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DAY 3 -20.04.2017

MAGISTRATE:
Greenwell Malumani

PROSECUTION TEAM ·
Mulete, ·
Banda, ·
Langama, ·
Ernie mwanza
Gamaliel Zimba – Principal State Advocate – NPA

Below are Counsels who joined the prosecution team

1. Catherine Lombe Phiri – Deputy Chief State Advocate – Taxation And Financial Crimes
2. Mariam Bah Matandala – Deputy Chief State Advocate – Lusaka Province

DEFENCE TEAM: ·
Vincent Malambo SC –Malambo and associates ·
Mulambo Haimbe – Malambo and Associates ·
Nellie Muti – Lukona Chambers · Chad Muleza – Muleza,Mwiimbu and Associates ·
Jack Mwiimbu – Muleza,Mwiimbu and Associates ·
Dr Henry Mbushi-HBM Advocates, · Martha mushipe – Mushipe and Associates ·
Lastone Mwanaabo – LML Advocates · Keith Mweemba – Keith Mweemba Advocates. •
Nathaniel Inambao – ICN Advocates • Paul Chiika – Milner and Company Advocates •
Milner Katolo – Milner and Company Advocates •
Kashumba Mutti – Lukona Chambers • Xavianji Sinkala – Muleza,Mwiimbu and Associates •
Nchimunya Mwange –Muleza,Mwiimbu and Associates.

ACCUSSED PERSONS
1. Hakainde Hichilema
2. Hamusonde Hamaleka
3. Haciinda Muleya
4. Lastone Mulilanduba
5. Pistorious Halooba
6. Wallace Chakaawa

CHARGES

1. Treason charge indicate that between October,10th 2016 and April 8th 2017,A1 whilst working with his co-accused and other unknown persons did prepare and endeavored to overthrow the democratically elected government of President Edgar Chagwa Lungu in Lusaka

2. In count 2, A1 and his co-accused and other unknown persons did on 8th April in Limulunga district of the Western Province disobey lawful orders issued by a police identified as Inspector Ndalama to allow for the passage of a Presidential Motorcade thus endangering the life of the Republican President.

3. In count three, A1 is on 11th April 2017 said to have used insulting language such as Asshole, Mother fucker and idiot to police officers who were on duty.
Take note that count three relates to A1 only.

SUBMISSIONS The court which was scheduled to sit at 09:00hrs only resumed at 09:30hrs with magistrate Malumani having to leave the courtroom owing to the late arrival of Principal State Advocate Gamaliel Zimba.
At resumption of the court sitting, defence lawyer Vincent Malambo state counsel requested to address the court on a matter of serious concern as it borders on the welfare and safety of counsels especially those from the defence bench.
Magistrate Malumani permitted the defence to address the court.
Defence counsel Vincent Malambo informed the court that the defence bench feels that the court environment is not conducive and safe for them to freely operate and ably represent their clients.
He said the court premise is littered with heavily armed police officers that were sending fear in both the public and advocates.
He further questioned the presence of police officers in the courtroom which is unprecedented.
The defence lawyer wondered what has changed in the last three days to warrant the increase in security personnel who have even encroached in the courtroom.
The state counsel further wondered why police officers should even encroach in the bar area which is a preserve of advocates.
At this point, Magistrate Malumani ordered the uniformed police officers to move to the public gallery awaiting further instructions.
Defence Counsel Malambo continued with his submission saying he was also scared of the safety of one of the defence advocates, Keith Mweemba whose private residence has been under constant surveillance from some unknown persons leading to him evacuating his family to safety.

COUNSEL MWEEMBA:

Keith Mweemba rose to augment counsel Malambo’s submission saying the last three days have been a challenge on his life as a counsel for the defence as well as his family following the constant trailing and surveillance by unknown vehicles and people who he suspects could be state agents.
He said he has had an opportunity to identify one of the vehicles used which has had the audacity to make noise at his gate leading to him moving his family to safety.
He has since decided to report the matter to relevant authorities which include the Law Association of Zambia among other avenues.
He said he is being forced to reconsider his position as a counsel for the defence. At this point, the court asked the state to respond to issues raised by the defence. State Principal Advocate Gamaliel Zimba said while he sympathises with counsel Mweemba’s situation, the state is in the dark. He said just as Mr Mweemba does not know the people and vehicles trailing him, neither does the state know and it is not right to speculate that the unknown individuals could be from state institutions.
He speculated that those people might even be counsel Mweemba’s clients, a suggestion that led to a sharp reaction from state counsel Malambo who accused the state of speculating.

