Does Brebner Changala have to die for the court to believe that he is unwell? How Magistrate Davies Chibwili is giving Zambia’s judiciary a bad name
…the magistrate is acting like a hired gun in a hurry to convict and send Changala to prison
By Sishuwa Sishuwa
The conduct of Lusaka Chief Resident Magistrate Davies Chibwili in the case involving the State versus prominent civil rights activist Brebner Changala is giving the judiciary a bad name. Within the last one week, Chibwili has made several strange decisions that undermine judicial integrity and make him appear like a hired gun who is in a hurry to convict and send Changala to prison for the ‘crime’ of claiming and exercising his constitutionally protected human rights. Six of these strange decisions stand out.
The first is magistrate Chibwili’s decision to issue a court order on 20 March 2026 but backdate it to 24 February, which indicates an attempt to cheat or that the Magistrate had intentionally concealed the ruling for almost a month, which adversely affected Changala’s right to challenge it in a superior court. The second is Chibwili’s decision to unilaterally set up trial dates without consulting Changala or his legal team, an action that makes the magistrate appear like a hostile prosecutor. The third is Chibwili’s decision to squeeze the trial period into three days this week – Wednesday, Thursday, and Friday – which deprives the accused of sufficient time to organise witnesses and prepare his defence. If justice delayed is justice denied, justice rushed is an injustice.
The fourth is Chibwili’s refusal to recuse himself from deciding a case in which the has become an adversary to the accused after Changala sued him in a superior court over his decision-making in the same matter. The fifth decision is Chibwili’s insistence that he would proceed to hear the case that is simultaneously before the High Court. A matter cannot be heard in two separate courts at the same time. As a rule, and a matter of decorum and respect for the hierarchy of the court system, most magistrates stay proceedings before them pending the determination of the same matter in instances where such matters are also subject of proceedings before the superior courts.
The sixth one is Chibwili’s impatience to hear the matter, expressed by the magistrate’s decision to summon to his court the qualified and competent medical doctor who examined, diagnosed, and certified Changala as too sick to stand trial. To better understand these points and Chibwili’s centrality in them, it is important to locate them within a historical context that traces the sequence of events in the Changala case.
Changala was arrested on 27 May 2024 over comments he made in response to the abduction of then Petauke independent member of parliament Emmanuel Jay Banda, whose car was found abandoned in Lusaka’s Ibex area. In an interview with Diamond TV journalist Darius Choonya on 25 May, Changala accused the State of possible involvement in the disappearance of the lawmaker – a claim that proved hard to dismiss two days later when Banda, after he was discovered, badly beaten, 43 km south of the capital, revealed that he had been abducted and left for dead by several assailants who included two of President Hakainde Hichilema’s aides, spokesperson Clayson Hamasaka and political advisor Levy Ngoma. To avoid misrepresenting what Changala said, it is worth quoting his interview remarks at length.
“I have picked up some information that Jay Jay made the last phone call around 1am. When he was coming, he noticed that people were following him. So, from this road, he made a turn into Bauleni where he made a U-turn. And according to the information, when he wa joining this road once again, it (the car) was stopped, and it stayed there until 4am. This information is from the tracking divide because this vehicle is installed with tracing device. It is very clear that this kind of behavior can only be done by state sponsored criminals. And this is a direct accusation.”
Changala continued: “In recent days, we have seen that this government has become intolerant, where it has moved the state and the state machinery to assault the very citizens they are supposed to protect, the very citizen that gave them the mandate to govern and govern within the boundaries of the law. I am seeing an emerging trend of state sponsored anarchy, if not state sponsored terrorism. Let us monitor the situation as hours start building. As I tell you, Jay Jay has been missing from 1am, according to a tracking system. And this is 10:30, which means almost ten hours ago. And there is no information as to whether he is alive or in custody elsewhere. I call upon the police who are there to maintain law and order, not to be the law onto themselves, to up their game. Look for this individual and bring him back to the family and the people that he represents. We are not going to sit idly.”
The above are the comments that landed Changala in trouble. After the video clip of the interview with Diamond TV went viral on social media, a ruling party supporter, Bill Kapinga, went to Kabwata police station to report the civil rights activist, saying his remarks constituted an attempt to incite public disaffection against the government. Kapinga found a police officer named Malumbe Moono whom he caused to watch the clip on a Facebook page. Moono then proceeded to summon Changala before arresting and charging him with sedition for what he termed as remarks that “could bring hatred or incite disaffection against the government as by law established.”
The police then refused to grant Changala bail or take him to court. He was kept in detention for over a week in a 16 square meter cell with 34 other people, forced to sleep in the space reserved for the toilet, and subjected to other degrading treatment. Changala was only released on 4 June 2024 when, following his application for habeas corpus, Lusaka High Court judge Geoffrey Mulenga granted him bail in his own recognizance and ordered the state to release him.
Changala’s case in the Magistrate’s Court was subsequently allocated to Chibwili, who found him with a case to answer in September 2024. Changala then sued the state in the High Court, arguing that the law of sedition is unconstitutional, archaic, undermines free speech and should have no place in a constitutional democracy. He also asked the High Court to stay the criminal proceedings against him in the lower court, pending the determination of his petition. When the High Court refused to do so, he renewed his application for a stay before the Court of Appeal where Catherine Makungu granted it in November 2024.
“Upon hearing Counsel for the petitioner and Counsel for the respondent and in the interest of safeguarding both parties, it is hereby ordered and directed that the criminal proceedings in the Subordinate Court wherein the petitioner stands charged with the offence of Sedition and is appearing before Honourable Mr. Chibwili be and are hereby forthwith stayed and/or arrested pending determination of the Attorney General’s application to raise preliminary issues,” read Mukungu’s ruling in part.
