State fears HH’s ‘insulting’ trial may destroy treason case

State prosecutors today expressed concern that Hakainde Hichilema’s lawyers were asking a witness questions pertaining to the treason case which is before a different court.

This is in a case where the UPND leader is charged with the offence of using insulting language, and the concern was raised after the defence continued to cross-examine the state witness who is also an arresting officer in the treason case.

In his ruling, magistrate Greenwell Malumni said the witness had no option but to answer all questions put to him regardless of whether they affected the treason matter because he was an arresting officer in both cases.

Below is the verbatim of the continued prosecution of HH.

Cross-examination continues:

Defence lawyer Keith Mweemba: We ended when you were talking about your report and investigations. According to your investigations, how was the root lining done? Who was in charge?

Witness 3: I am not able to answer that for security reasons

Defence: It is there in your report. We want to determine bad faith, you have to answer and you will answer

Witness 3: On that position, I am unable to answer

Defence: The law binds you to answer and we are allowed to make applications if you don’t. This is the last warning

Witness 3: I don’t know who was in charge

Defence: Okay, how was the root lining done?

Witness 3: I don’t know, I can’t answer that

Magistrate: (Reads him provisions in the criminal procedure codes which allows the court to detain him for failing to answer questions)

Defence: Your job is to answer the question. How was the root lining done?

Witness 3: I don’t know, I wasn’t the one who did it

Defence: So you did not investigate? If you had investigated you would have known? And yet you arrested him and charged him for treason without investigating? Is that how you do things?

Magistrate: Are you also the one who investigated treason?

Witness 3: Yes Your Honour.

State: Your Honor may I be guided, of what relevance is that question when the offense before this court is not treason?

Defence: I will answer Your Honour. We can make available the Supreme Court decision… and my brothers can read and understand the relevance of this question. And we didn’t want to preempt that this record and the record before Honourable Simusamba will be used in the treason case and we also want to show bad faith that a citizen can be arrested without investigation and charged for an offense punished by death.

Magistrate: I will now make a response…

Magistrate: (asks state advocate) What discussions are you having with the witness who is on the stand?

State: It’s not a discussion per say, I’m just advising him to answer the questions

Magistrate: Okay, I will advise that you rise and make your discussion known

State: Obliged Your Honour.

HH’s arresting officer Mbita Mpazi (c) who lied to the court and later apologised

Magistrate: (after a moment of writing his ruling) I have examined the states concern on questions arising for the other charge which has been separated…I perceive no malice from the defense because the arresting officer is the same from the other case. He is in a position to respond and if he doesn’t it will adversely affect the proceedings of the other matter. A witness cannot choose what questions to be asked. (Cites relevant cases) there is no limitation on cross-examination. Issues aught to be properly understood. Muna Ndulo is the prime authority; cross-examination is the greatest invention ever made in discovering the truth.

(Magistrate allow cross-examination to continue)

Defence: According to your investigations, how was root lining done for you to charge someone with a capital offense?

Witness 3: As I said, I don’t know

Defence: so you arrested without knowing?
(Shows him an exhibit in a Habeas Corpus case involving HH in which he was the arresting officer again) This was signed by you right?

Witness 3: Yes

Defence: And you made up your mind you were satisfied to charge and arrest right?

Witness 3: Which case?

Defence: All the cases

Witness 3: Yes, I was satisfied

Defence: Since you have said you didn’t investigate? On who’s superior orders were you acting?

Witness 3: No superior orders

Defence: Tell the court the space between the officers on that Limulunga road in terms of meterage signifying that the president was going to use that route?

Witness 3: I don’t know

Defence: But you arrested?

Magistrate: What is your answer? You don’t know if there were officers?

Witness 3: Your Honor the spacing is what I don’t know

Defence: Elaborate to the court what procedure was employed when the President was going there according to the investigation

Witness 3: I don’t know; I wasn’t there.

Defence: But you investigated. Since you recorded a statement from Mr Ndalama what did he tell you? What happened in terms of route lining?

