Procedure Code, authorise the entry in record of proceedings that the proceedings are discontinued against the accused persons.”
But the defence rejected the nolle prosequi, saying the State should allow the accused to face trial so that they can be acquitted by the court.
“Your Honor, as the defense team, we would like to submit that the entering of a nolle by the State is an abuse of the court process. Your Honor, we are all aware that this is the 30th day of incarceration of the accused persons. Consequently the state should have been prepared to prosecute their case. We strongly believe your honor that if the state was genuine in their decision not to prosecute the accused persons on this count, they should have offered no evidence against the accused persons so that the court can acquit them,” Submitted Mwiimbu.
“A nolle prosequi is no bar for further prosecution against the accused persons. This will be lingering on their heads for a long time to come. It is our contention that the state has no evidence against the accused persons and they are using this to abuse the rights of our clients. The discretionary right of the DPP is being abused in this particular matter.”
He noted that the facts in the case, which the state was abandoning were similar to the fact in the treason charge.
“Your Honor we would like the state to take judicial notice that the facts in this count and the facts of the treason charge under overt acts are similar. It is therefore our firm conviction and submission that the state is running away from embarrassment taking into account that no reasonable prosecution would have endeavoured to prosecute the accused persons based on this count and Overt Act number 2. It is in this light that we request the prosecution to reconsider their application in this matter so that they can apply that they have no evidence in this matter and ‘acquit them accordingly’,” said Mwiimbu.
Another defense lawyer, a Mr Mwanaba wondered why the nolle prosequi was not issued by the DPP herself.
“The application by the state relating to a nolle prosequi and as quoted in the nolle itself on the second page, where Mr Zimba is saying the powers vested in him by section 81 and 82 of the Criminal Procedure Code… now when we go to this section of the CPC, it says that the DPP may order in writing that all or any of the powers vested in him by the last preceding section… The key here is that the order must be in writing. Now there’s no attachment to this nolle prosequi of an order in writing from the DPP delegating his powers under section 82 of the criminal procedure code to Mr G Zimba,” said Mwanaba.
“Therefore, this court cannot take it for granted that there was such an order when the same is not before court. These words in section 82 of the CPC were not inserted in there to simply fill up the gap. They have a purpose to serve. Therefore, this court will be in order to reject this nolle prosequi for not being duly backed by an order of the DPP to Mr Zimba who issued it. And that is our prayer.”
The State, through Ms Mwelwa said: “In response to what has been raised by the defense, we wish to state that the DPP has power to enter a nolle at any stage of the proceedings before a judgment is rendered. And in relation to the signature that is on the nolle, and the section raised by the defense, the court will note that it does not make it mandatory to have an attachment in writing to this nolle prosequi. The word used is “may”. Citing relevant cases…,” said Mwelwa as the defence team objected.
“The state advocate is misapplying the use of section 82. The word “may” does not refer any of her officers signing without any written authority. The state advocate is also misleading this court because the case she is citing is an appeal and not a matter of first instance. The state advocate should not mislead the state at this point.”
Another state advocate, Sakala, said it was necessary in the opinion of the DPP to enter a nolle prosequi and that the decision was not questionable either by the court or by the defense, as it was a prerogative of the DPP.
“And for the defense to assume that the case will hang on to the accused is preposterous because even when the court rises, we may decide to rearrest the accused. That’s the prerogative of the DPP,” said Sakala.
Magistrate Malumani then asked: “If you say you can rearrest them even tomorrow, why don’t you proceed with trial?” to which Sakala responded, “I was just making a point that those are the powers of the DPP but I was not saying they will be rearrested.”
In his ruling, magistrate Malumani allowed the nolle.
“I have examined the points raised by the defense. It is my view that the current position of he law is that a trial court cannot question the powers of the DPP. State advocates can carry out the duties of the accused by delegation. Notwithstanding the objection by the defence, I have difficulties ruling otherwise. I have no option but to allow the nolle prosequi and to discharge the accused persons accordingly. We shall now proceed with the only charge left,” said magistrate Malumani.