KITWE HIGH COURT REFUSES TO ADMIT CONFESSION IN SPAX CASE
Kitwe High Court has refused to admit into evidence a confession purportedly made by a co-accused of Chingola businessman, Kabaso Mulenga, alias Spax, implicating himself in the offences he is facing.
Kitwe High Court Judge Abha Nayar Patel feels the admission by the suspect was not made voluntarily.This is in a case Boyd Kamizhi, Maclean Kamizhi, Gilbert Zimba, Sivio Kwibisa, Jimmy Bwembya and Mulenga are facing various offences, including murder, rape and attempted murder.
At the start of trial, all the accused pleaded not guilty to the charges.However, as trial proceeded, a police officer involved in investigating the matter told the court that the fifth suspect, Jimmy Bwembya, was arrested after he confessed his involvement in the alleged crimes.
But the defence rejected the State’s account of events and told the court that Bwembya was allegedly under duress to sign the statement of admission.The defence claimed Bwembya was tortured through constant beatings and starved by the police to squeeze a confession from him.
They said their client was picked from Solwezi in January last year and taken to Lusaka, where he was kept until March the same year when he signed the statement of confession.The defence applied for a trial within a trial to enable the court to assess voluntariness of the confession, an application which was granted.
Ruling on the request for a trial within a trial yesterday, Justice Patel said the burden of proving voluntariness of a confession is on the State.She said from her findings, the State failed to discharge its burden beyond reasonable doubt.
Justice Patel said it is clear the confession by the suspect was not voluntary.“The accused person was not given an opportunity to call his relatives or counsel of his choice and he was not given any food where he was held,” she said.
Justice Patel took judicial notice that Lusaka Central Police Station, where the accused was held, has no feeding facilities and this prompted the suspect to rely on leftovers from other suspects in custody at the time.Justice Patel found that the interview, which was done in the office of the flying squad, where the confession was extracted, could not have been in a free atmosphere.
She said the State also failed to give reasonable explanation why the accused was kept in their custody from January to March and was only released after confessing.Justice Patel said the State did not use the available video recording facilities to substantiate voluntariness of the confession, adding that this was negligence of duty on its part.The matter in the main trial will come up on July 8 2021.