Witness 3: Your honor, as I answered in the first place…

Defence: What did Mr Ndalama tell you?

Witness 3: He didn’t tell me anything, he submitted a report

Defence: So you effected an arrest without recording a witness statement from Mr Ndalama not so?

Witness 3: I didn’t record any witness statement Your Honour

Defence: Then according to the report, how was root lining done?

Witness 3: Your Honor even, I am not Mr Ndalama maybe he…

Defence: According to the report he submitted

Witness 3: I don’t know the contents

Defence: You didn’t read the report but you effected an arrest?

Witness 3: I didn’t read Your Honour

Defence: But you effected an arrest on a capital offence?

Witness 3: It’s me who effected an arrest Your Honour

(Witness 3 crosses his arms, looking disturbed)

Defence: Did you tell this court your duties yesterday?

Witness 3: I didn’t

Defence: So on what basis did you make up your mind to charge and arrest for all these cases since you didn’t investigate?

Witness 3: I don’t remember saying I didn’t investigate

Defence: You don’t need to say you didn’t investigate, you have already proved

Witness 3: I was convinced and that’s why I made up my mind to charge him for the offenses

Defence: What convinced you?

Witness 3: I did my investigations

Defence: What are those investigations? How many times did you visit Western Province?

Witness 3: (Silence)

Defence: We can’t record silence

Witness 3: I am not silent, I visited once

Defence: When?

Witness 3: On the 8th, the day of the Kuomboka

Defence: Were you on duty on that day?

Witness 3: Yes. At Limulunga

Defence: Do you know how to investigate? Who was the commanding officer?

Witness 3: Commissioner Mr Lungu

Defence: You didn’t record a statement from him did you?

Witness 3: No.

Defence: But I put it to you, you only started your investigations on the 9th not so?

Witness 3: Yes Your Honor

Magistrate: You are going too fast, allow me to record

Defence: I am sorry, there is fire in my belly Your Honour. I will refrain

(Magistrate takes a moment to record)

Defence: If you are alleging that an offense in this court happened on the 11th, surely it doesn’t make sense that you started investigations on the 8th not so?

Witness 3: Which case?

Defence: Before this court

Witness 3: I started on the 9th

Defence: So your being in Western Province had nothing to do with treason not so?

Witness 3: It had nothing to do with treason

Defence: So you have never been to western province to go and investigate treason?

Witness 3: Investigations are wide

Defence: Answer the question. Anyway, we can’t keep arguing with you, we have already seen through you. You have no evidence that the accused has ever made a pronouncement to overthrow government not so

Witness 3: I seek audience with my lawyer

(Magistrate allows the witness to confer with state advocate for a few minutes)

Defence Lawyer Jack Mwiimbu: We are very concerned with the consultation. The witness can be coached on how to answer questions

State Prosecutor Mwelwa – – Picture by Tension Mkhala

Defence lawyer Gilbert Phiri: Just to add, this witness is a witness of fact. This witness was asked something which demands a factual answer. So we have serious concerns. And the state did not object.

Magistrate: You should have objected to the leave of the court for them to confer.

State: Can we continue just for a minute then he can be subjected to continued cross-examination.

Magistrate: in the interest of justice, I will allow cross-examination to continue and if you deem the question unfair, you can rise to object.

Defence: Do you agree with me that a person can overthrow a government through legal means?

Witness 3: The defense is going too much into the other case and I am not prepared. That’s why I am saying I don’t know at this particular time

Magistrate: do you have any legal training?

Witness 3: It sounds like my name is being demeaned. I have some basics.

Magistrate: When issues are before court, it is not demeaning. I don’t want you to be subjected to certain questions which your training cannot cover. It is not meant to demean you. Your counsel is an advocate like him (defence) and he can rise to protect you if the question is unfair

Defence: (Repeats question)

State: I object to that. This question is unfair

Magistrate: I want to guide that that is an unfair question to the witness. He has said he only has basics. On that basis, I will disallow the question

Defence: I will rephrase and get what I want. You are aware that this witness (pointing at HH) has challenged the presidency in court?