Changala then spent much of the year 2025 appearing in the High Court over the substantive matter in which he is challenging the constitutionality of the law on sedition. Owing to Zambia’s clogged court system, the case has taken long to be decided. By January this year, hearing in the matter was continuing. This delay has unsettled the State especially since Changala has continued to be an outspoken critic of the governance excesses of the Hichilema administration. Since the start of this year, several ruling party functionaries have made public statements that show a high drive to remove Changala from circulation before the forthcoming general election.
In the context of this wider and highly charged political climate, justice Makungu discharged in February this year the stay that she had earlier granted to Changala on the ground that he should have appealed to the Supreme Court, as the Court of Appeal has no jurisdiction to hear cases relating to the Bill of Rights. Then, a day or two later, on 24 February, Magistrate Chibwili resurrected the case and moved to set up dates for mention and commencement of trial – 23 to 26 March.
In response, Changala’s lawyers proposed that the trial dates be set for May because of several commitments in the High Court in March and April including a constitutional challenge relating to the same case and an elective conference. Magistrate Chibwili rejected the proposal and ordered Changala to open his defense on 23 March. After the accused indicated that he would challenge the order once he receives its formal version, the magistrate sat on the written ruling until last week Friday, 20 March, when he finally availed it to Changala in the late afternoon.
Although he issued the order only hours before the weekend preceding the commencement of trial, Chibwili backdated it to 24 February. This action indicates that the magistrate either had a written ruling the same day he made the verbal order or only wrote it on 20 March but backdated it to almost a month earlier. Whatever the case, the objective appears to have been the same: to leave no ample time for Changala to adequately prepare for his defence or give fresh instructions to his lawyers such as challenging the ruling in the High Court before the commencement of trial.
On Sunday, 22 March, a day before trial was due to start, Changala, unhappy with the conduct of the magistrate, filed an urgent application in the High Court, seeking leave to commence judicial review against the legality and reasonableness of Chibwili’s decision to carry on with the criminal proceedings when the law that creates the offense of sedition is subject of a constitutional challenge in a superior court. He argued that unless the trial in the lower case was suspended, his main case in the High Court risks being rendered an academic exercise should the magistrate convict him on a law that may later be declared unconstitutional.
The following day, on 23 March, the High Court set the next Monday, 30 May, as the date for interparty hearing between Changala and Chibwili. Instead of having the matter reallocated to another magistrate after court documents were served on him, which meant that he was now a party to the proceedings, Chibwili sat on Tuesday, 24 March and made two rulings. The Chief Resident Magistrate refused to recuse himself from the case and decided that he will proceed to hear and determine it even if Changala has sued him in the High Court. In so doing, Chibwili overlooked the hierarchical structure of the court or judicial system in Zambia as enshrined in the Constitution and further ignored a basic principle of natural justice that one cannot be a judge in their own cause.
Then, without consulting the accused’s lawyers, Chibwili proceeded to set up 25, 26, and 27 March as the trial dates, promising to render judgement soon afterwards. In doing so, the magistrate made it appear like he was eager to hear and determine the matter within the few days that are remaining before the case in which Changala has sued him comes up in the High Court on 30 March. Chibwili also effectively assumed the role of a prosecutor and overlooked the judicial principle that speedy trials may lead to injustice. This is because a rushed trial may undermine an accused person’s fundamental rights such as the right to be afforded a fair hearing within a reasonable time by an independent and impartial court established by law and to be given adequate time and facilities for the preparation of one’s defence.
Perhaps shocked by all these developments in a single day, Changala fell ill while he was in Chibwili’s court on Tuesday and his condition got worse afterwards. He was then rushed to a nearest government hospital where a competent and qualified medical doctor diagnosed him with a medical condition and gave him seven days of sick leave. On Wednesday, when his trial was due to commence, Changala lay in bed sick. His nephew, Ephraim Mwiza, appeared before Magistrate Chibwili, whom he informed of Changala’s illness.
Mwiza presented the sick note to the court as the accompanying proof. Instead of accepting the medical record, Chibwili ordered the doctor who issued the sick note to appear before him on Thursday, at 09:00. Again, this conduct on the part of magistrate Chibwili is totally unnecessary and suggest hostility towards the accused. Does Changala have to die for Chibwili to believe that the civil rights activist is unwell?
Zambians have not forgotten how late opposition Forum for Democracy Development leader Edith Nawakwi was treated when she was appearing before the Lusaka Magistrate’s Court on sedition charge. After she informed the court that she was sick and presented medical notes as supporting evidence, the State started summoning doctors who had issued them and even applied to have her tried while she was lying in bed, ill. It was not until she died that those who doubted her illness believed that she was genuinely sick. Why is Chibwili behaving the same way? Why does he appear to be so desperate to try Changala to a point where he is now starting to harass medical professionals? And why is Chibwili clinging onto this specific case as though he is the only magistrate in Lusaka?
The unpleasant conduct of Chibwili reminds me of David Simusamba, a magistrate under the previous administration whose own deplorable conduct later cost him his job on the bench. Unless his promotion to superior courts is dependent on convicting and jailing Changala before Zambia’s August election, I appeal to Chibwili to recuse himself from this case. He has become too involved in the matter to decide it impartially.
Source: https://x.com/ssishuwa/status/2036883567436062913?s=20
This man ought to sit in Dr Mwelwa’s class and learn one or two things on how to write a concise article