Peter Sinkamba

JUSTICE MINISTER HAIMBE IS WRONG ON MUMBI PHIRI’S ISSUE

Minister of Justice is reported to have said that the incarceration of PF Deputy Secretary General Mumbi Phiri is within the law. We beg to differ with the honorable Minister on this point.

Zambia is a Constitutional democracy Republic. The sovereignty authority of the Republic has been assigned to various public and Constitutional officers. With respect to determination of whether an act is lawful or not has been constitutionally delegated to courts of law. A minister has no authority to determine so. An honorable Haimbe being a State Counsel, he is better place to know this than I do. Put simply, he has no constitutional authority to determine whether the prolonged detention of Mrs Phiri is lawful or not. So, the issue of whether Mrs Phiri is lawfully detained in neither here no there at this point.

The issue we have with the prolonged detention is the motivation for her detention. Most of us hold the view that her detention is politically motivated because of her political views.

Hence, we have called upon the State to either promptly take her to court or release her unconditionally.

The issue raised by the honorable Minister of first in, first out is neither here nor there.

Globally, the problem with political persecution is that the executive can use all sorts of excuses to punish their political opponents. Usually, the State uses institutions such as police, secret service and prisons to achieve these ends, many a time fronting cases that are unbailable such as treason, murder, stealing motor vehicle, etc.

We think that the case of Mrs. Mumbi Phiri falls in the category of politically motivated cases because the charge of murder that has been slapped against her does not add up, just like the case of treason that was levelled against President HH.

In a case of murder, the prosecution must prove beyond every reasonable doubt that the said action or inaction of the accused was intentional and with the knowledge that death or grievous bodily harm was its probable or foreseeable consequence. In simple terms, this means that it must be proved that although the deceased died as a result of what the accused did, the action of the accused was intentional, with the intent of killing the victim or causing grievous bodily harm to the victim.

Intents or intentions (which is called mensrea in legal parlance) is very crucial in criminal trials. It is what determines wether the accused be convicted for murder or for manslaughter. When the prosecution fails to prove that the action of the accused person is intentional to cause the death of the victim, the accused will be convicted for manslaughter instead of murder.

As a decorated lawyer of high standing in the country, the honorable Minister knows too well that in criminal trials, the standard of proof is “beyond reasonable doubt”. In simple terms, this means that the prosecution must prove that the accused committed the crime beyond every atom of doubt that the blind will see and the deaf will hear; that the accused person truly committed that crime visible to the blind and audible to the deaf. The honorable Minister also knows too well that it is usually the person who alleges that another person committed a crime that has the onus to prove that the accused person really committed the crime in question.

Now, when we read the story of the murder that occurred in Kaoma, and how it happened, the offence for which Mrs. Mumbi Phiri is alleged to have committed, it is very clear, even from blind and the deaf that in her case, the three ingredients of a murder case are lacking and cannot be proved by the State in any reasonable tribunal.

So, the only reason why State continues to incarcerate her can only be on political motivation grounds.

We earnestly advise the UPND Government to refrain or desist from such tempting abuse.

In closing, we once again appeal to President HH to intervene in the matter and release Mrs. Mumbi Phiri from this clear case of injustice.