Witness 3: I am aware and it was thrown out

Defence: When was the matter before Mwila Chitabo thrown out?

Witness 3: I can’t remember

Defence: I put it to you that it has never been thrown out

Witness 3: I am not aware

Defence: Challenging an election in court is not illegal and can never be treason not so?

Witness 3: Going to court can never be treason

Defence: You have no evidence that the accused has ever talked of overthrowing government using unlawful means?

Witness 3: I have evidence

Defence: Let’s hear it

Witness 3: I can’t give it here. Under [the case of] insulting language?

Defence: You are going to answer or I will apply that you go to prison

State: I object. That is evidence before another court

Defence through Mwiimbu: You may recall that yesterday a report was circulated and was used by counsel and that does not separate the issues. He can’t start selecting what he can comment on and what he can’t comment on. These cases are connected and that is why there is only one report. Further, there is no evidence before any court on these issues we are raising and these issues will determine the credibility of the investigations which this man carried out.

Defence through Mweemba: There’s no law which stops us from cross examining him on this point. His credibility must be challenged and any other court can use the record of this court. And the ruling this afternoon will be about this case.

Magistrate: That ruling will be given tomorrow morning… The witness can only comment on certain issues but he can’t aduce evidence in this case.

Defence : We will go by the courts guidance, kindly comment in a general manner what evidence you have.

Witness 3: In a general manner, I have said I have evidence and that’s why I charged the accused but I will not produce evidence

Defence: Even if you get upset you will answer

Witness 3: I can’t get upset Your Honor;, you are my friend

Magistrate : I can’t begin receiving evidence on treason. I have guided and if you don’t comply, I will transfer this case to another court.

Defence: Obliged. What was your dress code on the 11th?

Witness 3: I can’t remember, I have a lot of suits

Defence: You were in civil?

Witness 3: Yes.

Defence: So you don’t expect anyone to guess you’re a police officer right?

Witness 3: Yes I don’t expect that

Defence: Do you agree that if you overlook certain things in your investigation it amounts to dereliction of duty?

Witness 3: I don’t agree, it depends on the situation

State: Objection, that question is out of order. This is a witness of fact, not an expert witness.

Magistrate: Does he even know what dereliction of duty is?

Witness 3: I don’t know, I don’t know where he got that term

Defence: So you were answering without knowing what it means?

Witness 3: I don’t know it

Defence: Okay, we will move on to the next point. I’m curious, English is a language, Bemba is a language among others. What language is insulting?

Witness 3: It is English

Defence: What about insults, insulting words?

Witness 3: Yes, insulting language comes from the use of insulting words

Defence: This arises from what you were investigating from the 11th. According to you the route was clear not so? According to your report?

Witness 3: Your Honour, you are still coming back to the same question.

Defence: Was the route cleared? Do you know or you don’t know?

Witness 3: (Silence)

Defence: And as you answer, we have video evidence and statements from government.

Witness 3: I don’t know

Defence: You detained the accused at Lilayi, is it gazzetted?

Witness 3: It is gazzeted

Defence: By what notice?

Witness 3: I can’t tell unless I check my records but it is gazzeted

Defence: You have not produced this evidence in this court to exclude the danger of false implication or fabrication have you?

Witness 3: No Your Honour

Defence: I have no further question

HH at court today – Picture by Tenson Mkhala

Defence lawyer Gilbert Phiri takes over cross-examination, finds witness lying:

Defence: You remember yesterday testifying that on the 9th, you were assigned to investigate, who assigned you?

Witness 3: My officer in charge

Defence: Who is that?

Witness 3: Mr Shonga Arthur

Defence: Where is he based?

Witness 3: At service headquarters

Defence: You didn’t mention that you were at the accused residence on the 10th of April at 22:00 hours not so?

Witness 3: No

Defence: So you were not at his residence around 22:00 hours?

Witness 3: No your honour

Defence: Could I have the report we looked at yesterday?

State: That report was never tendered into evidence

Defence: That report was used and we would like to use it in cross-examination

Magistrate: There is no harm in looking at it

Defence: Could I have the report please?