Without waiting for the senior counsel to sit down, Mr.Zimba rebutted saying the defence is also speculating in its submission.

This action by Mr Zimba drew the wrath of the court who told him to act professionally as it is wrong to respond or stand when there is an objection.

Magistrate Malumani said there is need for the officers of the court to show exemplary behavior in both the courtroom and outside. The state advocate apologised to the court for his action.

On the presence of police officers in the courtroom Mr.Zimba qualified it by saying it had become necessary to increase police presence whom he referred as court orderlies in order to maintain order and the safety of the courtroom.

But Mr Malambo objected saying the state should have sought the guidance of the court if additional security was needed instead of leaving the court second-guessing.

Deputy Chief State Advocate Catherine Lombe Phiri said there was no need to triavialise the issue of counsel Mweemba’s safety and said the state should take necessary measures to ensure that the safety of counsels on both sides is guaranteed.

She however said that matter would have been brought to the court separately or in the chambers as there would other unrelated issues to his being on the defence bench.

She further revealed that the working environment in the courtroom was not conducive citing an incident where one of the state prosecutors was verbally abused by members of the public enroute to the countroom,
thus justifying the presence of the police.

At this point, the court requested for a thirty minutes stand down in order for him to confer with three advocates from both the defence and prosecution in the chambers on matters that have been raised by the defence.

The defence was represented by Vincent Malambo, Nellie Mutti and Chad Muleza while the state was represented by Mr Zimba and the two deputy chief state advocates

RULING :
Upon resumption of the court sitting after a more than one hour adjournment, Magistrate Malumani said it took the court more than the requested time due to the complexity of the submissions which needed thorough understand before coming up with the decision.
He said both parties have agreed that the issue on the safety of counsel Mweemba will be handled by state investigative wings.
He further directed the police officer commanding for Lusaka to ensure that police officers do not unnecessarily intimidate and place undue pressure on the advocates as they get to court for their work.
He also directed that members of the public coming for other court hearings in courtrooms should be accorded the deserved courtesy and protection.

RESPONSE
Following the court’s ruling, Principal State Advocate Gamaliel Zimba rose to respond on yesterday’s application by the defence on which it asked the court to quash the treason charge and discharge the accused owing to lack of Overt Acts. In his response, Mr Zimba asked the court to place on record the ruling of the High Court delivered by Judge Gertrude Chawatama on the habeas corpus application by the defence.
According to the Chawatama ruling, its only the trial judge (High Court) that will determine the validity of the treason charge and the Overt Acts. Advocate Mariam Bah Matandala then rose to respond on the defence application on the mysterious ‘pastor’ that visited A1’s holding cell at Lilayi training college as well as the alleged torture of A2,A5, A6.In her response, the advocate cited the High Court response in the 1981 case of Attorney General versus Edward Shamwana in which the court guided that a subordinate court’s role is to hear and record the complaint and not to take action on it.
She advised the court to be guided by the High Court guidance. But Mr Malambo rose with an objection saying the response by the deputy chief advocate is very strange accusing her of misreading the guidance which does not bring into question the jurisdiction of the subordinate court.
He wondered why the state was trying to restrict the jurisdiction of the court meaning that the court cannot take action on a matter of inhumane treatment of the accused before it.

RULING
Magistrate Malumani has since set Wednesday April 26th 2017 at 09:00hrs for a ruling on all applications from both the defence and prosecution as most of them are complex and need a bit of time to consider.
He adjourned court sitting until April 26th with the accused remaining in custody.

APPLICATIONS FOR RULING ON WEDNESDAY
The court will make a ruling on the application to quash the treason charge and discharge the accused for lack of Overt Acts on the treason count.
The ruling on the prosecution’s response to the application of alleged torture of A2, A5, A6 and the mysterious midnight visitation in the holding cell for A1.

UPND MEDIA TEAM

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