Is The State Breaking The Law On Mundubile & Makebi Zulu? Former Prosecutor Frank Gwaba Questions Detention Procedure
Former prosecutor Frank Gwaba has questioned the legality surrounding the continued detention of Brian Mundubile, his running mate Makebi Zulu and 16 others at Mukobeko Maximum Correctional Facility.
Gwaba, who in the early years of his legal practice prosecuted for one of the country’s law enforcement agencies, says no accused person can be admitted into remand prison without first appearing in court.
“In the early years of my legal studies and practice, I was privileged to prosecute for one of our law enforcement agencies. As a prosecutor, I was exposed to valuable lessons about prosecution and treatment of accused persons. Among the lessons learnt was that an accused person could never be ushered into remand prison as a remandee without first appearing in court to take plea or having their charges explained where the offence can only be tried by the High Court,” Gwaba stated.
He explained that once an accused is charged and presented in court, the State is precluded from continuing to investigate them. For non-bailable offences, the prosecution is required to prepare detention warrants signed by the presiding magistrate, which form the legal authority for remanding the accused and presenting them back in court after a fortnight for mention.
“Without a detention warrant, the jailor would refuse to admit them. Their refusal was on account that should anything happen to the accused, or in the event of any inquiry by the Human Rights Commission or death of a suspect, the jailor would have authority to justify that detention,” he said.
Gwaba drew parallels with the treason case involving President Hakainde Hichilema while in opposition, noting that President Hichilema and his co-accused were presented before the Lusaka Magistrates Court for mention and explanation of the treason charge soon after their arrest.
“They were never asked to take plea because the offence they were charged with was never tried by the Subordinate Courts but rather the High Court. So all the Subordinate Courts could do was admit them for fortnightly mentions,” he explained.
He added that the purpose of a mention is to enable the court to hear the accused person’s grievances and ascertain their state of health.
Gwaba said he is unsure if the law relating to treatment of suspects has changed since he practiced in the mid-2000s, over 20 years ago.
“With the aforesaid background, I wish someone could explain to me why these colleagues charged with treason and seditious practices have never seen the inside of a courtroom for about a month or more since their arrests? Since they have never been to court, how, when and who signed their detention warrants? In what capacity is Mukobeko Maximum Prison keeping these suspects if they have never had the liberty to have their offences explained?” Gwaba queried.
Mundubile, Makebi Zulu and 16 others have filed a constitutional petition in the Lusaka High Court challenging their detention as unlawful and unconstitutional.