(State avails the report and defence shows it to the witness)

Defence: You authored that not so?

Witness 3: Yes

Defence: Read paragraph 6 to the court loudly

Witness 3: (Hesitates)

Defence: Please read loudly to the court

Witness 3: (After hesitating) “On 10th April 2017, around 22 hours, I pursued Mr Hakainde Hichilema to his residence”

Defence: Speak up, it’s very important

Witness 3: “…to his residence at plot 10747 off leopards hill road during an operation which lasted for more than four hours. The following suspects were apprehended for various offenses…”

Defence: I’m satisfied but he can continue

Witness 3: “…the following suspects were apprehended for various offenses: Mr Hamusonde Hamaleka aged 41 years of plot number 1836 Chelstone extension”

Defence: Now you told the court you were not at the house but your own report suggests the opposite, which is the truth?

Witness 3: It is not opposite to what I said, I didn’t say… I used the word “pursued”. I didn’t say I went into the house

Defence: You are a liar

HH supporters outside the magistrate’s – Picture by Tension Mkhala

Magistrate: Now I will take action. You have deliberately told lies in court. Let me be fair to you, what do you mean?
Here we follow the law and nothing else. The legal counsels on both sides know their duties in court. They know that when a witness misleads the court, it is an offense. (Cites the law). A background has been set and I have been guiding. So I will allow you to say exactly what your response is and then I will make a response

State: Before you continue we take great exception to the defense calling our witness a liar

Defence: I can justify my claim but the court has guided

Magistrate: It’s not worth lying in court. And what I do in this court has to be legal. I am going to follow the due process of what happens when a witness wantonly misleads the court. If it is not your own report, I would have given it a benefit of doubt…then you want to argue with me? No! Repeat what you said.

Witness 3: It was in an operation. But it is me who pursued him and in an operation there are a lot of police officers involved so at the premises or at his house I was not there.

Magistrate: So this is the whole submission?

Witness 3: Yes your honor

Magistrate: Any more questions from the defense?

Defence: In your report you said you pursued him to his residence not so?

Witness 3: I didn’t say that. I didn’t go to his house

Defence: Where did the pursuit start from?

Witness 3: Immediately I was given the assignment

Defence: Was it a hot pursuit? Was he driving?

Witness 3: I didn’t even see him

Defence: So this report is not the correct version of your involvement at Mr Hichilemas house?

Witness 3: Which date? There are two dates there

Defence: On the 10th, the day the house was stormed

Witness 3: I was not at his house.

Defence: What do you want the court to believe? Your report or what you are saying?

Witness 3: I used the word I pursued; I didn’t say I went to his residence.

Defence: In paragraph 6, you stated that you apprehended four other individuals, where did you apprehend them?

Witness 3: During the operation

Defence: Where?

Witness 3: I am sure they were apprehended during the operation

Defence: But you are the arresting officer?

Witness 3: Yes

Defence: Are you the one who apprehended them?

Witness 3: No, I wasn’t there.

Magistrate: I need a copy of that report because of the decision I am about to make

(Witnesses 3 looking scared)

Defence: In your pursuit of Mr HH, were you with Mr Chime ?

Witness 3: What time?

Defence: You are not here to ask questions

Witness 3: I was not with him

Defence: What about Mr Hamweene ?

Witness 3: I was not with him

Defence: Okay who were you with?

Witness 3: I can only tell you the name of the in charge Mr Chirwa

Defence: What’s his rank?

Witness 3: Assistant Commissioner of Police

State: The state is uncomfortable that the court wants that report. It is not before this court as evidence. So we don’t know how the court wants it.

Magistrate: The court has the authority to get any document that is relevant to a decision which is to be made. A serious allegation has been made and to make an informed decision, I need it. There are very relevant authorities.

State: Obliged but during reexamination, we will wish to let him clarify.

Magistrate: Yes, that opportunity will come. I am a fair court and I will allow you to be heard

Defence: We have cause to suspect that the witness is carrying a firearm. Can we inspect him?

