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Court acquits HH on insulting chargeBy Mukosha Funga on 15 May 2017
Lusaka magistrate Greenwell Malumani has acquitted UPND leader Hakainde Hichilema in the case of ‘use of insulting language’, saying the prosecution has failed to prove his guilt.
In his judgement today, he noted that it was clear that the arresting officer Mbita Mpazi did not conduct any investigations in any of the cases including treason, but watched television and based on his impressions, charged the accused with treason and other offenses.
In summarizing the testimonies of four state witnesses, Magistrate Malumani noted serious contradictions in the first witness’ testimony and said he also took note of his demeanor.
“The accused can only be convicted if he used offensive language to the complaint at a public place or if the offending words would lead the complainant to commit an offense,” he said.
Magistrate Malumani said the second witness told the court that the complainant was the arresting officer but later changed his position that the complainant was in fact the state.
“From what it appears, to him, everything in the docket is before the court. I note that he lacks basic knowledge of production of documents in court despite his 22 years of service.”
He also noted contradictions in his evidence.
On the third witness, who was the arresting officer; Mbita Mpazi, magistrate Malumani said he was shocked by Mpazi’s inconsistency.
“I was shocked with the extent of this witness’ inconsistencies. He exhibited great ignorance about how a matter must be brought to court according to the Criminal Procedure Code,” he said.
Magistrate Malumani also said he noted his demeanor and noted that he exhibited arrogance and lack of knowledge of court etiquette.
He said Mpazi gave him an impression that he was not telling the truth and his conduct was regrettable.
“I must state that the conduct of this witness was regrettable. It was clear that he intended to tell lies to the court on oath,” magistrate Malumani said.
He noted that it appeared like Mpazi was bent on destroying the prosecution’s case.
“I was convinced that he was liable for contempt and that he could be cited for perjury. However, I exercised my discretion to pardon him after an apology was rendered. While that doesn’t destroy his credibility per se, it is my observation that he is not an honest witness. It would appear that he was bent on destroying the prosecutions case both by conduct and by his evidence,” he said.
“He said some other witnesses were Prime TV and ZNBC…It implied that he was watching television and based on the impressions he got, he went to the accused [person’s] house and apprehended him without recording any statements from any witness.”
On the fourth and last witness, Magistrate Malumani noted that he also drew an impression that he was concealing the truth.
“I was promoted to record his demeanor because he made me draw an impression that he was concealing the truth,” he said.
“His testimony augmented the defense’ argument that there was no complaint made on the incident. I find the following facts not in dispute. Many officers visited the accused house in the night on April 10 and they were there on when he was apprehended on April 11. There was no independent witness. All there is is oral evidence of what the witnesses said.No witness from Kabwata police was called and no evidence was read to the court to prove the allegations. It’s not in dispute that Mpazi Mbita was the arresting officer for all the cases facing the accused includes treason…it is not in dispute that he went back to Western Province to investigate these offenses and he never recorded any evidence from there all he did was watch television and he charged the accused. He claims he investigated but his claim has no veracity…”
Magistrate Malumani expressed worry at the conduct of the Zambia police.
“This paints a very gloomy picture of lack of professionalism on the part of Zambia Police,” Malumani said.
He said no one could blame the prosecution for failing to recover their case after the witnesses testified.
“I must state that if the prosecution was serious, they could have at least laid evidence from Kabwata Police station where it was alleged that the case was reported. The occurrence book at least could have been produced in court. The puzzle I have is why? It is like a magistrate lodging a complaint at the police station and when the matter is brought, he accepts to seat as magistrate to try the case,” he said.
“The witnesses are not only police officers but they are people who are not credit worthy. The arresting officer has shown himself not to be reliable. He is also a complainant so how then can he be without bias and interest to serve? If a witness can tell lies and apologize on oath, how can the court place relevance on his evidence? The prosecution has failed to convince me that there was no bias and malice. The danger of false implication cannot be ruled out.”
He said the police had taken up the duty of the prosecution to secure a conviction.
“It is not the duty of police to secure a conviction, there’s is to bring the evidence. The witnesses showed that theirs was to secure a conviction which is most unfortunate. ‘There are some sadists within our communities who want to see others suffer. As a professional body, the police are encouraged to be objective and only bring cases to court that have merit. With alert team of State advocates, I hope that the police can be guided and that way, the number of cases before court will be reduced and that way, only deserving cases will be prosecuted and overcrowding in prisons will be curtailed’. This was an order by justice Lomba and very little more can be said about what justice Lomba stated about police conduct,” magistrate Malumani said.
“I have found that no investigations were carried out in this matter. PW3 (Prosecution Witness number 3) took it upon himself to be the arresting officer, police station and complainant and he makes a very gloomy picture of Zambia Police in so far as abuse of power is concerned. Courts cannot bare the blame by the police to conduct fair and complete investigations.”
Magistrate Malumani then acquit HH on the use of insulting language charge.
“The court cannot bear the blame for the failure of law enforcement agencies to conduct fair and credible investigations. And they should bring before the courts all relevant information whether favorable or in support of the suspect. This is what a fair, credible investigation is…In the light of the foregoing, I come to the inescapable conclusion that owing to glaring contradiction, inconsistencies, lack of credibility, malice and possible collusion by prosecution witnesses in this matter, there is a serious doubt on the prosecution case. Investigations were short, if they can be called investigations at all, this is a case where the arresting officer Mr Mpazi Mbita was literally short of stating that he has no single grain of evidence against the accused person on all the charges; treason, disobedience of lawful orders and use of insulting language. Police action unequivocally lacked professionalism in administration of justice. Our laws are not only clear but predictable. You can tell well in advance what decision the court will make right at investigation stage. Prosecution should have therefore seen this and go further and state that Article 2 (a) of the Republican Constitution pauses no ambiguity, any person who is charged with a criminal offense shall be presumed innocent until proven guilty before a court of law. So, the duty of the state to prove the guilt of the accused from the beginning to the end,” said magistrate Malumani.
“Prosecution failed to prove the guilt of the accused beyond all reasonable doubt. I acquit him forthwith and set him at liberty.”
As soon as he made the pronouncement, there was jubilation inside and outside the courtroom as HH’s sympathisers could no longer contain their excitement.
About Mukosha Funga
Interested in good governance and youth empowerment.
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