Magistrate: He has not shown cause that he will attack anybody. He cannot be searched.

Witness 3: In not comfortable because the defense counsel has continued accusing me. Let me be searched.

Magistrate: Let me guide you, when issues are given in court and a ruling is passed, then it moves on. I have already addressed this matter. If you are not comfortable why are you a witness?

Mwiimbu: I seek your indulgence that we stand down and then we proceed to your chambers

Magistrate: Let me put that on record

State: We concur with the defense that we proceed to chambers. That is our position as well.

Magistrate: We will go to chambers with the defense and prosecution counsel and the matter is stood down for 15 minutes. We were so eager to make progress in this case but these are issues which need to be addressed and these are issues which delay matters

(Court proceeds to chambers)

Witness apologises for lying

After 30 mins, magistrate returns to court

State: Before we continue, our witness would like to address the court.

Witness 3: In the first statement which I gave, I said I pursued Mr Hichilema to his residence at house number 10747, I was at the premises on the 10th of April past 22:00 hours though I didn’t enter. Then I pulled out and went back. And. Came back the following day on the 11th around 09:00 hours. As such your honor I seek for apology. It was not my intention Your Honor to mislead the court. You know Your Honor I have been standing for a long period of time, therefore I seek for apology Your Honour, I rest my apology.

State: That is the position as stated by our witness.

Defence lawyer Mwiimbu: Your Honor we have taken note that the witness has apologized for having misled the court pertaining to the happenings of 10th April and the apology is now part of the record and we accept it Your Honour.

Defence (Phiri): You were at HH’s house with a mission to apprehend him not so?

Witness 3: Yes

Defence: Who were you with?

Witness 3: Several others

Defence: Would you care to name them?

Witness 3: That’s why I had given the name of Mr Chirwa

Defence: You are aware that the house was stormed not so?

Witness 3: I am not aware

Defence: You have said you were at the residence not so?

Witness: Yes

Defence: But you want this court to believe you are not aware that police stormed the house?

Witness: Maybe you can rephrase the word stormed

Defence: Okay are you aware [that] hundreds of officers went into the house?

Witness: I’m not aware

Defence: You have said you were at the residence not so?

Witness: Yes

Defence: But you want this court to believe you are not aware that police stormed the house?

Witness: Maybe you can rephrase the word stormed

Defence: Okay are you aware [that] hundreds of officers went into the house?

Witness: I’m not aware

Defence: Your report says you were at the house for four hours

Witness 3: Myself Your Honour? No

Defence: I don’t want us to go where we are coming from. I will navigate it this way. Where were you?

Witness 3: Outside the gate

Defence: How long were you there?

Witness 3: Myself, I was there for a few minutes.

Defence: Specify

Witness 3: Myself I was there for about 30 or 45 mins

Defence: Why did you leave

Witness 3: I had other assignments

Defence: Where were those other assignments which were so important?

Witness 3: They were not supposed to be executed at the residence of Mr Hakainde Hichilema that’s why I left

Defence: Was it on the same night that you apprehended the other four accused?

Witness 3: Yes your honor

Defence: Outside the gate of Mr Hakainde Hichilema?

Witness 3: It is not me who apprehended them. Me I charged them.

Defence: And I’m sure Mr Chirwa also left?

Witness 3: I’m not sure because he was the head of the operation

Defence: Which operation?

Witness 3: The operation of arresting Mr Hichilema

Defence: You were with him?

Witness 3: For those few minutes only

Defence: Were there other people apart from police officers?

Witness 3: Yes

Defence: You know Garry Nkombo?

Witness 3: I know him

Defence: Hon Sylvia Masebo?

Witness 3: I know her

Defence: Did you see these two persons there?

Witness 3: No

Defence: Did you see tear smoke?

Witness 3: No, I never saw tear smoke

Defence: You never saw damage being done to the house of the accused person?

Witness 3: I never saw, it’s not to my knowledge

Defence: You said you came back in the morning right?

Witness 3: Yes

Defence: You said it was because you received intelligence information that a group of people wanted to cause confusion during the operation. Which operation?

Witness 3: The operation of arresting Mr HH

Defence: When you reached, you found that there was no disturbance not so?

Witness 3: There was no disturbance

Defence: And you didn’t find the group which was there to disturb?

Witness 3: No, there was no group

Defence: So it was calm

Witness 3: Correct your honor

Defence: Having found that calm situation, you decided not to leave the premises not so?

Witness 3: Your Honour, we left the premises

Defence: You arrived at 9hours right? You left at 9?

Witness 3: No, until around 11 when we arrested him

Defence: Why did you stay? You said you were not the one leading the night operation not so?

Witness 3: Yes

Defence: There was someone else leading the night operation not so?

Witness 3: The operation was by Mr Chirwa

Defence: So having found it calm, there was no reason for you to stay not so?

Witness 3: There was a reason

Defence: When you arrived in the morning, was the gate still standing?

Witness: It was still firm, it was standing.

Defence: You said you were there to apprehend him not so?

Witness 3: Yes, in the evening

Defence: Despite someone else leading the operation?

Witness 3: Yes, it is normal in our system

Defence: Have you had any interaction with him (pointing at HH)?

Witness 3: No

Defence: So there’s no reason why he should insult you not so?

Witness: (Silence)

Defence: No further questions

Defence lawyer Nathaniel Munambao takes over cross-examination

Defence: Confirm you were in Mongu until the end of the Kuomboka ceremony

Witness 3: Yes I was there

Defence: When did you leave?

Witness 3: In the night, I can’t tell the exact time.

Defence: What time did you arrive in Lusaka?

Witness 3: By 05 I was in Lusaka

Defence: What time did you report for work?

Witness 3: 07 hours

Defence: You said you were assigned a docket of the current cases. Who opened it?

Witness 3: It was opened at service headquarters

Defence: Who opened? Assign a name

Witness 3: I don’t know, I only know the one who assigned me. In fact it was an inquiry file

Defence: You want the record to change?

Witness 3: Those words are used interchangeably.

Defence: Who was the complainant?

Witness 3: The state

Defence: So you recorded a statement from the state?

Witness 3: From police officers

Magistrate: Are you giving me an impression that the complainant was you the police officers?

Witness: The state Your Honour

Defence: So have you recorded any witness statements?

Witness 3: From the time I took up the case, I have never recorded any statements from members of the public

Defence: Do you have reports recorded from independent people?

Witness 3: Yes, from some private media. I can’t remember.

Defence: Which media institution?

Witness 3: Prime TV Your Honour

Defence: Any other?

Witness 3: I take it that you are still going back to the other case…from ZNBC also

Defence: Who at ZNBC?

Witness 3: [I] can’t remember

Defence: On the 11th, how close were you with Mr Musamba Chime?

Witness 3: I was in the car and he was also in the car, we were five meters apart

Defence: When HH came out of the car you came out of the house you went into the yard?

Witness 3: Yes

Defence: And he was very close?

Witness 3: Yes, about 2 meters apart

Defence: So what he heard you heard? What insults did you hear?

Witness 3: You idiots, mother fuckers and assholes

Defence: If Mr Chime came and said he heard “take out these dogs” would he be saying the truth?

Witness 3: It’s almost the same

Magistrate: What’s the answer?

Witness 3: I heard your honor.

Defence: Why didn’t you tell the court at first?

Witness 3: I can’t say exactly what Mr Chime said but the insults are the same

(No further questions)

Defence lawyer Laston Mwanabo takes over cross-examination

Defence: What were you carrying ?

Witness 3: A note book only

Defence: So you didn’t carry a pen?

Witness 3: From the answer, I mentioned only a note book.

Defence: And in this court you have not produced any accurate record of the words which the accused is accused of saying?

Witness 3: The records which I recorded during the same operation? I haven’t produced your honor.

Defence: It is also correct from your evidence that in fact there was no request made to you for reinforcement by the officers who were there?

Witness 3: Your Honor it was upon receiving that intelligence information

Defence: I mean a request

Witness 3: No, they didn’t make a request

Defence: And from your evidence, there was no handover so that you could be the one to arrest?

Witness 3: No

Defence: You just imposed yourself?

Witness 3: I didn’t impose, I was the one investigating

Defence: So you usurped the powers of those who were there?

Witness 3: An operation is very big. Everyone who was there had a role to play

Defence: When you started off after the so called intelligence information, you went there to assess not so? To confirm the information

Witness 3: Yes

Defence: Therefore, when you left, your mission personally was not to arrest not so?

Witness 3: Even intelligence info was part of the operation. It was a continued operation

Defence: Answer. For your information, you are not the first witness, we want to compare what you say and what others have said

Witness: Yes Your Honour

(Defense rests)

State conducts re-examination

State: What was the purpose of you remaining at the premises after finding the situation was calm?

Witness 3: The purpose was to arrest Mr Hakainde Hichilema

State: They also asked whether you investigated or not, what is your explanation?

Witnesses 3: I said I investigated by interviewing the accused person

State: You were asked if you recorded statements from other members of the public, you only recorded from TV, explain.

Defence: Objects as the issues were not raised during cross-examination

End of re-examination

Court summons fourth witness

Witness 4: (Police officer Aubrey Hamweene, 40, Inspector) On 11th April 2017, I reported on duty. Whilst on duty at about 09:30 hours, Mr Mbita my supervisor received intelligence information that at plot number 10747 off leopards Hill

(Court advises him to speak for himself)

Witness 4: I accompanied Mr Mbita to plot number 10747 off leopards hill in the company of detective chief inspector the name is gone, I will try to remember, but I accompanied Mr Musamba Chime. We were four. We proceeded to the said plot number where it was alleged that there were people who wanted to cause some trouble. At the said place, there were other officers who had gone for duties. When we got there, we entered into the yard and we found some other officers from other combatants who were already there. We also found some family members and some lawyers who were already there.
When we arrived, we waited for some time so that we could talk to the family members.
In the process I saw Mr Hakainde And his family members coming out of he house towards us.
When he reached where we were, he asked who was the commander. Before anyone could respond, the following words were uttered as he charged at us ” you dogs, get out of my yard, mother fucker, asshole, idiot”

When I heard these words, I was injured such that I wanted to charge at Mr Hichilema with the purpose of beating him

(Laughter in court)

State: So what did you do?

Witness 4: I restrained myself and later on, Mr Hichilema was persuaded by his lawyers to accompany us to Woodlands police station.

State: what other role did you play?

Witness 4: The only role I played was escorting Mr Hichilema and others to the police station

State: Who else did you recognize?

Witness 4: Keith Mweemba, Muleza, Mushipe

(Witness identifies HH)

Court then calls for a 20 min break and reminded the state to find the police officer in charge of security at court.

After break, the State identifies Assistant Police Commissioner Bothwell Namuswa as being in charge of court security and bring him before court.

Magistrate: There have been concerns that members of the bench, in particular counsel from both defense and prosecution have not been able to access the court room owing to the strict instructions given to the officers. It has also been reported that some witnesses have not been able to access the premises. Owing to this, I direct that you tell your officers to relax their screening process. Their conduct has not only affected proceedings in this matter but other matters as well. The spiral effect is congestion at Kamwala Remand Prison. Is it clear?

Namuswa: It is clear. We will implement as directed

(Cross-examination against Witness 4 begins)

Defence lawyer: Marshall Muchende leads

Defence: Witness can you stand up. You didn’t seek the courts permission to sit. This is not a police camp. Confirm telling the court that what you heard was “you dogs, get out of my yard”.

Witness 4: Asks him to repeat.

Defence (Repeated the question)

Witness 4: Yes Your Honour

Defence: And where was this event taking place?

Witness 4: At Mr Hakainde Hichilemas residence

Defence: Is this property secured in a fence?

Witness 4: Yes

Defence: You told the court that you and your colleagues entered isn’t it?

Witness 4: Yes

Defence: Can you describe the distance from the gate to the house?

Witness 4: I’m not an expert, I can’t describe. I don’t know

Defence: Can you confirm that you went to almost the door of his house?

Witness 4: Yes, we were at his house Your Honour

Defence: I want to confirm that you were almost at the door

Witness 4: No your honor

Defence: But you were close to the main house? You were working right?

Witness 4: Yes

Defence: This property that you entered, did you have a warrant?

Witness 4: I didn’t have a warrant your honor

Defence: Did it appear to you that the premises you entered were a public or private place?

Witness 4: Private, it’s a residential place.

Defence: Look at the last part of the indictment . Read the last words

Witness 4: (Reads indictment) “likely to cause the breach of public peace”

Defence: I have no further use of this witness

Defence lawyer Keith Mweemba takes over cross-examination

Defence: Witness good afternoon

Witness 4: Good afternoon

Defence: If a witness came to this court came and said on that material day you didn’t enter but you were outside the gate that person would be lying right?

Witness 4: I don’t know

Defence: I have given you a scenario

Witness 4: I don’t know

Defence: You are literate aren’t you?

Witness 4: I am

(Defence shows witness 4 the indictment)

Defence: Confirm to the court that the charge sheet does not contain any words in quotation marks

Witness 4: They are not there

Defence: Confirm the words are written in direct speech

Witness 4: I don’t know

Defence: Confirm those words you said “get out of my yard” do not appear

Witness 4: I don’t know

Defence: Read

Witness 4: They are not here Your Honour

Defence: The words get out of my yard and remove these dogs are not the same are they?

Witness 4: Not the same Your Honor

Defence: And out of all the witnesses, you are the only one who said one of the lawyers was Mr Keith Mweemba. That’s not a fact is it?

Witness 4: I am on oath it’s a fact

Defence: Have you produced evidence

Witness 4: No

Defence: Who was in charge?

Witness 4: Mr Musamba Chime

Defence: Mr Musamba Chime stood there and said he wasn’t in charge, who is lying?

Witness 4: I can’t speak for him. I maintain he was in charge

Defence: How many vehicles were you using?

Witness: One vehicle

Defence: Another inconsistency but we will leave it for submissions. So when circumstances allow you to beat up people? Are you allowed by the law?

Witness 4: No Your Honour

Defence: You have no evidence apart from your oral submission that the accused uttered the words alleged in the indictment?

Witness 4: I don’t have Your Honour

Defence: And in this court, you have no documentary evidence to exclude the danger of false implication?

Witness 4: Yes with an explanation your honor

Defence: Have you produced evidence

Witness: No Your Honour

Defence: It’s because it doesn’t exist does it?

Witness 4: I don’t know if it exists or it doesn’t.

Defence: But you agree with me you haven’t told this court your duties have you

Witness 4: No I haven’t

Defence: And you haven’t said anything about lodging a complaint am I right?

Witness 4: Yes

Defence: And you haven’t said anything about writing a report have you?

Witness 4: No, with an explanation

Defence: I’m not interested in the explanation. You also agree that you did not mention among the lawyers, Martha Mushipe

Witness 4: I did Your Honour

Defence: You didn’t mention Jack Mwiimbu did you?

Witness 4: No I didn’t

Defence: We are very grateful. I have no further questions for this witness

State: (through state advocate Sakala) we have nothing in re-examination and this marks the close of the prosecution case.

Defence through Jack Mwiimbu: As defense we are ready to make submissions now.

Magistrate: Prosecution do you wish to make submissions?

State: We intend to make written submissions

Magistrate: I note that both counsel have said they need to make submissions. Though at different times. The defense are ready to make Viva Voce submissions but the defence says they want to make written submissions so that will be at a later date. I know you have a right to submit however, taking into account that the court is not bound by these submissions, I will proceed to decide at this stage. This principle was established in the case of Ng’uni …(quotes citation) I will adjourn for 10 minutes for a ruling [on case to answer]

(HH’s sympathisers start clapping in court but defense lawyers begs them to stop)

Comment on article

Be the first to comment

Notify me of
avatar
4000
wpDiscuz

Send this to a friend